Vinod Layall vs State of Haryana

V.M. Jain, J.

This revision petition has been filed by the accused petitioner against the judgments passed by the Courts below whereby the learned Chief Judicial Magistrate had convicted the accusedpetitioner under Section 16(1)(a)(i) of the Prevention of Food Adulteration Act and had sentenced him to undergo rigorous imprisonment for 9 months and to pay a fine of Rs. 1000/ and in default of payment of fine, to undergo further rigorous imprisonment for 4 months and the appeal filed by the accusedpetitioner was dismissed by the learned Additional Sessions Judge, upholding his conviction, whereas the sentence was reduced to 6 months rigorous imprisonment and fine Rs. 1000/.

The facts in brief are that on 30.9.1983. Food Inspector had taken the sample of Vanasapti Ghee from the canteen of the accusedpetitioner. The said sample was sent to the Public Analyst, who reported that the sample was adulterated. Resultantly, the Food Inspector filed complaint in the Court of Chief Judicial Magistrate. After recording the evidence of complainant, the statement of the accused was recorded in which he denied the prosecution allegations against him and stated that he was innocent and had been falsely implicated in this case.

After hearing both sides, the learned Chief Judicial Magistrate convicted and sentenced the accusedpetitioner, as referred to above. The appeal filed by the accused was dismissed by the learned Additional Sessions Judge with the modification on the question of sentence, referred to above. Aggrieved against the same, the accused filed the present revision petition in this Court.

The learned counsel appearing for accusedpetitioner submitted before me that in the present case, the accusedpetitioner is entitled to be acquitted on the short ground that at the time of taking of sample, the Food Inspector had not stirred the Vanaspati Ghee nor the Vanaspati Ghee was heated before taking the sample. Reliance has been placed on the law laid down by this Court, in the case of Mitha Ram v. State of Punjab, 1989(II) Prevention of Food Adulteration Cases 34 : 1989(2) RCR(Crl.) 100 (P&H). No authority to the contrary has been cited before me by the learned counsel appearing for the respondent State.

In the present case, PW2, Dr. A.P. Gulia had admitted in his cross examination that the ghee was in frozen condition. On the other hand, S.K. Sharma, Food Inspector had stated that the sample was taken after stirring the Vanaspati Ghee properly. In my opinion, the statements of these two witnesses are contradictory in nature, in as much as it is not the case of the prosecution that the ghee which was in frozen condition was heated and then stirred before taking the sample. It was the duty of the prosecution to lead evidence on the record to show that the ghee was stirred before taking of sample and in case the ghee was in frozen condition, to have heated the same and thereafter, after stirring the same, to take the sample. No such evidence was led by the prosecution. In 1989(II) Prevention of Adulteration Cases 34 (supra), it was held by this Court that in the case of Vanaspati Ghee, the contents of the entire tin should be heated so that they change from semi solid state to the liquid state and the contents of the tin should be thoroughly stirred. It was further held that this becomes all the more necessary as there is a prescribed limit for the melting point and if it is above the maximum prescribed, the sample would be adulterated. It was further held that it becomes, thus, necessary to have the food stuff, homogeneous in character by melting and stirring. In the present case, as referred to above, there is nothing on record to show that the ghee which was in frozen condition was heated and melted and thereafter, after stirring the sample was taken. Furthermore, in the present case, the Public Analyst had found the sample to be adulterated because it was found that the sample gave Butryo refractometer reading at 40 degree C 47.9 Vitamin A was absent and melting point 39.5 degree C against the minimum & maximum prescribed standard of 48, 26 I.U & 37 degree C, respectively.

In view of the law laid down in Mitha Ram''s case (supra) and in the facts and circumstances of the present case, in my opinion, the Courts below had erred in law in convicting and sentencing the accusedpetitioner. Accordingly, the present revision petition is allowed. The Judgment and JUDGMENTs passed by the Courts below are set aside and the accusedpetitioner is acquitted of the charge framed against him.