Ved Pal vs State of Haryana

S.C. Datta, J.

This revision petition is directed against the order dated 15.11.1986 passed by Shri R.N. Batra, Additional Sessions Judge, Bhiwani upholding

the order of learned Chief Judicial Magistrate sentencing the present petitioner to undergo rigorous imprisonment for six months and to pay a fine

of Rs. 1,000/ or in default of payment of fine to further rigorous imprisonment for four months. The petitioner faced trial before the learned Chief

Judicial Magistrate, Bhiwani under Section 16(1)(a)(i) of the Prevention of Food Adulteration Act.

Briefly stated, the facts of the case are that on 28.3.1982, Shri Amar Nath Gupta, Govt. Food Inspector, accompanied by Dr. Jiya Lal and

Ram Lal P.W. intercepted the petitioner (accused before the trial Court) in the area of Bhiwani at about 8.30 a.m. when the petitioner was found

carrying about 10 kilograms of cow milk in a drum, for public sale. The Food Inspector disclosed his identity to the petitioner and demanded

sample of the cow milk which was being carried by the petitioner. The Food Inspector, after stirring the milk properly, obtained 660 mls. of cow

milk on payment of Rs. 2/ for the purpose of analysis after complying with the formalities prescribed by law and adding the necessary formalin in

three bottles. The sample was sent to the public analyst for examination. On examination by the public analyst, the milk was found to be

adulterated inasmuch as the milk solids not fat were 19% deficient of the minimum prescribed standard. After receipt of the report, the Food

Inspector filed the complaint before the learned Magistrate. During trial the Food Inspector as well as Dr. Jiya Lal were examined but Ram Lal

who is said to have witnessed the occurrence was not examined by the prosecution on the ground that he had been won over by the petitioner.

The defence examined two witnesses. On conclusion of trial, the impugned judgment of conviction and order of sentence was passed by the

C.J.M., Bhiwani. As against the said order of conviction, an appeal was taken to the Sessions Judge, Bhiwani who by his order dated 15.11.1986

upheld the order of conviction and sentence passed by the learned Chief Judicial Magistrate.

The main point canvassed in this case is that there had been non compliance of the provisions of Section 13(2) of the Prevention of Food

Adulteration Act and as such the accusedpetitioner is entitled to be acquitted. Learned lawyer for the petitioner contends that the petitioner is a

resident of village Rewari Tehsil and District Bhiwani and not village Sai Rewari. He submits that the notice had been issued in the name of the

petitioner at village Sai Rewari, with the result that no notice under Section 13(2) of the PFA Act was served upon the petitioner. Therefore, he

contends that there has been a violation of provisions of Section 13(2) of the PFA Act and the accused is entitled to be acquitted.

It appears that the same point has been taken before the Appellate Court but the Appellate Court was pleased to negative the contention raised

in this behalf on the ground that the petitioner had furnished his address at the time of his interception by the Food Inspector and as such it is the

petitioner and petitioner alone who is to be blamed for the wrong address given by him. It transpires during trial that these two villages are adjacent

having common boundaries. The notice under Section 13(2) was sent to the place of the petitioner by registered post but it had not been returned

after service. It is on record that the petitioner had furnished his address to the Food Inspector at the time of interception and a notice was issued

at the address given by the petitioner. The petitioner appeared in Court in pursuance of summons issued to him but filed a petition for examination

of seized sample of milk by the Central Food Laboratory, Ghaziabad after a lapse of about three months. According to the Appellate Court, no

purpose would have been served by sending the bottle to the Director, Central Food Laboratory, Ghaziabad because in spite of use of

preservatives, the seized sample of milk must have been spoiled by this time. It appears that the Appellate Court has taken a correct view of the

matter and I find nothing to disagree.

Learned counsel for the petitioner raises another contention to the effect that there being only marginal deficiency in the milk solids not fat, the

petitioner should not have been convicted. Learned lawyer for the State has drawn my attention to the case of State of Punjab v. Teja Singh,

1976(II) FAC 44. It has been laid down therein that negligible or marginal deviation from the prescribed standard laid down by the PFA Act

cannot be ignored and acquittal cannot be recorded on that basis. On the basis of the said finding, I find no hesitation to disagree with the

contention raised by the learned lawyer for the petitioner.

Another point has been taken regarding stirring of the milk during the seizure by the Food Inspector. It has been contended that the milk had not

been stirred before the sample was taken by the Food Inspector, with the result that upper layer of the milk contained more fat. Learned lawyer

submits that before taking sample of the milk, it should have been stirred so as to make it homogeneous. It is noticed from the evidence adduced

by the prosecution witness that the milk was stirred before the sample was taken. There is nothing on record to show that the milk was not made

homogeneous. It is, of course, true that no independent witness was examined by the prosecution to tell the seizure of milk from the present

petitioner but then I find from the material on record that the said witness was won over by the defence during trial. It has been held in a case

reported in State of Haryana v. Kirpa Ram, 1985(2) PFA Cases 39 that stirring of the part of the milk seller could be presumed from the very

nature of the circumstances in which the milk was sold. Therefore, relying on this decision, contention raised by the learned lawyer for the petitioner

is rejected.

Learned lawyer for the State relies on a decision of this Court reported in State of Punjab v. Ramesh Kumar, 1984(2) Recent Criminal Reports

210 : 1984(1) PFA Cases 201 to contend that there are standards prescribed for fat and nonfatty solids and the law does not contemplate

condonation of deficiency in one constituent by the excess of the other constituent. The authorities vested with power necessary in this behalf fixed

the margins of variability after proper consideration and it is not the function of the Courts to lay down any parallel standards of their deficiency.

This is a division bench (sic) on the judgment, it must be held that the deficiency in the nonfatty solids cannot be ignored.

The last point urged by the learned lawyer for the petitioner is that the petitioner has suffered the agony of trial for so many years and as such he

is entitled to be acquitted of the charge. He draws my attention to the fact that the incident happened in March, 1982, the trial by learned Chief

Judicial Magistrate was concluded on 2.2.1984. Appeal was disposed of on 15.11.1986. The matter is pending before this Court since 1986. The

learned lawyer for the petitioner contends that the petitioner has suffered imprisonment for several days before being bailed out. He submits that

the milk which the petitioner was carrying at the time of interception was only 10 kilograms. It cannot be overlooked that during all these thirteen

years, the petitioner was put to much harassment and mental agony. The sword of litigation is hanging over his head. He must have incurred

considerable expenditure in defending the case. Therefore, having considered all the circumstances, it seems that the interest of justice would be

met, if the entire proceedings are quashed and the petitioner is acquitted. Accordingly, in the exercise of powers of this Court under Section 482

Cr.P.C., the entire proceedings are quashed and the petitioner is discharged from the bail bond. The fine, if any, paid, be refunded to the

petitioner.