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2002 DIGILAW 1416 (PNJ)

Dilbag Rai v. State Of Haryana

2002-12-20

R.C.KATHURIA

body2002
Judgment R.C.Kathuria, J. 1. Dilbag Rai, petitioner-accused has filed the present criminal revision against the judgment dated 6.12.1989 passed by the Sessions Judge, Rohtak whereby order dated 18.5.1988 passed by the Chief Judicial Magistrate, Rohtak convicting the petitioner-accused under Section 16(1)(a)(i) of the Prevention of Food Adulteration Act, 1954 (hereinafter referred to as `the Act) and sentencing him to undergo rigorous imprisonment for a period of six months and to pay a fine of Rs. 1,000/- or in default of payment of fine to further undergo rigorous imprisonment for a period of one and half months was upheld. 2. Put shortly, the facts of the case are that on 20.1.1986 at 4.00 p.m., Food Inspector S.L. Anand in the company of Dr. V.K. Govila and one Sunil Kumar visited the stall of Dilbag Rai, petitioner-accused located opposite Sheela Talkies, Rohtak. At that time, the accused was having 3 kgs. of boiled cow milk in Patila for public sale. The Food Inspector purchased 660 mls. of cow milk for analysis after serving notice on Form VI, Ex.PA upon the accused on payment of Rs. 3/- vide receipt obtained from him. The milk purchased was divided and poured in three clean and dry bottles in equal parts. Eighteen drops of formalin 40% were added as preservative in each bottle. Thereafter, these bottles were stoppered, labelled, securely fastened and then wrapped in strong and thick paper separately in accordance with the prescribed procedure. Seizure memo Ex.PC was prepared at the spot which was signed by the Food Inspector and other witnesses as well as attested by the accused. Out of the three bottles, two sealed bottles were deposited with the Local Health Authority, Rohtak. The third sealed bottle was sent for analysis to Public Analyst, Haryana, Chandigarh, who on analysis, vide his report Ex.PD found the milk to be adulterated as it contained Milk Fat 3.7% and Milk Solid Not-Fat 6.9%. In this manner, it was deficient in Milk Fat 7.5% and Milk Solid Not Fat 19% of the minimum prescribed standard. Thereafter, the complaint was filed. 3. The Chief Judicial Magistrate, Rohtak tried the case as a warrant case in terms of the order dated 17.8.1986. After recording the statement of Food Inspector S.L. Anand charge under Section 16(1)(a)(i) of the Act was framed against the accused. Thereafter, the complaint was filed. 3. The Chief Judicial Magistrate, Rohtak tried the case as a warrant case in terms of the order dated 17.8.1986. After recording the statement of Food Inspector S.L. Anand charge under Section 16(1)(a)(i) of the Act was framed against the accused. The accused pleaded not guilty of the charge and claimed trial, whereupon further opportunity to cross-examine Food Inspector was given to the accused. In addition, Dr. V.K. Govila was examined, who fully supported the statement of Food Inspector with regard to the purchase of cow milk for analysis from the accused and the proceedings taken at the spot besides the preparation of spot memo Ex.PC. Om Parkash proved the copy of the report and on the basis of the record of Local Health Authority stated that the copy of the report of Public Analyst was sent to the accused vide registered post, which was not received back undelivered. 4. When examined under Section 313 of the Code of Criminal Procedure, 1973 (hereinafter referred to as `the Code), the accused denied the prosecution allegations completely. He took up the stand that he had been falsely implicated in this case. He examined Sunil Kumar (DW-1), who testified that on 20.1.1986 at about 11.30 a.m. Food Inspector had visited the shop of the accuse in the company of one other person and demanded the milk for analysis but the accused informed him that he only sells tea and not milk. Thereafter the sample was taken from the boiled milk by Food Inspector. He admitted his signature on memo Exs.PA and PB. The trial Magistrate on appraisal of the evidence rejected his defence version and while accepting the prosecution evidence convicted and sentenced the petitioner-accused as noticed above. The appeal filed by the petitioner was also dismissed by the Additional Session Judge, Rohtak as noted above. Hence the present criminal revision. 5. Food Inspector S.L. Anand had given a detailed statement in Court with regard to his visit to the shop of the accused on 20.1.1986 located opposite Sheela Talkies, Rohtak in the presence of Dr. V.K. Govila and Sunil Kumar. He maintained in his deposition that at that time the accused was found in possession of 3 kgs. boiled cow milk in Patila for public sale. V.K. Govila and Sunil Kumar. He maintained in his deposition that at that time the accused was found in possession of 3 kgs. boiled cow milk in Patila for public sale. Thereafter, he served a notice Ex.PA upon the accused which was thumb marked by him and, thereafter, stirred the milk and made it homogeneous and then purchased 660 mls. of milk on payment of Rs. 3/- vide receipt. He had added 18 drops of Formalin 45% in each bottle as preservative and, thereafter, bottles were got sealed in accordance with the prescribed procedure. He had prepared the spot memo Ex.PB which was attested by the witnesses. His testimony is fully corroborated by Dr. V.K. Govila (PW-2). Sunil Kumar, who had chosen to appear as DW-1 had admitted the visit of Food Inspector to the shop of the accused and sample drawn by him. Therefore, merely because the accused had taken the plea that he sued the milk for preparation of tea and not sell milk as such would not, in any manner, affect the case of the prosecution because sale to the Food Inspector for analysis amounts to sale within the purview of the Act. 6. Faced with the above position, learned counsel for the petitioner-accused only prayed for leniency in the matter of sentence to already undergone by him because the accused has to face the prosecution for the last more than 16 years as the sample in question was drawn on 20.1.1986. 7. Section 16 of the Act expressly provides that when the offence is proved under Section 16(1)(a) to (g) of the Act, then the convict in addition to the penalty to which he may be liable under the provisions of Section 6, be punishable with imprisonment for a term which shall not be less than six months but which may extend to three years, and with fine which shall not be less than one thousand rupees. Sub-clauses (i) and (ii) of the proviso of this Section mellow down the rigours of sentence so provided. It is for that reason the necessary provisions have to be noticed which read as under :- "16. Penalties. Sub-clauses (i) and (ii) of the proviso of this Section mellow down the rigours of sentence so provided. It is for that reason the necessary provisions have to be noticed which read as under :- "16. Penalties. - xx xx xx Provided that - (i) if the offence is under sub-clause (i) of clause (a) and is with respect to an article of food, being primary food, which is adulterated due to human agency or is with respect to an article of food which is misbranded within the meaning of sub-clause (k) of clause (ix) of Section 2; or (ii) if the offence is under sub-clause (ii) of clause (a), but not being an offence with respect to the contravention of any rule made under clause (a) or clause (g) of sub-section (1-A) of Section 23 or under clause (b) of sub- section (2) of Section 24, the court may, for any adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term which shall not be less than three months but which may extend to two years, and with fine which shall not be less than five hundred rupees: Provided further that if the offence is under sub-clause (ii) of clause (a) and is with respect to the contravention of any rule made under clause (a) or clause (g) of sub-section (1-A) of Section 23 or under clause (b) of sub- section (2) of Section 24, the court may, for any adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term which may extend to three months and with fine which may extend to five hundred rupees." 8. In the present case only point for consideration is whether less than the minimum sentence can be awarded to the person where the milk is found to be adulterated and had been convicted on that account. 9. Counsel repressing the petitioner-accused took pain to refer to the decision of Ved Parkash v. State of Haryana, 1996(1) RCR(Crl.) 171, wherein the accused was extended the benefit of probation and it was further held that the provision of minimum sentence does not operate as a bar to the applicability of the provisions of the Probation of Offenders Act in view of Sections 360 and 361 of the Code. Further reference was made by him to Jog Dhian v. State of Haryana, 2001(2) RCR(Crl.) 331, wherein the accused had faced trial for 15 years and for that reason accused was ordered to be released on probation although the minimum sentence is prescribed under the Act. For extending this benefit to the accused in that case reliance was placed on Narain Dass v. State of Haryana, 1997(3) RCR(Crl.) 311 (P&H) : 1997(3) RCC 300 and Joginder Singh v. State of Punjab, 1980 Criminal Law Journal 1218 (F.B.). In the latter case, the conviction was recorded under Section 61(1)(c) of the Punjab Excise Act, 1914. Further reliance was place by him on unreported judgment passed in Criminal Revision No. 47 of 1989, Ram Parkash v. State of Haryana, decided on 16.10.2002, wherein taking into consideration the similar benefit extend to the accused in Chander Bhan v. State of Haryana, 1996(1) RCR 125; Sat Pal v. State of Haryana, 1998(1) RCR(Crl.) 75 and Manoj Kumar v. State of Haryana, 1998(1) RCR(Crl.) 563, the substantive sentence of the petitioner-accused in that case was reduced to one already undergone by him. It appears that in none of the cases referred to above, notice has been taken of the Full Bench decision of this Court in State of Haryana v. Yad Ram, 1987(1) RCR(Crl.) 264 (P&H)(DB) : 1987 Cr.L.J. 79, wherein it was observed as under :- "In a case under Section 16 of the Act, the sentence cannot be awarded below the minimum provided by the Proviso to that section. The language of the proviso is unambiguous and clear. It nowhere indicates that the minimum punishment provided in it can be further scaled down. When the statute has fixed the minimum sentence, no court can even for adequate and special reasons further reduce it than the one given in the Act itself. If such a thing is permitted then the policy of the strict punishment or the concept of minimum punishments to check the growth of the criminal activities under the Act is likely to be defeated. The concept of minimum sentence is not new to our legal system, but is very old. Quite a few offences under the Penal Code carry minimum punishments. The recent trend in criminal law is in favour of harsh, deterrent as well as for prescription of minimum punishments for some offences, which are hazardous to the society. The concept of minimum sentence is not new to our legal system, but is very old. Quite a few offences under the Penal Code carry minimum punishments. The recent trend in criminal law is in favour of harsh, deterrent as well as for prescription of minimum punishments for some offences, which are hazardous to the society. Whenever and wherever the legislature in cases like economic offences and the criminal offences affecting the health of the society thinks that the sentence has to be harsh so that it pinches the offencer and acts as a deterrent, then it provides for it. Any legislative measure for harsh and severe punishment has to be strictly enforced. For the enforcement of mandate of a statute, leniency on the basis of soft ideas of an officer presiding a court before which a criminal is tried should not have any weight. When the legal provision is in a mandatory form and prescribes the doing of an act in a particular way may be by passing a sentences, then it has to be done only in that manner and not in any other way. This is how the legislative measures in the matter of visiting the accused convicted under Sections 7/16 of the Act with minimum sentences are to be enforced by the Courts. Also, from the history of the amendments made in the Act the legislative intent becomes manifest that the legislature has every time gone in for stringent, hash and strict measures in providing the punishments to the breakers of the law under the Act. In these days of inflation, every one, including the persons dealing in food articles, is motivated by the profit incentive to indulge in various nefarious activities and anti-social acts. Every day new techniques of money spinning by questionable means are adopted for marketing and selling to the consumer adulterated, misbranded and spurious food articles. Crime detectors are making efforts to detect adulteration in food, which is increasing alarming. By experience offence injurious to the public health are being identified and stricter and harsher punishment are provided in accordance with the gravity of the situation". 10. In the above mentioned case, after setting aside the order of the Additional Session Judge, Narnaul, Yad Ram was awarded sentence to undergo rigorous imprisonments for six months and to pay fine of Rs. 1,000/- for the offence for which he was convicted. 10. In the above mentioned case, after setting aside the order of the Additional Session Judge, Narnaul, Yad Ram was awarded sentence to undergo rigorous imprisonments for six months and to pay fine of Rs. 1,000/- for the offence for which he was convicted. In default of payment of fine, he was directed to further undergo rigorous imprisonment for two months. 11. In State of Jammu and Kashmir v. Vinay Nanda, 2001(1) RCR(Crl.) 532 (SC) : AIR 2001 SC 611, it was laid down that where the mandate of law is clear and unambiguous, upon conviction the Court has not option but to pass the sentence as provided under the statute. Reference made to cases where only sentence of fine was imposed without sending the accused to jail was taken notice of and it was observed that perusal of the aforesaid judgments indicates that in none of these cases the Court considered the effect of provisions of law prescribing the minimum sentence upon conviction under the Act. Accordingly, minimum sentence provided under the statute was imposed. Dealing with the issue of requirement of statute for imposing the minimum sentence, the Court has to record special reasons. It was observed that "special reasons" have to be distinguished from `good or `other reasons. Similarly pendency of criminal case for over a period of time can also not be treated as a special reason. Prolonged litigation in the country is admittedly a general reason in criminal cases. 12. In Lashkri Ram v. State of H.P., 2001 SCC(Cri.) 111, the milk sold by the appellant was found to contain fat as well as solid not fat contents below the prescribed standard. After considering the circumstances of the case the sentence was reduced to the minimum provided under the Act of 1954. Similar view was taken in Ram Lal v. State of Rajasthan, 2000(4) RCR(Crl.) 646 (SC) : 2001 SCC (Cri.) 120. In State of Haryana v. Pawan Kumar, 1998 SCC (Cri.) 1510, the High Court taking into account that since the offence was committed more than 16 years have elapsed had reduced the sentence to the period already undergone which was less than 9 months minimum sentence prescribed under the Act. After setting aside the order of the High Court substantive sentence of rigorous imprisonment of six months was imposed upon the accused. 13. After setting aside the order of the High Court substantive sentence of rigorous imprisonment of six months was imposed upon the accused. 13. In the present case merely because the accused had kept in his possession the milk for preparation of tea would not justify imposition of lesser sentence than the minimum prescribed under the Act. Further, because the petitioner had to face trial for more than 16 years under the circumstances cannot be taken into account because once the offence is held to have been proved appropriate sentence has to be imposed as prescribed under the Act. 14. For the aforesaid reasons, there is no merit in the petition and the same is accordingly dismissed. Petition dismissed.