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2001 DIGILAW 84 (HP)

MAN SINGH v. STATE OF H. P.

2001-05-10

R.L.KHURANA

body2001
JUDGMENT R,L. Khurana, J.-The petitioner, hereinafter referred to as the accused, on 9.4.1993 at about 8 a.m. in the area of village Raghunathpura was found in possession of 43 liters of mixed milk for sale to the general public. Such milk was contained in two drums which the accused was found carrying on his motor cycle No. HP-24-1322. The Food Inspector purchased 750 ml. of milk from the accused for the purpose of analysis and upon analysis such milk was found to be adulterated since the fat contents and solids not fat contents were found to be below the prescribed standard. Further the accused was found selling the milk without holding a valid licence as a milk vendor as required under the Rules framed under the provisions of Prevention of Food Adulteration Act, 1954. 2. The accused was accordingly sent up for trial for the offence under Section 16(l)(a)(i) and 16(l)(a)(ii) of the Prevention of Food Adulteration Act, 1954, hereinafter referred to as the Act. The learned Magistrate vide judgment dated 30.11.1994 convicted the accused for both the offences and sentenced him to undergo rigorous imprisonment for a period of six months and to pay a fine of Rs. 500 for the offence under Section 16(l)(a)(i) of the Act and rigorous imprisonment for two months and fine of Rs. 300 for the offence under Section i6(l)(a)(ii) of the Act. The conviction and sentence imposed upon the accused by the learned Magistrate were affirmed in appeal by the learned Sessions Judge, Bilaspur vide his judgment dated 25.6.1999. Feeling aggrieved, the petitioner is before this Court by way of the present revision petition. 3. The learned Counsel for the accused at the very out set has contended that the conviction and sentence imposed upon the accused for the offence under Section 16(l)(a)(i) of the Act by the two courts below cannot be sustained inasmuch as there has been non-compliance with the mandatory provisions of Section 13(2) of the Act. 4. 3. The learned Counsel for the accused at the very out set has contended that the conviction and sentence imposed upon the accused for the offence under Section 16(l)(a)(i) of the Act by the two courts below cannot be sustained inasmuch as there has been non-compliance with the mandatory provisions of Section 13(2) of the Act. 4. Section 13(2) of the Act lays down that the Local Health Authority after the institution of the prosecution against the accused shall forward a copy of the report of the Public Analyst to the accused informing him that if so desire, he may make an application to the court within a period of ten days from the date of the receipt of the copy of the report to get the sample of the article of food kept by the Local Health Authority analysed by the Central Food Laboratory. (Emphasis supplied) 5. In the present case, the prosecution was launched against the accused by the Food Inspector by presenting the complaint to the learned Magistrate on 10.6.1993. According to the prosecution, a copy of the report of the Public Analyst Ex. P-17 was sent to the accused under letter, copy of which is Ex. P-16 on 17.6.1993. Ex. P. 14 is the original postal receipt vide which as per the prosecution case itself, the copy of the report of the Public Analyst alongwith the letter Ex. P-16 was sent to the accused under registered AD cover. A bare perusal of this postal receipt Ex. P-14 shows that a registered letter was posted at the address of the accused on 8.6.1993. If the report of the Public Analyst Ex. P-17 was sent under letter Ex. P-16 to the accused under registered cover vide postal receipt Ex. P-14, on the face of it, the copy of the Public Analyst report is shown to have been sent to the accused before the launching of the prosecution and therefore, there has been non-compliance of mandatory provisions contained in Section 13(2) of the Act. The accused, is, therefore, entitled to be acquitted for the offence under Section 16(l)(a)(i) of the Act on account of non-compliance with the mandatory provisions of Section 13(2) of the Act. His conviction and sentence for such offence is accordingly set aside and he is acquitted. 6. The accused, is, therefore, entitled to be acquitted for the offence under Section 16(l)(a)(i) of the Act on account of non-compliance with the mandatory provisions of Section 13(2) of the Act. His conviction and sentence for such offence is accordingly set aside and he is acquitted. 6. Insofar as the offence under Section 16(l)(a)(ii) of the Act is concerned, the learned Counsel for the accused has contended that if the accused is acquitted of the offence under Section 16(l)(a)(i) of the Act, he cannot be convicted for the offence under Section 16(l)(a)(ii) of the Act, inasmuch as, no milk vendor licence is required for selling the adulterated milk. Such a licence is required only to sell the unadulterated milk, In support of his contention the learned Counsel for the accused has placed reliance on a decision of the Orissa High Court in Durga Madhab Behera v. State of Orissa, 1996 (1) FAC 110. 7. In the case relied upon by the learned Counsel for the accused consequent upon the acquittal of the accused for the offence under Section 16(l)(a)(i) of the Act, the accused therein was also acquitted of the offence under Section 16(l)(a)(ii) of the Act. It was observed that Rule 50 of the Rules framed under the Act prohibits manufacture, sale etc. of the prescribed food without a licence. If a vendor sells any article of food without a licence as required under Rule 50, then he shall be liable for the offence under Section 16(l)(a)(ii) of the Act. But if the vendor is found selling an adulterated article of food, Rule 50 will not come into play and such a vendor on his having an adulterated article of food would not require to hold a licence. 8. I am unable to agree to the ratio laid down by the Orissa High Court in the case reliance on which has been placed by the learned Counsel for the accused. 9. In Sheo Raj v. State and another, 1991 (1) FAC 230, the Delhi High Court had an occasion of dealing with a similar situation. In the case before the Delhi High Court, the accused therein was convicted for the offence under Section 16(l)(a)(i) of the Act. 9. In Sheo Raj v. State and another, 1991 (1) FAC 230, the Delhi High Court had an occasion of dealing with a similar situation. In the case before the Delhi High Court, the accused therein was convicted for the offence under Section 16(l)(a)(i) of the Act. He, was, however, acquitted of the offence under Section 16(l)(a)(ii) of the Act on the ground that the conviction of the accused for the offence under Section 16(l)(a)(i) of the Act would mean that he was selling an adulterated article of food. In such situation, it was held that a person selling an adulterated article of food is not required to hold a licence under Rule 50 and he cannot be convicted for the offence under Section 16(l)(a)(ii) of the Act for selling an adulterated article of food without a licence. 10. Looking into the ratio laid down by the Delhi High Court from another angle, the acquittal of an accused of the offence under Section 16(l)(a)(i) of the Act would mean that such an accused was found selling unadulterated article of food at the relevant time Therefore, once he is found to be selling the un-adulterated article of food, he is required to hold a valid licence for the sale of the unadulterated article of food. If at the relevant time, he is found not holding a valid licence as required under the Rules, he is liable to be convicted and sentenced for the offence under Section 16(l)(a)(ii) of the Act. 11. In the present case, since the accused has5 been acquitted of the offence under Section 16(l)(a)(i) of the Act, the effect thereof would be that at the relevant time he was not selling an adulterated article of food, namely, milk. Therefore, he was required to hold a valid licence under Rule 50 of the Rules framed under the Act and since, admittedly, he was not holding such a licence, he is guilty of the offence under Section 16(l)(a)(ii) of the Act and the conviction and sentence imposed upon him for such offence are liable to be sustained. 12. As a result, the present appeal is partly allowed. The accused is acquitted of the offence under Section 16(l)(a)(i) of the Act. His conviction and sentence for the offence under Section 16(l)(a)(ii) of the Act is, however, maintained. 12. As a result, the present appeal is partly allowed. The accused is acquitted of the offence under Section 16(l)(a)(i) of the Act. His conviction and sentence for the offence under Section 16(l)(a)(ii) of the Act is, however, maintained. It is stated by the learned Counsel for the accused that the accused is in jail undergoing sentence imposed upon him by the two courts below since February, 2001. The accused has been sentenced to rigorous imprisonment for a period of two months for the offence under Section 16(l)(a)(ii) of the Act by the two courts below. If the accused is in jail since February, 2001 as stated by the learned Counsel for the accused, he has served out the sentence imposed upon him for the offence for which he stands convicted and, as such, he is required to be released forthwith, if not required in any other case. Partly allowed. -