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1998 DIGILAW 116 (RAJ)

Dharam Chand v. State of Rajasthan

1998-01-23

MOHD.YAMIN

body1998
Judgment Mohd. Yamin, J.-This is a revision petition against the order of learned Additional Sessions Judge No. 2, Sriganganagar in Cr. Appeal No. 11/87 (33/85) by which he dismissed the appeal of the petitioner\and confirmed the Judgment dated 29-1-1985 passed by the Chief Judicial Magistrate, Ganganagar in Cr. Case No. 115/81. The learned Chief Judicial Magistrate had convicted the accused petitioner for the offences under Section 7/16 of the Prevention of Food Adulteration Act (hereinafter referred as ‘the PFA Act’) and sentenced him to one year’s rigorous imprisonment with a fine of Rs. 1000/-and in default to undergo simple imprisonment for three months. 2. I haveheard the learned Counsel for the petitioner as well as learned PP at length and have gone through the record. 3. Thefacts may be narrated in brief On 14-9-1981 Ram Gopal Sharma, Food Inspector, inspected the shop of M/s. Dharam Chand Narendra Kumar Chhabra Kirana Merchant, Srikaranpur at about 4 p.m. Dharam Chand was present there The petitioner found that about 10 kg. of chilli powder was kept in wooden box and was exhibited for sale. The inspector gave form No. VII to the petitioner and purchased 600 grams of red chilli powder for the purpose of analysis. He paid its price and obtained Ex.P/2. He divided the sample in three equal parts and poured in three bottles and sealed them for analysis. He also prepared the memo. Then one of the sample was sent to the public analyst who examined it and submitted report Ex.P/7. The sample was found adulterated as it did not confirm to the prescribed standard. Then the consent was obtained and complaint was submitted before learned Chief Judicial Magistrate, Sriganganagar. In compliance of Section 13(2) of the PFA Act, notice Ex.P./10 was sent to the petitioner by registered post, receipt of which is Ex.P./1 1. The acknowledgement has been exhibited “Y” which was received by one Narendra Kumar. Learned Chief Judicial Magistrate after trial according to law convicted and sentenced the accused petitioner as stated above. On appeal the conviction and sentence were maintained. 4. Learned counsel for the petitioner submitted that according to the report of public analyst total ash was found to be 11.40% while it should not be more than 8.0% by weight. He submitted that while grinding some dust particles might have been added in natural process. According to him it would not amount to adulteration. 4. Learned counsel for the petitioner submitted that according to the report of public analyst total ash was found to be 11.40% while it should not be more than 8.0% by weight. He submitted that while grinding some dust particles might have been added in natural process. According to him it would not amount to adulteration. I do not agree with this contention because the prescribed standard is given under the Rules. That means that if it is not according to the standard, it is adulterated. 5. Thenext contention of the learned Counsel for the petitioner is that the Analyst’s report was not sent to the petitioner and his valuable right given to him under Section 13(2) of the PFA Act has been Violated. He cited Rameshwar Dayal vs. State of U.P., 1996 SCC (Cri) in which it was held that no supply of report of the Public Analyst to the accused causes a serious prejudice to him and therefore, the conviction is not sustainable. In a number of cases it has been so held. Of course, right of the petitioner is very valuable. I have to see if the same has been violated. From the evidence of PW 1 Ram Gopal Sharma I find that he did send the report of Public Analyst at the address given in Ex. P/li. The forwading letter is Ex. P110. It was addressed to Dharam Chand proprietor of M/s. Dharam Chand, Narendra Kumar Kirana Merchant. Sri Karanpur and was received by Narendra Kumar has shown in acknowledgment Exhibit “Y”. Counsel for the petitioner submitted that the prosecution has not proved as to who this Narendra Kumar is. Needless to say when the name of the Firm of the petitioner is M/s. Dharam Chand and Narendra Kumar Kirana Merchant, Sri Karanpur is said to be proprietor of the Firm and the letter was received by Narendra Kumar, it is a compliance of Section 13(2) of the PFA Act. Ex. P-3 Form No. VII shows that the name of the Firm was Dharam Chand Narendra Kumar Kirana Merchant, Sri Karanpur and the petitioner stated that he was the proprietor of the Firm. This is the checking memo which shows the name of the Finn as M/s. Dbaruni Chand Narendra Kumar Kirana Merchant, Shri Karanpur. Similarly Ex. Ex. P-3 Form No. VII shows that the name of the Firm was Dharam Chand Narendra Kumar Kirana Merchant, Sri Karanpur and the petitioner stated that he was the proprietor of the Firm. This is the checking memo which shows the name of the Finn as M/s. Dbaruni Chand Narendra Kumar Kirana Merchant, Shri Karanpur. Similarly Ex. P-2 receipt which was issued by Dharam Chand after taking the price of the sample also mentions the name of the Firm as M/s. Dharam Chand Narendra Kumar Kirana Mechant, Sri Karanpur. It contains the signature of Dharam Chand. Ex. P. “Y” proved that report of Public Analyst was received by Narendra Kumar at the firm M/s. Dharam Chand Narendra Kumar Kirana Merchant, Sri Karanpur. So when the report along with Ex. P-i 0 forwarding was received at the firm which was being run under the name and styled as M/s. Dharam Chand Narendra Kumar Kirana Merchant, Sri Karanpur, Distt. Sri Ganganagar. I am of the view that compliance of Section 13(2) of the PFA Act was made. It was the petitioner who did not apply for analysis of the sample by the Central Food Laboratory. Therefore, when he had himself not applied by the Central Food Laboratory it cannot be said that a prejudice was caused. It is not a case of non receipt of the report. It is proved beyond doubt that the report was received by M/s. Dharam Chand Narendra Kumar Kirana Merchant of which the petitioner was proprietor. So far as merits are concerned no other point has been raised. Therefore, I am of the view that the Courts below have rightly convicted the accused petitioner. 6. Now the only contention of the learned Counsel for the petitioner is that the petitioner has remained in custody for a period of 27 days and this period was sufficient in the circumstances of this case and the petitioner should be released on the under gone sentence. He cited 1994 SCC (Cri) 1469, Santana Sahu vs. State of Orissa in which sample Zira was found to be adulterated and the sentence was reduced to the period already undergone (one month) but the sentence of fine was confirmed. He cited 1994 SCC (Cri) 1469, Santana Sahu vs. State of Orissa in which sample Zira was found to be adulterated and the sentence was reduced to the period already undergone (one month) but the sentence of fine was confirmed. In Braham Dass vs. State of Himachal Pradesh, 1988 CriLR (SC) 510: (1988 Cri IJ 1816) the sentence was reduced to the period already undergone, though the case related to the date after amendment in Section 16 of the PFA Act. The mitigating circumstances in the case in hand are that the sample was taken on 14 9-1981, petitioner Dharam Chand was convicted by the learned Chief Judicial Magistrate on 29-1-1985, appeal was disposed of by learned Sessions Judge on 1-2-1989 and this revision is being decided in January, 1998. Thus the petitioner has undergone the mental strain for about 17 years and during this period he has also Suffered economically. Looking to all the facts arid circumstances of the case. I am of the view that it is a fit case in which the petitioner should not be sent back to the jail. He has remained in custody from 1-2-1989 to 27-2-1989 and this period is sufficient. 7. In view of the above discussion the petition is partly allowed. While maintaining the conviction of the petitioner under Section 7/16 of the PFA Act, he is sentenced to the period already undergone. Sentence of fine is mentioned. Two months time is granted to deposit the amount of fine.