Bal Kishan v. State of Rajasthan — 1997 DIGILAW 159 (RAJ)

Honble KHAN, J. – In this case PW 1 Dr. H.P. Nandi, the then Dy. Chief Medical Officer cum Food Inspector, Bharatpur is stated to have purchased the sample mixed milk from the shop of the petitioner at Basan Gate, Bharatpur on 7.3.1981 and got the same analysed by the Public Analyst who declared the same adulterated for being deficient in solid-non-fat contents by 0.5% and having 6% of added water. On trial, the learned Chief Judicial Magistrate, Bharatpur found the petitioner guilty of offence u/s. 7/16 of the Prevention of Food Adulteration Act, 1954 (the Act), convicted him as such and sentenced him to S.I. for one year and fine of Rs. 2,000/-. On appeal, the learned Addl. Sessions Judge, Bharatpur confirmed the order of conviction as also of sentence as had been made by the learned CJM. Hen- ce this petition u/s. 397 Cr.P.C. (2). Mr. Tripurari Sharma, the learned counsel for the petitioner vehemently urged that in this case grave injustice has been caused to the petitioner by not appreciating the evidence on record in right perspective with particular reference to the defence evidence brought on the record of the case. It was also pointed out that the milk was not only meant for petitioners own use but also was found deficient by 0.5% in solids non-fat whereas the fat contents were much in excess of the prescribed standard. It was submitted that, at any rate, the case was of very doubtful character and reliance in this behalf was placed on a decision of Madhya Pradesh High Court in Babu Lal vs. State of M.P.(1). The Learned Public Prosecutor, however, supported the impugned judgment and orders. (3). This Court does not ordinarily disturb the concurrent findings of fact in exercise of its revisory powers u/s. 397 Cr.P.C. unless it feels, on examination of the records of the inferior Courts, that such findings are incorrect and the orders made improper. In order to satisfy myself as to the correctness of the findings recorded and the propriety of the order of conviction of the petitioner made. I examined the record of the inferior Courts and came to the conclusion that this is a fit case wherein this Court should interfere. (4). In order to satisfy myself as to the correctness of the findings recorded and the propriety of the order of conviction of the petitioner made. I examined the record of the inferior Courts and came to the conclusion that this is a fit case wherein this Court should interfere. (4). The offence in this case is stated to have been committed on 7.3.1981, the sample milk was analysed on 13.4.1981 but the written consent u/s. 20 of the Act for initiation of prosecution was accorded by the specified authority, one Dr. B.G. Kamthan, Dy. C.M. & H.O. (H) Bharatpur, as late as on 7.51982. Even after the late conferment of the authority to file complaint against the petitioner, the complaint was filed as late as on 30.3.1983 i.e. after the lapse of about 2 years of the commission of alleged offence. In para No. 3 of the complaint only four witnesses were cited for examination in Court. This list did not include the complainant Dr. B.G. Kamthan who had filed the complaint with inordinate delay. On 9.11.1983 the A.P.P. made a request to the Court to summon two more witnesses namely Dr. Dinesh Kumar Arya and Dr. O.P. Mathur, both retired C.M. & H.O.s. On that day PW 1 Dr. H.P. Nandi was examined and the course of his examination he had deposed that after filing the complaint the copy of the report of the Public Analyst had been sent to the petitioner as required by Sec. 13(2) of the Act. This application came to be disposed of on 27.3.1985 when the said application was allowed. Dr. Dinesh Kumar Arya could not be produced by the prosecution but Dr. O.P. Mathur could be produced on 20.6.1988 and was examined on that day. He deposed to have sent the copy of the report of Public Analyst on 4.4.1983 vide letter Ex. P/9 and postal receipt Ex. P/10. The date on the receipt is illegible. (5). Dr. Dinesh Kumar Arya could not be produced by the prosecution but Dr. O.P. Mathur could be produced on 20.6.1988 and was examined on that day. He deposed to have sent the copy of the report of Public Analyst on 4.4.1983 vide letter Ex. P/9 and postal receipt Ex. P/10. The date on the receipt is illegible. (5). Examination of the record of proceedings of the trial Court had to be made in the manner stated above for the reason that though the offence alleged to have been committed in this case was a socio-economic offence and according to the statutory mandate contained in Sec. 16-A was to be speedily tried in a summary way but, as is evident from the narration of the facts made above, most negligent, if not deliberate, attitude was adopted by the authorities concerned in the eradication of such an evil threatening the very health of the people. Persons responsible for carring for and curing the diseases to the health of the people were not only entrusted with the job of finding out of the culprits but also of bringing them to books. Although almost all the top brass of the health department at Bharatpur at the relevant time are shown, in one way or other, to be actively associated in the prosecution of an offender under the Act in this case but their conduct and attitude towards the offence and offenders, as indicated above, betray their faith and will in the eradication of the evil of adulteration. Such state of the conduct of the prose- cution in this case not only made this Court to examine the prosecution evidence some what more critically but also to consider the preponderance of probability in the defence version and the statements of the defence witnesses. (6). PW 1 Dr. H.P. Nandi is not less a person than the Food Inspector in this case. He was the Dy. C.M. & H.O., Bharatpur at the relevant time. After stating the introductory and other relevant facts in his statement recorded on 8.11.1993 he stated that he had sent one of the three samples of the milk to the Public Analyst and deposited the remaining two with Dr. D.K. Arya, aforementioned, vide receipt Ex. P/4. But in the next breath he stated that as per written instruction from Dr. After stating the introductory and other relevant facts in his statement recorded on 8.11.1993 he stated that he had sent one of the three samples of the milk to the Public Analyst and deposited the remaining two with Dr. D.K. Arya, aforementioned, vide receipt Ex. P/4. But in the next breath he stated that as per written instruction from Dr. S.P. Johri, he had kept the remaining two parts of the sample milk with him. Since such an order of Dr. S.P. Johri, as was stated to be authorising the witness to keep with him the two parts of the samples taken by him, in all cases, as asserted by the witness, in contravention of the provisions contained in Secs. 7,11 of the Act and the relevant rules made thereunder, had not been placed on the record of the case, the examination-in-chief of the witness was deferred on the request of the Addl. Public Prosecutor to enable the witness to produce such an order. He could not produce the same on the following day. This aspect of the statement and conduct of the witness makes his testimony quite doubtful. Anyway, on being cross-examined he stated that he neither asked the petitioner if he was a licensed dealer of milk nor called any independent person to witness the transaction of purchase and sale of milk and sampling and sealing the three parts of the sample milk. PW 2 Nawal Singh is the IVth class employee working under Dr. Nandi at the relevant time. He spoke almost in the same tone as did his master. He could not tell whether he had seen the petitioner selling milk to any other customer. PW 3 Samrey was examined as an independent witness in the case but he turned hostile and did not support prosecution case. PW 4 Dr. Dinesh Kumar Arya is the prescribed authority giving written consent Ex. P/9 for prosecution of the petitioner. PW 5 Dr. P.P. Mathur stated to have sent the copy of the report of the Public Analyst to the petitioner, vide Ex. P/9 and Ex P/10. (7). At the cost of repetition it may again be pointed out that the sample was taken on 7.3.1981 by Dr. P/9 for prosecution of the petitioner. PW 5 Dr. P.P. Mathur stated to have sent the copy of the report of the Public Analyst to the petitioner, vide Ex. P/9 and Ex P/10. (7). At the cost of repetition it may again be pointed out that the sample was taken on 7.3.1981 by Dr. Nandi who did not send the two parts of the samples to the Local (Health) Authority as required by the provisions of the Act and the Rules made thereunder, the sample was examined on 13.4.1981 by the Public Analyst who did not mention the date of the receipt of the sample in his report and sent the report not earlier than 16.4.1981, the written consent is accorded on 7.5.1982 on Dr. B.G. Kamthan (why not on Dr. Nandi, the Food Inspector) who does not file the complaint earlier to 30.3.1983 and also does not like to cite Dr. D.K. Arya, Dr. O.P. Mathur and himself as witnesses in the case. The delay in filing the complaint for an offence triable expeditiously in a summary manner was not explained. Such a callous attitude of all these responsible persons from medical profession, em- ployed in the service of the people, towards the gravity of an offence of adulteration in food articles requires this Court to have a look at the defence evidence and consider the possibility thereof as being probable. (8). The version advanced by the petitioner in his defence was to the effect that he used to manufacture `Agarbatti at his shop in partnership with one Banwari and was in criminal litigation with Om Prakash Compounder in respect of the compromise of which Dr. Nandi had approached the petitioner but he had declined to enter into a compromise. His version further was that with a view to hold a `Kattha to celebrate the birth of his newly born son he had purchased 3,4 Kg. of milk which was kept at the shop in a ``Bhagona where from a sample was taken despite his protest. In support of this version he had examined DW 2 Damodar Lal and DW 3 Hari Dass besides himself as DW 1 and had also produced the copy of the partnership deed dated 20.2.1982 Ex. D/1 copy of the Assessment Order made by Asstt. Commercial & Sales Tax Officer for year 1982-83 (Ex. D/2). In support of this version he had examined DW 2 Damodar Lal and DW 3 Hari Dass besides himself as DW 1 and had also produced the copy of the partnership deed dated 20.2.1982 Ex. D/1 copy of the Assessment Order made by Asstt. Commercial & Sales Tax Officer for year 1982-83 (Ex. D/2). Copy of the order sheet dated 24.5.1979 in Criminal Case No. 66/78 State vs. Om Prakash, (Ex. D/3) and copy of order sheet dated 6.3.1979 in Criminal Case No. 287 of 1978 Om Prakash vs. Balkishan. The oral and documentary evidence produced in support of the defence version, when read in the conduct of prosecution witness in relation to the launching of prosecution against the petitioner not in an appreciable manner, as indicated above, probalises the existence of a ring of truth in it. (9). In criminal trials the accused has not to prove his innocence but simply to probalise the possibility of there being truth in his innocence which may cast a reasonable doubt in the truthful character of prosecution version and evidence adduced in support of such version. Read in the totality of circumstances in this case and in the light of the views of this Court expressed by Tibrewal, J. in the case of Prabhu Dayal & Ors. vs. State of Raj. (2), wherein sample was taken on 2.11.1981 but complaint was filed on 17.3.1983 and other lapses on the part of prosecution were noted and such conduct of the prosecution was considered justifying the quashing of the continuance of the proceeding of the prosecution of the accused. I find the present case of doubtful character. The benefit of such doubt should go to the accused and he deserves acquittal of the offence u/s. 7/16 of the Act. (10). In the result the conviction and sentence of the petitioner for offence u/s. 7/16 are set aside and he is acquitted of that offence. The judgments and orders of both the Courts below are set aside and the petition allowed. The bail bonds of the petitioner are cancelled. The amount of fine, if realised from him, shall be repaid to the petitioner.