Vinod Kumar vs State of Haryana

M.L. Singhal, J.

Prosecution case in brief is that on 23.7.1985 Abhey Ram, Food Inspector PW1 accompanied by Dr. P.K. Goyal PW3 visited the business premises of the petitioner in Bhiwani city near general bus stand. Wheat flour weighing 15 kgs. was found lying in a gunny bag for sale in the shop. Food Inspector joined Arvind Kumar also. After disclosing his identity that he was Food Inspector authorised to seize samples of food stuff from their vendors, he served notice Ex.PA upon the petitioner. Notice Ex.PA was signed by the accused and attested by the PWs. It was signed by the Food Inspector. Notice Ex.PA was expressive of the intention on the part of Food Inspector that he would like to have a sample of wheat flour from the petitioner with a view to have the same analysed. He purchased 600 grams of wheat flour from the petitioner on payment of Rs. 1.20 to him. Before he purchased this wheat flour lying in the gunny bag, the entire wheat flour in the gunny bag had been mixed. Petitioner gave receipt Ex.PB to the Food Inspector in token of the supply of 600 grams of wheat flour to him on receipt of 1.20. Sample so purchased was divided into three equal parts. He put each of those parts in dry and clean bottles, which were wrapped, stoppered and sealed according to the procedure laid down in the Food Adulteration Rules, 1955. Spot memo Ex.PC was prepared. One of the sealed bottles was sent to the Public Analyst, Haryana as required under the rules for analysis. On analysis the Public Analyst found the contents of the sample bottle as adulterated wheat flour inasmuch as it was found to contain total ash and ash insoluble in dilute HCl 2.54% and 0.64% against the maximum prescribed standard of 2% and 0.15% respectively and grit 0.5%. Public Analyst further found that the taste of the sample (wheat flour) was gritty. On receipt of the report of the Public Analyst complaint Ex.PF was instituted by the Food Inspector in the Court of Chief Judicial Magistrate, Bhiwani. After institution of the complaint in the Court of Chief Judicial Magistrate, Bhiwani, he informed the Local Health Authority about the institution of the complaint. Local Health Authority sent a copy of the report of the Public analyst to the accused together with a forwarding memo. Petitioner applied to the Chief Judicial Magistrate, Bhiwani for sending the second part of the sample to the Central Food Laboratory, Gaziabad. Director, Central Food Laboratory, Gaziabad vide report Ex.PG found that the sample of wheat flour was adulterated inasmuch as ash and acid insoluble ash were found above the maximum prescribed standard laid down in the rules. One dead insect was also noticed in the sample.

On the conclusion of the trial, learned Chief Judicial Magistrate, Bhiwani found the charge under Section 7/16(1)1(a)(i) of the Prevention of Food Adulteration Act, 1954 proved against the accused. He accordingly convicted him thereunder and sentenced him to undergo rigorous imprisonment for one year and to pay fine of Rs. 3000/ or in default to under go further rigorous imprisonment for six months.

In appeal, learned Sessions Judge, Bhiwani maintained the conviction but reduced the sentence to six months rigorous imprisonment and fine of Rs. 1000/. He thus partly accepted the appeal vide order dated 24.11.1987.

Not satisfied with the decision of the learned Sessions Judge, Bhiwani maintaining the conviction but reducing the sentence passed upon him by the learned Chief Judicial Magistrate, Bhiwani, petitioner has come up in revision to this Court.

It was submitted by the learned counsel for the petitioner that Vinod Kumarpetitioner was running dhaba. Assuming that he was found in possession of wheat flour on his dhaba, that wheat flour was not meant for sale as such. He was to prepare chapatis and sell them. Suffice it to say the sale of a constituent of a finished product in which the petitioner was dealing to the Food Inspector would also amount to sale within the meaning of Section 2(xiii)/7 of the Act.

It was submitted by the learned counsel for the petitioner that before the sample was allegedly taken, the same was not properly stirred and homogenised. It was submitted that when an article is exposed for sale, some dust settles on the upper layer and if the sample is taken without stirring and homogenising the contents lying in the container, the sample may not be representative sample. Suffice it to say this requirement is not applicable so far as wheat flour is concerned. In State of Haryana v. Hukam Chand, 1984(1) Prevention of Food Adulteration Cases 250, it was laid down that the necessity of thoroughly mixing is of common knowledge so far as milk is concerned as the upper layer of the milk usually contains more of cream and this principle cannot be extended to the case of adulterated Atta. In The State of Punjab v. Jagan Nath, 1986(2) PLR 466 it was observed that there is no requirement either of the provisions of the Prevention of Food Adulteration Act or the rules framed thereunder that the contents of the food stuff should be made homogeneous before the sample is drawn. It is only the rule of prudence, which requires that the contents of the food stuff should be made homogeneous before the sample is drawn but this rule of prudence does not apply to each and every food stuff. So this argument that the wheat flour had not been homogenised before the sample was drawn cannot be given any weight.

In Sham Sunder v. The State of Haryana, 1986(1) CLR 120 sample was that of Ajwain and there was no averment in the complaint made by the Food Inspector that Ajwain had been mad homogeneous before the sample was taken and the accused was given the benefits of doubt. The view taken in 1986(1) CLR 120 (supra) does not appeal to reason. It cannot be adopted in the face of a Division Bench judgement reported as 1984(1) FAC 250 (supra). It was next submitted by the learned counsel for the petitioner that the Chief Judicial Magistrate had directed the food Inspector to produce the second part of the sample on 23.10.1985 while the record shows that sample was produced on 24.10.1985. Court examined the sample on 24.10.1985 and then forwarded the same to the Central Food Laboratory. It was submitted that this circumstance should warrant an inference that the proceedings recorded by the Chief Judicial Magistrate regarding the examination of the second sample on 24.10.1985 are fictitious. Suffice it to say, statement of the accused was recorded on 24.10.1985. In that statement he stated that the seals on the sample bottle were intact and there was no leakage of any type and it be sent to the Central Food Laboratory, Gaziabad. There is observation by the Chief Judicial Magistrate dated 24.10.1985 vouchsafing that the seals on the sample were intact. It was submitted that there is no mention in the order of the Chief Judicial Magistrate that signatures of the accused had been verified on the second part of the sample and the same had been found untampered. In support of this submission, learned counsel for the petitioner cited State of Maharashtra v. Dyana Deo Ramchandra Patil, 1983(1) Prevention of Food Adulteration Cases 9 where the benefit of the aforesaid omission in the forwarding letter to the Central Food Laboratory was given to the petitioner. There is no weight in this submission as there is no order dated 23.10.1985 on the record. In proceedings dated 24.10.1985 there is statement of the accused that the seals are in order and there are observations to this effect by the Chief Judicial Magistrate.

It was next submitted by the learned counsel for the petitioner that the sample was allegedly taken on 23.7.1985. Complaint was instituted in the Court of Chief Judicial Magistrate, Bhiwani in September, 1985. Accused was convicted by the Chief Judicial Magistrate, Bhiwani on 5.8.1987. Appeal was decided by the learned Sessions Judge, Bhiwani on 24.11.1987, where also he remained convicted and sentenced. Revision was filed by him in this Court in the year 1987. It was submitted that he has faced the ordeal of this litigation for 13 years. In this case there has been denial to the accused of his right to speedy trial guaranteed under Article 21 of the Constitution of India. Right to speedy trial encompasses all stages namely the stage of investigation, inquiry, trial, appeal, revision etc. In support of this submission that on this account that the accused had been facing the ordeal of trial for 10 years or so and court should deal with him leniently in the matter of sentence, learned counsel drew my attention to Chander Bhan v. State of Haryana, 1996(1) Recent Criminal Reports 125 where it was held that the right to speedy and expeditious trial is one of the most valuable and cherished rights guaranteed under the Constitution. Fundamental rights were not a teasing illusion to be mocked at. These were meant to be enforced and made a reality. Fair, just and reasonable procedure implicit in Article 21 of the Constitution creates a right in the accused to be tried speedily. Right to speedy trial is the right of the accused. The fact that a speedy trial is also in public interest or that it serves the social interest also, does not make it anytheless the right of the accused. Keeping a person in suspended animation for 10 years or more without any case at all cannot be with the spirit of the procedure established by law. It is correct that although minimum sentence to be imposed upon a convict is prescribed by the statute yet keeping in view the provisions of Article 21 of the Constitution of India and the interpretation thereof qua the right of an accused to a speedy trial, judicial compassion can play a role and a convict can be compensated for the mental agony which he undergoes on account of protracted trial due to the fault of the prosecution by this Court in the exercise of its extraordinary jurisdiction.

Petitioner has been suffering the vagaries of this criminal trial for the last about 13 years and if the sentence passed upon him by the learned Sessions Judge is not reduced at all what will be the compensation to him who faced trial for this period during which this case has been hanging on him like a damoclean sword.

So, the sentence imposed by the learned Sessions Judge, Bhiwani is reduced to three months rigorous imprisonment. Sentence of fine together with the default clause shall remain. Subject to reduction in sentence, this revision fails and is dismissed.

Revision dismissed.