Ram Prasad v. State of U. P. — 1967 DIGILAW 487 (ALL)

JUDGMENT S.D. Singh, J. - This is an application in revision against the judgment of the Civil and Sessions Judge, Agra, upholding the conviction of the applicant u/S. 7 read with S. 16 of the Prevention of Food Adulteration Act, XXXVII of 1954, but while the sentence of six months rigorous imprisonment awarded by the Magistrate was reduced to a sentence till the rising of the Court, the sentence of Rs. 1,000/- fine awarded to him by the Magistrate was confirmed. 2. Sri K. Singh, the Food Inspector under the Agra Municipal Corporation, visited the shop of the applicant at about 7 a.m. on 8-6-1965, and took a sample of milk which is alleged to have been exhibited at the shop for sale u/S. 7 of the Prevention of Food Adulteration Act aforesaid (to be referred to hereafter as the Act). The applicant was paid the price for the milk taken from him and the milk was divided into three parts, each part was filled in separate phials which were sealed on the spot and one of them was handed over to the applicant, another retained in the municipal office and the third sent to the Public Analyst for examination. The report of the Public Analyst was that the sample of milk which was sent to him was deficient in non-fatty solids to the extent of 17% Thereupon the applicant was prosecuted u/S. 7 read with S. 16 of the Act and convicted and sentenced as aforesaid. 3. Several questions were raised during the hearing of this revision. It was urged that only one witness, Dal Chand, was required to sign the papers relating to the taking of samples though under the law it was necessary for him to take signatures of at least two witnesses and even this one witness was an employee of the municipal corporation and he was consequently not independent. The provision for the Food Inspector calling at least two persons to be witnesses when samples are taken by him was, however, to be found in sub. S. (7) of S. 10 of the Act before it was amended by the Amendment Act, 49 of 1964. The provision for the Food Inspector calling at least two persons to be witnesses when samples are taken by him was, however, to be found in sub. S. (7) of S. 10 of the Act before it was amended by the Amendment Act, 49 of 1964. The sample of milk in this case was taken on 8-6-1965 and it was the amended sub-S. (7) of S. 10 which was therefore applicable to the facts of this case and all what the Food Inspector was therefore required to do was to "call one or more persons to be present at the time when such action is taken and take his or their signatures." What actually happened, however was that the Food Inspector took the signatures of three persons Dal Chand, Lala Ram and Mathura Prasad. It was only Dal Chand, however, who was examined in this case. This does not introduce any illegality or irregularity in the trial. It may be that Dal Chand was an employee of the municipal corporation and one may suppose for the purpose of this case that he was not quite independent, but all the same the applicant does not challenge the fact that the sample of milk was taken by the Food Inspector, the price there of paid and the milk placed in three phials, sealed in due course and one phial containing the sample of milk handed over to the applicant. He as a matter of fact made an endorsement Ex. Ka. 7 in his own writing on the document, Ex. Ka. I, in Hindi which reads:- " eSaus viuh VUdh esa ls nw/k dk uewuk fn;k tks eSaus xk; cdjh dk vk/kk&vk/kk feyk gqvk crk;k gS ;s nw/k eSa 80 iSls yhVj ds fglkc ls csp jgk gwWa ,d 'kh'kh eksgj yxh vkSj 660 feyh yhVj nw/k ds 60 iSls olwy ik;k fy[kus okyk [kqn n0 jke izlkn rk0 8&6&65 bZ0A" Ext. Ka-2 is the receipt, which was given by him for receipt of the price of the milk. The endorsement made by the applicant on Ext. Ka 1 clearly shows that he ha pretty good knowledge of Hindi, and it cannot be said that the endorsement was made by him, or the receipt (Ext. Ka-2) was signed by him, without understanding the significance of what he was doing. The endorsement made by the applicant on Ext. Ka 1 clearly shows that he ha pretty good knowledge of Hindi, and it cannot be said that the endorsement was made by him, or the receipt (Ext. Ka-2) was signed by him, without understanding the significance of what he was doing. All these facts were even admitted by the applicant in his statement before the Magistrate, though he has made a qualifying statement that the Food Inspector was going to have him arrested by the police and the suggestion was that it was probably under that threat that he made the endorsement and signed the receipt. This statement, however, is not supported by any evidence examined on behalf of the applicant in the case. The only other qualifying statement made by the applicant was (and that leads to h is case in defence) that the milk, from which the sample was taken by the Food Inspector, was not intended for sale, but meant for consumption in his house. But that is not what is brought out by the endorsement, which he made on Ext. Ka 1. There he clearly stated that he was selling this milk at 80 paise per litre. If this milk was not intended for sale, he was not obliged to sell any part of it to the Food Inspector and accept price thereof from him. The contention that the milk was meant for consumption at his house appears to be an after thought. Though Ram Lachhan (DW 1) has deposed that the applicant does not sell milk and that he was telling the Food Inspector when the sample was being taken that the milk was not meant for sale but was for being consumed at his house, this contention cannot possibly be accepted as correct. There is no evidence as to from whom the applicant had purchased the milk and for what price. The statement of the Food Inspector shows that the applicant was selling the milk and it is not possible to disbelieve the statement of the Food Inspector on this point, when it is fully corroborated by the documents Exts. Ka-1 and Ka-2, which were prepared on the spot. 4. The statement of the Food Inspector shows that the applicant was selling the milk and it is not possible to disbelieve the statement of the Food Inspector on this point, when it is fully corroborated by the documents Exts. Ka-1 and Ka-2, which were prepared on the spot. 4. It was then urged that the sample of the milk, which was sent to the Public Analyst, was examined by him after a considerable gap of time, and there might have been material changes brought about in the sample resulting in a variation of the non-fatty solids thereof. The sample was taken on 8-6-1965, and the report of the Public Analyst (Ext. Ka-5) is dated 7-8-1965. The report also shows that the sample was received by the Public Analyst on 19-6-1965. There was, therefore, certainly delay in the examination of the sample by the Public Analyst. If the sample reached the office of the Public Analyst on 19-6-1965, there is no ostensible reason why the examination of the sample should have been delayed till 7-8-1965. The only possible reason could be : (though there is nothing on record to indicate the same) that the sample could not be examined on account of pressure of work. It may be that there were too many samples, which had accumulated there, and they were being examined in the serial order, in which they were received. If this is the reason why the sample could not be examined earlier than 7-8-1965, then it would be desirable for the State Government to see that the staff in the laboratory of the Public Analyst is sufficient to enable him to handle the samples and send the reports within a very short time after the receipt of the samples. The Public Analyst has, however, mentioned in his report that no change had taken place in the constituents of the milk, which would have possibly interfered with the analysis. That means, therefore, that even though the sample of milk remained with the Public Analyst for about a month and a half, no change had taken place in the constituents of the milk and the result of the examination was not, in any way, affected by the delay. 5. That means, therefore, that even though the sample of milk remained with the Public Analyst for about a month and a half, no change had taken place in the constituents of the milk and the result of the examination was not, in any way, affected by the delay. 5. Another contention on behalf of the applicant was that though u/R. 18 of the Rules framed under the Act, a copy of the memorandum and specimen impression of the seal which was used to seal the packet are required to be sent to the Public Analyst separately by registered post or delivered to him or to any person authorised by him, no such impression of the seal was sent to him in this case, and that, therefore, he could not have satisfied himself that the seals of the packet were in tact. The Public Analyst has, however, certified in his report (Ext. Ka-5) that he found the seal in tact and unbroken. If under the Rules, specimen impression of the seal is to be sent to him, it naturally follows that before certifying in his report that the seal of the packet was found in tact and unbroken, he has to compare the seals on the packet with the specimen impression of the seal sent to him. There is no direct evidence in this case that the specimen impression of the seal was sent to the Public Analyst ; but, since he has certified that the seal of the packet was in tact and unbroken, it may be presumed that he must have received the specimen impression of the seal and compared the seal on the packet with that specimen impression. 6. The Food Inspector was even questioned in respect of the sending of the specimen impression of the seal to the Public Analyst and he has deposed that he did send this specimen impression and even his specimen signatures to the Public Analyst, though he could not give out the the date when it was done. He has further deposed that the specimen seal must have been sent by the office under registered cover. He has further deposed that the specimen seal must have been sent by the office under registered cover. If it was intended on behalf of the applicant to press this point further, the Food Inspector should have been asked to bring the necessary records from the office or the duplicate office copy of the letter which was sent to the Public Analyst, and produce the same in court. There being no such attempt on behalf of the applicant, there is no reason to believe that the sample sent to the Public. Analyst was, in any way, interfered with or changed by the Food Inspector. Apart from this, another sample of the milk was retained by the applicant and was in his possession. It was open to him, if he thought that the sample, which was sent to the Public analyst, was not the same, as was taken from him, he could have got his own sample analysed u/S. 13 of the Act. 7. Connected with the last contention is the contention of the applicant that the prosecution in this case was launched by the Municipal authorities long after the sample had been taken and that he was, as a result thereof, deprived of his right u/S. 13 of the Act to get a second analysis of the sample done by the Director of Central Food Laboratory. Reliance in support of this dintention was placed on an unreported decision of this Court, which was published in Northern India Patrika dated 9-12-1967. Since the particulars of the case, in which that decision was given, were not avaelable, the judgement of the Court could not be examined. But the view taken in that case appears to be that if the prosecution is delayed by near about 10 months there would be material alterations, in the sample of milk originally given to to the person prosecuted against, and consequently, he would be deprived of his right u/S. 13 aforesaid to get the sample analysed by the Director of Central Food Laboratory. I do not, however, find it possible to accept the contention that merely because of delay in prosecution, that person is deprived of any right, which is given to him u/S. 13 of the Act. That right remains in tact. I do not, however, find it possible to accept the contention that merely because of delay in prosecution, that person is deprived of any right, which is given to him u/S. 13 of the Act. That right remains in tact. It may be, as was contended before me, that as a result of passage of time, the sample of milk undergoes some fatty solids cannot be correctly determined. If it so happens that on the second analysis of the sample u/S. 13 aforesaid, it is reported that the milk had undergone a change resulting in variation in the non fatty solids contents thereof, the benefit of this analysis would undoubtedly go to the accused. It could in that case be the contention of the accused that if the prosecution had been launched in time and the sample could be analysed in the Central Food Laboratory before the milk could undergo any material change, the result of the analysis might have been different from that of the Public Analyst and the milk might have been found to be not difficient in any contents. But so long as the accused does not actually get the sample given to him by the Food Inspector, analysed in the Central Food Laboratory and obtain a report that the sample had actually undergone some such change, it cannot be argued on his behalf that he has been deprived of any valuable rights given to him u/S. 13 of the Act. 8. Apart from this, the prosecution in this case has not been so much delayed that any such argument could be advanced on the basis thereof. As has been pointed out by me earlier, the sample was taken on 8-6-1965, and the complaint against the applicant was received by the Magistrate on 22-10-1965. It means, therefore, that the prosecution was launched within four and a half months. If even this delay were enough for bringing about any material change in the sample of the milk which was given to the applicant, his case would have been on surer grounds, but no attempt was made by him to get his sample, analysed u/S. 13 of the Act. It cannot, therefore, be said that his case has, in any Lay, been prejudiced by any delay on the part of the Municipal authorities to prosecute him. 9. It cannot, therefore, be said that his case has, in any Lay, been prejudiced by any delay on the part of the Municipal authorities to prosecute him. 9. In that view of the case, the application in revision has no force. 10. It was then contended before me that, in any case, the punishment awarded to the applicant is excessive. The minimum punishment for the first offence u/S. 7 read with S. 16 of the Act is rigorous imprisonment for a period of six months and a fine of Rs. 1,000/- Cl. (ii) of the proviso to S. 16(1), however, provides that the court may, for any adequate or special reasons impose a sentence of imprisonment for a term of less than six months or of fine of less than one thousand rupees, or both imprisonment for a term of less than six months and fine of less than one thousand rupees. The Sessions Judge was of the opinion that reasons existed in the case for which the minimum punishment prescribed Susubsub/. (1) of S. 16 of the Act might not be imposed on the applicant, and he, therefore, reduced the imprisonment till the rising of the court though he allowed the sentence of fine to remain as awarded by the Magistrate. Nothing has been brought on record about the status of the applicant and the extent of his dealings. It appears, however, that he only sells milk without having any specific shop and I think a fine of Rs. 1,000/- against him is a bit excessive. Since the applicant does not appear to be a man of substantial status the fine should, in my view, be, at least to some extent, in proportion to the means of the accused. I would reduce the amount of fine to Rs. 250/-, though if the entire punishment were to be reconsidered by me, I might not have agreed to reduce the imprisonment till the rising of the court. 11. The application in revision is allowed to this extent only that the amount of fine is reduced from Rs. 1,000/- to Rs 250/-. Any amount, which may have been realised in excess of the same, will be refunded to him forthwith. In all other respects the application is dismissed. The order staying the realisation of fine will stand withdrawn. Out of the amount of fine realised Rs. 1,000/- to Rs 250/-. Any amount, which may have been realised in excess of the same, will be refunded to him forthwith. In all other respects the application is dismissed. The order staying the realisation of fine will stand withdrawn. Out of the amount of fine realised Rs. 150/- will be paid to the Municipal Corporation, Agra, u/Cl. (a) of sub S. (1) of Sec. 545 of the Cr.PC. Revision dismissed.