Subhash Chand vs State of Haryana

S.S. Grewal, J.—This revision petition is directed against the order of Sessions Judge, Jind dated 25th October, 1990 whereby the order passed by the Chief Judicial Magistrate, Jind, dated 28th May, 1990, convicting the petitioner u/s 16(1)(a)(i) read with Section 7 of the Prevention of Food Adulteration Act, 1954 (hereinafter referred to as the Act) and sentencing him to undergo rigorous imprisonment for six months and to pay a fine of Rs. 1000/- and in default of payment of fine to undergo further rigorous imprisonment for three months, was maintained.

In brief facts relevant for the disposal of this petition, are, that on 26-10-1987, Piara Lal, Government Food Inspector along with Dr. V. K. Dogra, went to the shop of the petitioner, who was found in possession of 8 Litres of cow''s milk for sale to the public. After disclosing his identity, the Food Inspector served notice on the petitioner and thereafter purchased 750 M.L. of cow''s milk as sample for analysis on payment of Rs. 3/-. The sample so purchased was put into three dry and clean bottles which were stoppered, wrapped, sealed in accordance with the Rules and duly taken into possession through seizure memo. One such bottle was sent to the Public Analyst through registered parcel along with copy of memo in form VII, and, the remaining bottles were deposited with the Local Health Authority. The Public Analyst vide his report Ex. PF found that the sample of milk was adulterated in milk solids containing fat by 15 per cent and milk solids not containing fat by 26 per cent from the minimum prescribed standard. Thereafter the complaint was duly filed. The petitioner was charged, tried, convicted and sentenced as indicated above. When examined u/s 313 of the Code of Criminal Procedure, the petitioner denied the prosecution allegations appearing in evidence against him and pleaded false implication. He, however, did not produce any evidence in his defence.

The learned counsel for the parties were heard.

The learned counsel for the petitioner relying on the Full Bench authority of this Court in Budh Ram v. State of Haryana 1985 (2) Recent C R 510 : 1985 Cri L J 311 and Single Bench authority of this Court in Ashok Kumar v. The State of Haryana 1990 CC Cases 98, submitted that in the present case the trial Magistrate erred in law in not trying the petitioner summarily, and, committed illegality and not mere irregularity in following the procedure meant for trial as a warrant case. As such the order of conviction and sentence passed against the petitioner by the Courts below cannot be legally sustained.

It is true that the trial Magistrate committed irregularity in following the procedure meant for trial as a warrant case instead of trying the petitioner summarily, particularly when the trial Court did not apply its mind that the nature of the case was such that the sentence of imprisonment exceeding one year was to be passed, or, that for any other reason it was undesirable to try the case summarily as provided under proviso (2) to Section 16A of the Act.

This argument is devoid of any merit. No finding, sentence or order passed by the trial Court in the instant case can be reversed or altered on account of any error omission or irregularity in the complaint, summons, warrant proclamation, order, judgment or other proceedings before or during trial unless in the opinion of the Court a failure of justice has in fact been occasioned thereby, as contemplated u/s 465 of the Code of Criminal Procedure, 1973 (hereinafter referred to as the Code). I find support in my view by the authoritive pronouncements of their lordships of the Supreme Court in case Gopal Das Sindhi and Others Vs. State of Assam and Another, wherein it was observed as under AIR 1961 SC 989 :--

"It is true that after the amendment of the Criminal Procedure Code an offence u/s 448 is triable as a summons case and Mr. Goswami adopted the procedure prescribed for a case triable as a warrant case. We are, however, of the opinion that this irregularity does not vitiate the proceedings and is curable by the provisions of Section 537, as no prejudice to the accused has been established in the case."

The authority in Gopal Das''s case (supra) was neither noticed nor discussed in Full Bench authority of this Court in Budh Ram''s case referred to above. It seems that the aforesaid authority of the apex Court in Gopal Das''s case was neither brought to the notice of the Full Bench which decided Budh Ram''s case, nor, in Ashok Kumar''s case (supra) it was brought to the notice before the single Bench. The principle of law enunciated in aforecited authority of the apex Court in Gopal Das''s case has to be preferred and followed by this Court. Taking into consideration the facts and circumstances of the present case, it is quite apparent that the petitioner has been awarded minimum sentence of six months and a fine of Rs. 1000/- as required u/s 16(1)(a)(v) of the Act even though the procedure for warrant case was followed by the trial Court. The latter could pass a sentence of imprisonment not exceeding one year even if it followed the summary procedure as contemplated under 1st proviso to Section 16A of the Act. Thus, in the instant case, it cannot be said by any stretch of imagination that any material prejudice has been caused to the petitioner by following warrant procedure. It is difficult to comprehend that in case detailed procedure meant for trial of a warrant case followed by the trial Court, instead of summary procedure which is comparatively much shorter and does not give that much scope or opportunity to the accused either to cross-examine the prosecution witnesses, or, to lead his defence, such an accused can make genuine grievance that such procedure has caused material prejudice to him. Such an omission on the part of the trial Court would amount to mere irregularity and not illegality which would go to the root of the case. In such an eventuality the irregularity in the procedure followed by the trial Court is curable u/s 465 of the Code.

The omission to follow summary procedure in the instant case instead of following procedure meant for warrant case would amount to a mere irregularity and cannot be deemed to be an illegality as contended by the counsel of the petitioner. Thus the irregularity in following the proper procedure, in the present case, referred to above is curable u/s 465 of the Code and the orders of conviction and sentence passed by the Courts below cannot be set aside on this score.

Faced with this situation it was further submitted by the learned counsel for the petitioner that the contents of Patila containing milk were not properly stirred before taking sample and on that ground also the order of conviction and sentence passed by the Courts below were liable to be set aside. Reliance in this respect was placed on single bench authority of this Court in Ishwar Singh v. The State of Haryana 1990 CC Cases 76 wherein dealing with the testimony of the Food Inspector to the effect that he had stirred the contents of the drum containing milk with the help of a milk measure is of no consequence, because, even if the cow milk is taken out of the drum with the help of a milk measure and repoured, in order to stir it, it is not likely that the entire contents of the drum upto the depth of its bottom will be stirred in such process, on the other hand, it will amount to blowing the milk which in turn would result in accumulation of cream or fatty solids towards the top of the container; that is what appears to have precisely happened in the case in hand because the report of the Public Analyst Exhibit PE reveals that milk fats in the sample were 6.1% as against the minimum prescribed standard of 4% while milk solids not fat were 7.2% as against the minimum prescribed standard of 8.5% this can happen only if the milk is not properly stirred before taking the sample; the evidence of Dr. P.C. Garg, a senior Scientist in the National Dairy and Research Institute, Karnal, DW. 1 also reveals that milk could not properly be stirred with the help of a milk measure, the conviction of the accused was not held to be sustainable as the sample was deficient in non-fatty solids only while fat contents were more than the prescribed standard.

In the present case, apart from the fact that there is the positive finding of the Courts below that the milk was thoroughly stirred, other relevant facts, were entirely different from those mentioned in Ishwar Singh''s case (supra). In that particular case, the drum contained 40 Kgs. of milk and there was specific evidence that the contents of the milk in the said drum were not properly stirred. Besides, the sample in the said case was deficient in milk solids not fat while the contents of fatty solids in sample of milk were more than the prescribed standard. On the other hand in the present case the quantity of milk from where the sample was taken was much less, the same has been properly stirred as per finding of the Courts below and the sample of milk was found deficient both with regard to milk solids containing fat, as well as milk solids not containing fat, from the minimum prescribed standard for the cow''s milk by a much greater margin. The aforecited authority in Ishwar Singh''s case, referred to above, is thus not applicable to the facts and circumstances of the case in hand, and, is clearly distinguishable.

No other point was urged.

For the foregoing reasons, I do not find any merit in this petition and upholding the order of conviction and sentence passed by the Courts below against the petitioner, this petition is hereby dismissed.