Suraj Bhan vs State of Haryana

V.S. Aggarwal. J.

By virtue of the present revision petition Suraj Bhan petitioner assails the judgment of the learned Additional Sessions Judge, Jind dated 2.12.1987 and that of the learned Chief Judicial Magistrate, Jind dated 6.3.1987. The learned Chief Judicial Magistrate, Jind had held the petitioner guilty of the offence punishable under Section 16(1)(a)(i) read with Section 7 of the Prevention of Food Adulteration Act, 1954. He was directed to undergo rigorous imprisonment for one year and to pay a fine of Rs. 1,000/. In default of payment of fine, the petitioner was to undergo further rigorous imprisonment for four months. The appeal filed by the petitioner was dismissed by the learned Additional Sessions Judge, Jind.

The relevant facts are that Food Inspector Sher Singh and Dr. D.C. Setia were present in front of General Hospital, Jind. The petitioner came and was carrying a drum containing about 20 kilograms of milk for sale. The petitioner disclosed his name as Chander Bhan son of Ram Kishan. A sample of milk was taken after complying with the statutory formalities. One of the bottles was sent to the Public Analyst. It was found to be adulterated with milk fat and milk solids not fat 5% and 13% deficient of the minimum prescribed standard. A complaint was filed. During the trial the prosecution examined five witnesses while the defence of the petitioner was that the sample had been seized from somebody else and that the petitioner has been falsely implicated. The learned Chief Judicial Magistrate believed the prosecution version and held that it has been established that it was the petitioner who was carrying adulterated milk. With these findings, the impugned judgment was pronounced negativing the contentions of the petitioner.

As already pointed out above the appeal filed by the petitioner was dismissed.

The revision petition was filed in the year 1987. When it was listed for hearing, none appeared on behalf of the petitioner. Since it was pertaining to an incident of the year 1982, it was unnecessary again to list the matter for hearing. In these circumstances, the Court did not have the advantage of hearing the petitioner''s counsel who has not cared to appear.

The grounds of revision indicate that it had been agitated in terms that petitioner could not avail of a statutory right to get another bottle sample analysed. In other words, what could have been highlighted is that long time has elapsed before the petitioner was informed about the report of the Public Analyst. It caused prejudice to him. But in this regard certain basic facts on the record cannot be ignored. What transpired was that when the petitioner was stopped, he gave his name and address which was not correct. Petitioner gave his name as Chander Bhan. The learned Judicial Magistrate had called Inspector Sher Singh who could identify the petitioner. Specimen signatures of the petitioner were obtained. The same were got compared to link the petitioner as the person who had sold the adulterated milk. It was thereafter that due identity was established. In that event, the petitioner himself has to be blamed. He cannot take advantage of his own wrong. Consequently, this particular contention must fail.

It has also been mentioned that sample was not taken properly because according to petitioner''s grounds of revision, the sample was not stirred before it was taken. However, when the Food Inspector Sher Singh appeared, he stated that the contents were made homogeneous before the sample was taken. There is no ground to discredit the statement of Sher Singh. Both the Courts below had accepted the same. On appreciation of evidence unless there are other cogent reasons, the same cannot be ignored.

However, a fact which cannot be lost sight of is that the sample had been taken 16 years ago. With so many years having passed, whether it would be appropriate to direct the petitioner to undergo rest of the sentence. It is felt that the answer would be in the negative. This question was considered by the Supreme Court in the case of N. Sukumaran Nair v. Food Inspector, Mavelikara, 1998(4) RCR(Crl.) 248 : 1997(9) Supreme Court Cases 101. A similar argument was advanced. Accused therein had been sentenced to six months simple imprisonment. Since the matter was old the Supreme Court imposed a fine and directed that intimation be given to the appropriate Government. The State Government should formalise the matter by passing an order under Section 433(d) of the Code of Criminal Procedure. The relevant extract of the judgment reads :

"The offence took place in the year 1984. The appellant has been awarded six months'' simple imprisonment and has also been ordered to pay a fine of Rs. 1000/. Under clause (d) of Section 433 of the Code of Criminal Procedure, "the appropriate government" is empowered to commute the sentence of simple imprisonment for fine. We think that this would be an appropriate case for commutation of sentence where almost a decade has gone by. We, therefore, direct the appellant to deposit in the trial court a sum of Rs. 6000/ as fine in commutation of the sentence of six months'' simple imprisonment within a period of six weeks from today and intimate to the appropriate government that such fine has been deposited. On deposit of such fine, the State Government may formalise the matter by passing appropriate orders under clause (d) of Section 433 of the Code of Criminal Procedure."

It would be appropriate in the facts of the present case to pass a similar order. Herein also the incident took place almost 16 years ago. The appropriate Government is empowered to commute the sentence. In the present case the petitioner has already undergone a part of the sentence. The Court, therefore, feels that it is an appropriate case for commutation of sentence where 16 years have gone by. It is directed that petitioner will deposit in the trial Court a sum of Rs. 5,000/ as fine for commutation of sentence within 3 months from the date the copy of the judgment is communicated. If earlier the fine has been deposited, the same shall be adjusted. He shall intimate to the appropriate Government that the fine has been deposited. On deposit of the fine, the State Government shall formalise the matter by passing an order under Clause (d) of Section 433, Code of Criminal Procedure.

With this end result, the revision petition is disposed of. Copy of the judgment be sent to the petitioner.