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1999 DIGILAW 2 (HP)

STATE OF H. P. v. ASHOK KUMAR

1999-01-01

R.L.KHURANA

body1999
JUDGMENT R.L. Khurana, J.—On 21.12.1990 PW, 1 Jagat Ram, Food Inspector had visited the business premises of M/s. Ram Kishan Surinder Pal, Karyana Merchant at village Pukhari in Tehsil and District Chamba. One Avinash Kumar is the proprietor of the said business concern. He was found in possession of four gunny bags of Besan each weighing 75 Kgs. for sale to the general public PW-1 purchased 600 grains of Besan from said Avinash Kumar as sample for analysis. The sample was purchased after opening one of the four gunny bags. Such sample on having been analysed was found to be adulterated since it contained wheat starch as an admixture. 2. At the time of the sale of the sample of Besan by the abovesaid Avinash Kumar to the Food Inspector, it was brought to the notice of the Food Inspector that the Besan had been purchased by him from the present respondent, the proprietor of M/s. K.V. Trading Company, Damtal. 3. After obtaining the requisite sanction from the competent authority, a prosecution was launched against Avinash Kumar of M/s. Ram Kishan Surinder Pal. During the pendency of the proceedings before the learned Chief Judicial Magistrate, Chamba on an application having been made by the said Avinash Kumar under Section 20-A of the Prevention of Food Adulteration Act (for short the Act), the present respondent came to be impleaded as an co-accused. Be it stated that during the inquiry, on the basis of the application made by Avinash Kumar, under Section 20-A of the Act, the respondent while appearing as AW 2 on 18.9.1991 had admitted having sold the Besan to the abovesaid Avinash Kumar. The trial for the offence under Section 16(1)(a) of the Act thus proceeded against Sh. Avinash Kumar and the present respondent. 4. The learned Magistrate upon consideration of the material placed before him, acquitted Avinash Kumar of the offence by giving him the benefit under Section 19(2) of the Act. The present respondent, however, was convicted for such offence and sentenced to undergo rigorous imprisonment for a period of six months and to pay a fine of Rs. 1,000/-. In default of the payment of fine, the respondent was sentenced to undergo simple imprisonment for a further period of two months. 5. The present respondent, however, was convicted for such offence and sentenced to undergo rigorous imprisonment for a period of six months and to pay a fine of Rs. 1,000/-. In default of the payment of fine, the respondent was sentenced to undergo simple imprisonment for a further period of two months. 5. On an appeal having been preferred by the respondent, the learned Sessions Judge, Chamba set aside the conviction and sentence imposed upon the respondent vide judgment dated 24.9.1994 and acquitted him of ;the offence vide his judgment dated 26.5.1995 passed in Criminal Appeal No. 10 of 1994. 6. The State by virtue of the present appeal preferred under Section 378, Code of Criminal Procedure has assailed the acquittal of the respondent as recorded by the learned Sessions Judge. During the course of hearing of the appeal, the learned Sessions Judge had formulated the following two questions:— (1) Whether the food article sample whereof was lifted stood conclusively connected with the bill Ext. AW 2/A, original whereof is Ext. D-1; and (2) Whether report of the Public Analyst Ext. PG is conclusive as to the food article under reference being adulterated. Both the questions were answered by the learned Sessions Judge in the negative and consequently he set-aside the conviction and sentence and acquitted the respondent as aforesaid. 7. At the very outset, it may be stated that the impugned judgment of acquital as recorded by the learned Sessions Judge cannot be sustained and is liable to be set aside. The learned Sessions Judge has committed a grave error in answering both the questions in the negative. 8. Admittedly, the respondent is a dealer of good grains and is carrying on his business at Damtal in District Kangra under the name and style of M/s. K.V. Trading Company. Vide bill copy of which is Ext. AW 2/A and the original of which is Ext. D-1 he had sold five gunny bags of Besan weighing 75 Kgs. each to M/s. Ram Kishan Surinder Pal of Pukhari on 11.12.1990. The Food Inspector has visited the shop of the said firm M/s. Ram Kishan Surinder Pal on 21.12.1990. At that time, the Food Inspector found the said firm in possession of four gunny bags of 75 Kgs. each of Besan. All these gunny bags were lying duly stitched in the shop. The Food Inspector has visited the shop of the said firm M/s. Ram Kishan Surinder Pal on 21.12.1990. At that time, the Food Inspector found the said firm in possession of four gunny bags of 75 Kgs. each of Besan. All these gunny bags were lying duly stitched in the shop. The Food Inspector had opened one of such gunny bags at the time of purchasing the sample of Besan from Avinash Kumar of M/s. Ram Kishan Surinder Pal. 9. The respondent has appeared in the present case on two occasions, firstly as AW. 2 on 18.9.1991 during the course of inquiry under Section 20-A of the Act and secondly, on 15.9.1994 as DW 1. On both these occasions, he had admitted having sold the Besan to Avinash Kumar of M/s. Ram Kishan Surinder Pal vide cash memo Ext. D-l copy whereof is Ext. AW 2/A. An admission to this effect is also forthcoming in answer to question No. 3 of the statement of the respondent recorded under Section 313, Code of Criminal Procedure. 10. Be it stated that it is not the case of the respondent that the Besan out of which the sample was purchased by the Food Inspector was other than the Besan sold by him to Sh. Avinash Kumar. The said Avinash Kumar stands acquitted of the offence in view of the provisions contained under Section 19(2) of the Act. Such acquittal has not been assailed by the State by way of an appeal and the same has become final. 11. It is in the statement of Food Inspector that he had purchased the sample of Besan from Avinash Kumar in the same condition in which it was sold by the respondent to said Avinash Kumar. He has not been cross-examined by the respondent on this aspect of the case. Therefore, it will have to be presumed that the respondent admits that the Besan purchased as a sample by the Food Inspector from Avinash Kumar is the same which was sold by him to the said Avinash Kumar. 12. The learned Sessions Judge has further committed an error in coming to the conclusion that there was an intermediary dealer, namely, Messrs Rakesh Kumar Mahajan, Forwarding and Commission Agents, Damtal, who should also have been impleaded as an accused under Section 20-A of the Act. 13. 12. The learned Sessions Judge has further committed an error in coming to the conclusion that there was an intermediary dealer, namely, Messrs Rakesh Kumar Mahajan, Forwarding and Commission Agents, Damtal, who should also have been impleaded as an accused under Section 20-A of the Act. 13. It is the specific case of the present respondent that he had despatched the Besan to Messrs Ram Kishan Surinder Pal through the transport of the said Messrs Rakesh Kumar Mahajan. Thus, the said firm was only a carrier of Besan. It is not the case of the respondent that he had sold Besan to Messrs Rakesh Kumar Mahajan who in turn had sold the same to the present respondent. Being only a carrier of Besan, Messrs Rakesh Kumar Mahajan can neither be termed as manufacturer nor dealer within the meaning of Section 20-A of the Act. 14. The evidence coming on the record conclusively establishes that Besan sample whereof was purchased by the Food Inspector is the same which was purchased by Avinash Kumar from the respondent vide bill Ext. D-1, copy whereof is Ext. AW 2/A. 15. Item No. A. 18.04 of Appendix-B to the Prevention of Food Adulteration Rules, 1955 lays down the standard of quality for Besan "Besan" means the product obtained by grinding dehusked Bengal gram (Cicer aretinum) and shall not contain any added colouring matter or any other foreign ingredient. Besan shall conform to the following standard:— (a) Total ash Not more than 5 per cent. (b) Ash insoluble in HC Not more than 0.5 per cent. A bare reading of the above provision shows that the Besan should not contain any foreign ingredient. Once any foreign ingredient is found in the Besan, the same would be deemed to be aduterated within the meaning of the Act. The learned Sessions Judge has committed a grave error in not accepting this report merely on the ground that the percentage of wheat starch found in the sample of Besan has not been given. There is no requirement under the law to give the percentage of foreign ingredient which is found in the sample, in view of the quality of Besan as prescribed under item No. A-18.04 of Appendix B of the Rules. 16. There is no requirement under the law to give the percentage of foreign ingredient which is found in the sample, in view of the quality of Besan as prescribed under item No. A-18.04 of Appendix B of the Rules. 16. The Hon’ble Supreme Court in Shri Ram Labhaya v. Municipal Corporation of Delhi and another, (1974) 4 SCC 491, had the occasion of dealing with the case of turmeric powder which was found to contain foreign starches. In the report, the Public Analyst had not given either the nature of the foreign starches or the precentage thereof. Nor it was mentioned that the presence of such foreign starches in the turmeric powder was injurious to health. It was held:— "It is urged on behalf of the appellant that the report of the Public Analyst does not say that the presence of 25 per cent of the starch affects injuriously the nature, subtance of quality of haldi and therefore, the sample taken by the Food Inspector cannot be said to be adulterated within the meaning of Section 2(i)(b) of the Act. The short answer to this contention is that Rule 44 of the Prevention of Food Adulteration Rules, 1955 provides that no person shall sell turmeric containing any foreign substance. The report of the Public Analyst shows that the sample contained not natural but foreign starches. Section 7(v) of the Act provides that no person shall sell any article of food in contravention of any other provision of the Act or of any rule made thereunder. The sale of haldi containing foreign starch is in contravention of Rule 44(h) and is therefore an offence under Section 7(v) of the Act." 17. In the present case, as stated above, Item No. A. 18.04 of Appendix-B to the Rules specifically prohibits the admixture of any foreign ingredient in the Besan. Therefore, the ratio laid down by the Honble Supreme Court in the above-referred to case is applicable to the facts of the present case on all fours and as such, the presence of wheat starch in the Besan would be an offence under Section 7(v) of the Act punishable under Section 16(1) thereof. Consequently, the acquittal as ordered by the learned Sessions Judge is set aside and the conviction of the respondent as ordered by the learned Chief Judicial Magistrate, Chamba is restored. 18. Next comes the question of sentence. Consequently, the acquittal as ordered by the learned Sessions Judge is set aside and the conviction of the respondent as ordered by the learned Chief Judicial Magistrate, Chamba is restored. 18. Next comes the question of sentence. As stated above, the learned Magistrate has imposed the sentence of rigorous imprisonment of six months and fine of Rs. 1,000/- on the respondent. 19. The sample was taken on 21.12.1990. The respondent had put in appearance before the Court consequent upon having been summoned under Section 21-A of the Act on 20.3.1992. The trial concluded in the conviction of the respondent on 24.9.1994. The appeal against the conviction was decided by the learned Sessions Judge on 26.5.1995 and thereafter, the present appeal was filed which was admitted on 28.2.1996. Therefore, during the last about more than six years, the respondent has been undergoing the ordeal and rigours of prosecution. Therefore, it would not be proper to send him to imprisonment at this stage. The ends of justice would be met if he is sentenced to fine only in place of the minimum sentence prescribed by law. A similar course was adopted by the Hon’ble Supreme Court in Ram Labhayas case (supra). Therefore, the respondent is sentenced to pay a fine of Rs. 5,000/-. The amount of fine shall be deposited by the respondent with the learned trial Court within four weeks from today. In the event of default in the payment of the fine, the respondent shall undergo simple imprisonment for a period of one month. The appeal is, therefore, allowed in the above terms. Appeal allowed.