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2001 DIGILAW 122 (HP)

RAJ KUMAR v. STATE OF H. P.

2001-06-29

A.K.GOEL

body2001
JUDGMENT Arun Kumar Goel, J.—Heard. Learned Counsel for the parties and with their assistance record of the courts below has been examined. 2. Facts giving rise to this case are that initially challan was presented against Dharam Chand under Section 16(l)(a)(i) of the Prevention of Food Adulteration Act, 1954 (herein-in-after referred to as the Act). On 5.10.1991, Food Inspector Jagat Ram had purchased iodised salt from Dharam Chand as per the provisions of the Act for getting it analysed. After issuing notice to him of his such intention, he purchased 600 grams of iodised salt taken from sealed bag. Receipt of its payment is Ex. PB. Thereafter this salt was equally apportioned in three packets which were properly packed and sealed as required under the Act. After completing the codal formalities under the Act and rules framed thereunder, one sample was sent to the Public Analyst at Chandigarh for analysis and other two packets were sent to the Local Health Authority, Chamba. These were sent by registered post. 3. After analysis it was found by the Public Analyst, Punjab, Chandigarh as under: "Mattar insoluble in water of the contents of the sample is 1.48% against the maximum prescribed standard of 1.0%." Since the sample did not conform to the tests as per provisions of the Act, therefore, respondent Dharam Chand was challaned in the Court of Chief Judicial Magistrate, Chamba. Sanction to launch proceedings was accorded by the Chief Medical Officer, Chamba as envisaged under Section 20 of the Act. Said Dharam Chand was intimated regarding the receipt of report of the Public Analyst as well as launching of prosecution against him in the Court of Chief Judicial Magistrate, Chamba vide Ex. PW-3/ B. At the same time, Food Inspector, Chamba intimated the Local Health Authority, Chamba, District Chamba to send the intimation under Section 13(2) of the Act to Dharam Chand, respondent. Record shows that this requirement of law was also complied with. 4. After said Dharam Chand was summoned, he filed application under Section 20-A of the Act for impleading Suraj Parkash as accused on the ground that he had purchased the salt from him. This application was allowed and thus Suraj Parkash was impleaded as an accused. 5. Record shows that this requirement of law was also complied with. 4. After said Dharam Chand was summoned, he filed application under Section 20-A of the Act for impleading Suraj Parkash as accused on the ground that he had purchased the salt from him. This application was allowed and thus Suraj Parkash was impleaded as an accused. 5. After having been summoned and arrayed as an accused said Suraj Parkash also in turn filed an application under Section 20-A of the Act to implead Raj Kumar (present petitioner) as partner of M/s. Naresh Kumar Gupta, Iodised Salt and Rock Salt Dealers, G.T. Road, Damtal (H.P.) as co-accused. This application was allowed and consequently said Raj Kumar was impleaded as accused. 6; In the aforesaid background, all the three persons, namely, Dharam Chand, Suraj Parkash and Raj Kumar were tried together. Evidence recorded during the course of trial clearly suggests that so far as iodised salt, sample whereof was taken from the shop of Dharam Chand is concerned, it came in the hands of Dharam Chand as noted in here-in-above from Suraj Parkash, who in turn had obtained it from Raj Kumar petitioner. This factual position is not disputed either at the time of hearing of this revision or in its defence as put up before the trial court as well as appellate court below by the petitioner. 7. It may be noted here that Dharam Chand, Suraj Parkash were acquitted by the trial Court, There is nothing on record to suggest that State had filed an appeal against their such acquittal. Thus in law it has attained finality. However, Raj Kumar has been found to be guilty after conclusion of the trial under Section 16(l)(a)(i) of the Act, who after hearing on the quantum of sentence, has been punished to undergo six months rigorous imprisonment and also to pay fine of Rs. 1,000, and in default of the payment of fine, he has been directed to undergo three months rigorous imprisonment. 8. After referring to the evidence on record, learned Counsel for the petitioner forcefully urged that his client is not connected with the commission of the offence and he has been wrongly roped in without being liable either for the alleged offence or for any other offence. 8. After referring to the evidence on record, learned Counsel for the petitioner forcefully urged that his client is not connected with the commission of the offence and he has been wrongly roped in without being liable either for the alleged offence or for any other offence. He further pointed out that on the basis of the evidence recorded by the trial Court, conviction and sentence imposed upon the petitioner cannot be sustained. 9. Alternatively and without conceding, it was urged forcefully by Mr. Chauhan that the punishment inflicted is disproportionate to the alleged offence as in any event he should have been extended the benefit under Section 4 of the Probation of Offenders Act. While buttressing his last submission, Shri Chauhan pointed out that his case is clearly covered by decision of the Apex Court in case N. Sukumaran Nair v. Food Inspector, Mavelikara, 1997 SCC (Cri) 608. According to him, if all submissions urged do not find favour with the Court, benefit of this judgment needs to be extended. With a view to properly understand and appreciate the submissions of Mr. Chauhan, it is necessary to extract the said judgment, which is as under : "1. A sample of ice cream purchased by the Food Inspector from the appellant was reported by the Public Analyst to be adulterated because of reduction of milk-fat and total solids in the product. Yet, the trial court acquitted the appellant on the ground that Rule 18 of the Prevention of Food Adulteration Rules, 1955 was not complied with inasmuch as the Food Inspector in support of his word did not adduce in evidence the postal receipt to establish that he had sent not only the sample of ice cream properly sealed and fastened but the specimen impression of the seal too separately, so that the Public Analyst could certify that the seal fixed on the container and the outer cover of the sample tallied with the specimen impression of the seal separately sent by the Food Inspector to him. It was taken that unless the conditions aforementioned were satisfied, the sample was not in a fit condition to analysis. It was taken that unless the conditions aforementioned were satisfied, the sample was not in a fit condition to analysis. The High Court reversed the decision of the trial Court taking the view that when the report of the Public Analyst specified that the seal fixed on the container and the outer cover of the sample tallied with the specimen impression of the seal separately sent by the Food Inspector, making the sample in a condition fit for analysis, that was the end of the matter and that the statement of the Food Inspector was not deficient when the postal receipt was not adduced in evidence. The acquittal was thus upset and the appellant was convicted for the offence charged and sentenced to undergo simple imprisonment for six months and to pay a fine of Rs. 1,000 in default of payment of which further simple imprisonment for two months. 2. It has vehemently been urged by V.A. Bobde, learned Senior Counsel that compliance of Rule 18 was mandatory and since there was an infraction in the instant case, the view of the trial Court deserves to prevail. We fail to see how there is violation of the said Rule. The Food Inspector as PW 1 was categoric that he had sent the specimen impression of the seal separately to the Public Analyst under sealed cover. It is true that he did not adduce in evidence the postal receipt vide which the specimen impression of the seal was sent separately The Food Inspector could be dubbed wrong if his statement had been challenged in cross-examination. As is obvious, the Food Inspector deposed to the observance of the requirement of Rule 18 but, at best, can be said not to have introduced corroborative evidence to his word. But, if the word of the Food Inspector is not challenged in cross-examination and is otherwise found corroborated from the report of the Public Analyst wherein the necessary recitals, even though in printed form, are available, compliance of Rule 18 becomes obvious. Such report by the Public analyst is ex facie evidence. There are methods to challenge the same which were not resorted to. We are, thus, of the view that the High Court was justified in upsetting the order of acquittal on the aforesaid ground. 3. The offence took place in the year 1984. Such report by the Public analyst is ex facie evidence. There are methods to challenge the same which were not resorted to. We are, thus, of the view that the High Court was justified in upsetting the order of acquittal on the aforesaid ground. 3. The offence took place in the year 1984. The applicant has been awarded six months simple imprisonment and has also been ordered to pay a fine of Rs. 1,000. Under clause (d) of Section 433 of the Code of Criminal Procedure, "the appropriate Government" is empowered to commute the sentence of simple imprisonment for fine. We think that this would be an appropriate case for commutation of sentence where almost a decade has gone by. We, therefore, direct the appellant to deposit in the trial court a sum of Rs. 6,000 as fine in commutation of the sentence of six months simple imprisonment within a period of six weeks from today and intimate to the appropriate Government that such fine has been deposited. On deposit of such fine, the State Government may formalise the matter by passing appropriate orders under clause (d) of Section 433 of the Code of Criminal Procedure. 4. With this end result, the appeal stands disposed of." 10. As already observed, it is not in dispute that sample was taken about more than nine years before. During all this period till date the petitioner has been undergoing the agony firstly of the trial Court appeal and lastly of this criminal revision. During this entire period the sword of damocles was hanging over his head. Thus according to Mr. Chauhan benefit of this judgment needs to be extended to his client. All these pleas have been controverted by learned Deputy Advocate General who submitted that the petitioner deserves no mercy and the offence found against him is of serious nature. Necessity for selling iodised salt was fait with a view to eradicate the disease of goitre keeping in view the well being of the masses; according to him evidence both oral and documentary fully brings home the guilt against the petitioner. 11. After examining the record and after giving the consideration to all the submissions urged, I find no reason to take a different view from the one taken by both the courts below. 11. After examining the record and after giving the consideration to all the submissions urged, I find no reason to take a different view from the one taken by both the courts below. Reason being that as per prescribed standard the sample at the time of analysis did not meet the test. Therefore, after due appreciation of evidence. I am satisfied that the findings recorded by the trial Court and upheld in appeal call for no interference. 12. Taking cue from the Supreme Court decision in the case of N. Sukumaran Nair (supra) and the time gap, it is felt that this is a fit case where appropriate Government i.e. Government of Himachal Pradesh being empowered to commute the sentence imposed upon the petitioner should do the needful. Accordingly, it is felt that it would be appropriate in the facts, circumstances and peculiar background of the case to direct the petitioner to deposit a sum of Rs. 5,000 before the trial Court as fine on or before 31st July, 2001 and intimate the Government of Himachal Pradesh that such fine has been deposited. After needful is done, the State Government shall formalise the matter by passing an appropriate order under clause (d) of Section 433 of the Code of Criminal Procedure. It is clarified that in case sum of Rs. 1,000 the fine imposed stands already deposited in such a situation petitioner is required to deposit another sum of Rs. 4,000. Subject to these directions, this revision is finally disposed of. Revision disposed of.