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Madhya Pradesh High Court · body

2002 DIGILAW 738 (MP)

RAM BHAJAN v. STATE OF M P

2002-08-02

S.L.JAIN

body2002
Judgment ( 1. ) REVISION petitioner Ram Bhajan has been convicted under Section 16 (1) (a) (i) of the Prevention of Food Adulteration Act, 1954 (here in after) referred to as "act" for short) and sentenced to undergo R. I. for 6 months and pay a fine of Rs. 1,000/- with default clause. The conviction and sentence have been confirmed by the Sessions Judge, hence this revision. ( 2. ) PETITIONER was a milk vendor. On 18-2-1981 he was selling buffalo milk. Hardayal Dubey (P. W. 2), Food Inspector exercising jurisdiction over Village Saliwada, Block Kundum, accosted the petitioner, disclosed his identity and desired to purchase the buffalo milk for the purpose of analysis and dealt with the same in accordance with the provisions of the Act and Rules framed thereunder. A part of the sample was sent to the public analyst who reported that the milk did not conform to the standard prescribed for buffalo milk and was adulterated. A copy of the report with intimation was forwarded to the revision petitioner. After the Food Inspector lodged a complaint, revision petitioner denied his guilt. The two Courts below on the appreciation of the evidence produced by the Food Inspector Hardayal Dubey (P. W. 1) and the documentary evidence, upheld the prosecution case. ( 3. A copy of the report with intimation was forwarded to the revision petitioner. After the Food Inspector lodged a complaint, revision petitioner denied his guilt. The two Courts below on the appreciation of the evidence produced by the Food Inspector Hardayal Dubey (P. W. 1) and the documentary evidence, upheld the prosecution case. ( 3. ) LEARNED Counsel for the petitioner raised the following grounds challenging the correctness, legality and propriety of the conviction recorded against the petitioner :- (1) That the petitioner filed an application to summon the local health authority but the same was rejected by the Trial Court vide order dated 4-7-84, which caused great prejudice to the petitioner; (2) That the offence punishable under Section 16 (1) (a) (i) of the Act is to be tried summarily but the learned Trial Court did not try the case in a summary way; (3) That the prosecution for an offence under the Act could not have been instituted except by or with the written consent of state Govt, as envisaged under Section 20 (1) of the Act; (4) That the provisions of Section 11 (1) (b) of the Act were not complied with; (5) That the provisions of Rules 16,17 and 18 of the Prevention of Food Adulteration Rules, 1955 (hereinafter referred to as the "rules" for short) have not been complied with; (6) That the milk is covered by the expression "primary food" as defined in Section 2 (xii-a) of the Act and therefore, simply because the purity and its quality was not as per prescribed standard, it can not be said to be adulterated, unless it is injurious to health; (7) That the factum of Stirling of the milk is missing in the complaint and there is absence of evidence also in this regard; (8) That the prayer of the accused that sample be sent for analysis to the Director Central Food Laboratory, was turned down by the Trial Court without any justification; (9) That there is no material to hold that the petitioner is a milk vendor; (10) That the provisions of Section 13 (2) of the Act read with rule 9-A of the Rules have not been complied with. I shall deal with these contentions seriatim. ( 4. I shall deal with these contentions seriatim. ( 4. ) REGARDING first contention the perusal of the record depicts that the application to summon local health authority was filed by the accused 7 months after the entering into the defence. During 6-7 months several adjournments were sought to produce the defence witnesses. Name of local health authority was not mentioned in the list of defence witnesses submitted by the accused. Learned Magistrate rejected the application after recording the reasons therefor. Learned Counsel could not satisfy as to any prejudice was caused to the accused due to the rejection of this application. Therefore, there can not be any interference at this stage on this count. ( 5. ) REGARDING second contention learned Counsel appearing for the petitioner submitted that it was obligatory on the part of the Trial Court to consider the case summarily and follow the proper procedure in that regard and failure to do so, vitiates the trial. Learned Counsel further submitted that the learned Magistrate should have recorded the reasons for not trying the case in a summary way. It is true that the Trial Court has not passed the specific order for trying the case as a warrant case but on that ground proceedings would not vitiate for non-compliance of provisions of Section 16-A of the Act. The Magistrate is also empowered to try the case as a warrant trial and the accused was given full opportunity to contest the case. Non mentioning of reason for not trying the case in a summary way would at the most amount to irregularity and would not vitiate the trial. A trial conducted in violation of section 16-A of the Act can not be held to be vitiated without first finding out the prejudice if any caused to the accused. Learned Counsel could not satisfy that any prejudice was caused to the accused due to warrant trial. An accused gets a better opportunity to defend in a warrant trial and it can not be said that any prejudice was caused to the accused due to warrant trial. The contention therefore, deserves rejection. Accordingly it is rejected. ( 6. ) COMING to the next contention, it is true that written consent under Section 20 of the Act is a condition precedent to launch the prosecution and absence of such consent would vitiate the proceedings. The contention therefore, deserves rejection. Accordingly it is rejected. ( 6. ) COMING to the next contention, it is true that written consent under Section 20 of the Act is a condition precedent to launch the prosecution and absence of such consent would vitiate the proceedings. Hardayal Dubey (P. W. 1) has stated that permission to prosecute the petitioner was given as per Ex. P-12. Ex. P-12 is the permission given by the duly authorised person. The question as to whether local health authority was authorised by the State govt. in this behalf can not be raised in the revision petition for the first time. Complainant referred to Notification No. 7770/15, dated December 21,1959, which was in force on the date of the incident and claimed that on the strength of this Notification he is empowered to file the complaint. It can also not be said that the authority did not apply its mind while granting permission. Therefore, this contention also holds no water. ( 7. ) REGARDING the 4th contention raised by the learned Counsel for the petitioner that Section 11 (1) (b) of the Act requires that the sample should be divided into three parts and mark and seal are fasten up on each part in such a manner as its nature permit and take the signature or thumb impression of the person from whom the sample has been taken in such place and in such manner as may be prescribed in this regard, he submitted that signature of the accused was not taken on the sealed articles and due to this non-compliance of mandatory provision, trial is vitiated. It is true that failure to comply with the mandatory provisions would be a ground for acquittal of the accused, but in this case Food Inspector has very clearly stated in Para 4 of his statement that signature of the petitioner could not be obtained on the sample as accused fled away from the spot. There is no reason to disbelieve the testimony of the food Inspector that when the process of taking sample was in progress, accused ran away from the place of incident. Thus, the accused is himself responsible for this non-compliance. The accused/petitioner can not escape the conviction by simply escaping from the spot. ( 8. There is no reason to disbelieve the testimony of the food Inspector that when the process of taking sample was in progress, accused ran away from the place of incident. Thus, the accused is himself responsible for this non-compliance. The accused/petitioner can not escape the conviction by simply escaping from the spot. ( 8. ) REGARDING non-compliance of Rules 16,17 and 18 of the Rules, learned Counsel did not specifically argue as to which particular requirement of these Rules was not complied with. Rule 16 deals with manner of packing and sealing the samples, Rule 17 provides for manner of despatching containers of samples and Rule 18 provides that memorandum and impression of seal to be sent separately to the public analyst. As the Food Inspector observed all the formalities while taking the sample, it can not be said that any particular mandatory provision was not complied with. Therefore, this contention also deserves to be turned down, which I do accordingly. ( 9. ) REGARDING the contention that milk is covered by the expression "primary food", learned Counsel submitted that the milk is a produce of agriculture in its natural form, therefore, it is a primary food. In support of his contention learned Counsel cited various cases, Administration of City of nagpur Corporation Vs. Laxman Raoji Kundiwala, (1985) II FAC 95, State of kerala Vs. A. P. Abdulkhadar, (1978) II FAC 300 and Bhopal Vs. State of M. R, (1991) FAJ 426, are some of them. I am not inclined to accept this contention of the learned Counsel. The word agriculture does not appear to have been used in Section 2 (xii-a) of the Act in a wider sense. Whether the word should be taken in a narrower or wider sense should be determined keeping in view the various provisions of the statute in which it is used. Agriculture includes cultivating the ground, preparation of soil, planting of the seeds and harvesting of the crop. Though horticulture has been included in Section 2 (xii-a) but dairy farming and live stock breeding has not been included in the definition of primary food. If the Parliament intended to include management of live stock also it would have expressly so added in the definition while adding horticulture. Definition given in Section 2 of clause (xii-a) of the Act is not an inclusive definition. If the Parliament intended to include management of live stock also it would have expressly so added in the definition while adding horticulture. Definition given in Section 2 of clause (xii-a) of the Act is not an inclusive definition. It means any article or food being a produce of agriculture or horticulture. It is true that the wider definition of agriculture includes horticulture, food growing, seed growing, diary farming and live stock breeding and keeping but had the intention been to use the word agriculture in wider sense the Parliament would not have simply used the word produce of agriculture. Specifically adding the word horticulture suggests that the object was to include only agriculture and horticulture produce and exclude diary farming and live stock breeding. Definition include horticulture which involves production of food, flowers, vegetables, it may include growing up trees or plants but it is not wide enough to include the management of live stock. It is evident from the definition which is not inclusive that milk is not a primary food. The scope of restricted definition of "primary "food" can not be enlarged. It it impermissible to defeat legislative intent. ( 10. ) THE judgments cited by the learned Counsel relied on the dictionary meaning of the term agriculture. In Hariram Vs. State of M. P. , 1992 j cr. LJ 2135, after referring to a number of judgments this Court held that the milk obtained from any cattle, whether grass-fed or stall-fed of all descriptions is to be excluded from the definition of the term "primary Food" contained in clause (xii-a) of Section 2 (1-a) of the Act. There is no escape from the conclusion that the expression agriculture produce has been used by the legislature in a narrow sense as referring to natural produce from plant kingdom cultivated on land for human consumption in contradistinction to the diary products. The question of including live stock, poultry, fishery, silk worms, reared on the land or fed on the produce of land as forming part of the agricultural produce does not arise and milk can not be considered to be "primary Food". ( 11. ) NOW coming to the next proposition, learned Counsel submitted that before milk sample is taken, it should be stirred and made homogeneous. According to him reason for this is that the milk which is a liquid contains various constituents in different forms. ( 11. ) NOW coming to the next proposition, learned Counsel submitted that before milk sample is taken, it should be stirred and made homogeneous. According to him reason for this is that the milk which is a liquid contains various constituents in different forms. Some are lighter and do not have the specific gravity as other constituents have. The fat differs from the other constituents of the milk, which is lighter and does not mix with the other constituents of the milk for a very long time. If the sample is taken without stirring the milk the fat will come at the top. Its contents will not be the same in the lower portion. Learned Counsel for petitioner submitted that in this case, Food Inspector has not stated in his evidence that the milk was stirred before taking the sample, therefore, accused would be entitled to acquittal on this score. In support of his contention, learned Counsel has relied on some decisions Gulshan Vs. State of Haryana, (1986) FAJ 535, Corporation of City of Nagpur Vs. Prem Charan and another, (1986) FAJ 273, State of Punjab Vs. Balwant Singh, (1992) FAJ 412 and Mangilal Vs. State of M. P. , 1984 (2) FAC 88. ( 12. ) IT is true that it is not mentioned in the complaint that the milk was stirred and there is no evidence also in this regard. It is also true that every sample which is analysed should be representative sample but in the present case the container in which the milk was kept was in motion. When accused was accosted by the Food Inspector he was moving with the container. It is not that the container was lying on the ground stand still. In the container the milk was in motion, the solids other than the milk fat could not have been settled. If the milk would have been allowed to stand, fat contained would have come up on the top and accumulated there and in that case, fat percentage found in the milk would have been much more than the standard prescribed. As per standard of buffalo milk prescribed for the State of M. P. , minimum percentage of milk fat should be 5. 0 and minimum percentage of the milk solid non fat should be 9. As per standard of buffalo milk prescribed for the State of M. P. , minimum percentage of milk fat should be 5. 0 and minimum percentage of the milk solid non fat should be 9. In this case milk fat percentage found in the sample purchased from the petitioner was 4. 6 and the milk solid non fat was 8. 11 per cent. Thus, sample was sub standard in both respects and it can not be said that solid fat contents settled in the lower portion and fat contents settled in the upper portion. Therefore, this contention also does not find favour. ( 13. ) REGARDING the next proposition, learned Counsel submitted that the petitioner filed an application to send the sample for analysis to the director of Central Food Laboratory on 7-9-83 but the same was rejected. This application appears to have been disposed of by the Magistrate on 14-9-83. Prayer of the accused that the bottle of sample retained by the Public Health authority be called in the Court so that it may be shown that the signature of the accused is not there on the bottle, was refused on the ground that admittedly, sample bottle did not contain the signature of the accused as he ran away during the process of taking sample. There were two prayers in the application, one that the signature of the accused on the sample bottle be compared with the admitted signature of the accused and the other one that the sample bottle be sent to the Director, Central Food Laboratory. If no order was passed on the second limb of the prayer, it was the duty of the accused to further prosecute the request. Accused now can not take advantage of his own fault in not requesting further that no order has been passed on his prayer to send the sample for analysis to the Director, Central Food Laboratory and some order on that prayer may be passed. Therefore, on this count also it will not be proper to interfere with the order of conviction. ( 14. ) COMING to the next contention, Hardayal Dubey (P. W. 1) has stated that accused was carrying milk with him for sale. On this point, this witness was not cross examined at all. Therefore, on this count also it will not be proper to interfere with the order of conviction. ( 14. ) COMING to the next contention, Hardayal Dubey (P. W. 1) has stated that accused was carrying milk with him for sale. On this point, this witness was not cross examined at all. Even if the applicant was not a regular vendor of milk, from the evidence it is established that on the relevant date he was selling the milk. It has also been very well established from the evidence of Hardayal Dubey (P. W. 1) that the accused sold milk to him for using it for analysis. A sale of an article of food to the Food Inspector for using it for analysis would be a sale and is specifically mentioned in clause (xiii) of Section 2 as a sale whether it is voluntary or not and even though there is an element of compulsion in it. [see Mohd. Yamin Vs. The State of U. P. and another ( AIR 1973 SC 484 ) and The Food Inspector Calicut Vs. Cherukattil Gopalan and another ( AIR 1971 SC 1725 )]. ( 15. ) WHEN the seller readily agrees to allow the Food Inspector to take the sample and accepts the price it will be a case of voluntary sale. If the vendor does not agree to the sample being taken, Food Inspector may take the sample even against his wishes. In that case also it will be a sale under clause (xiii) of Section 2 of the Act. When the Food Inspector tenders the price there is a full compliance with Section 10 (3) of the Act and the transaction would be a sale irrespective of the fact that the seller declined to accept the price. It is not necessary for the prosecution to prove that the accused sold the article to other persons or carried on the business of sale of the article as a regular feature. A vendor in an article of food can not escape the clutches of the law merely on technical grounds. ( 16. ) IN the wide definition of sale, exposure for sale or having in possession for sale have been included. A vendor in an article of food can not escape the clutches of the law merely on technical grounds. ( 16. ) IN the wide definition of sale, exposure for sale or having in possession for sale have been included. Thus the sale of an article of food for analysis will not take the case out of clause (xiii) of Section 2 of the Act therefore, this contention also is liable to be rejected. ( 17. ) NOW, I shall deal with the last contention of the Counsel appear ing for the petitioner. The Counsel submitted that under Section 13 (2) of the act and Rule 9-A of the Rules it is mandatory for the Local Health Authority to forward a copy of the report of the result of the analysis within a period of ten days after the institution of prosecution. Perusal of Ex. P-13 and Ex. P-l demonstrates that on 29-8-81 the accused was informed that the milk purchased from him was found to be adulterated. Thus, there had been a compliance of provisions of Section 13 (2) of the Act and Rule 9-A of the Rules after receipt of the notice (Ex. P-13), accused had an opportunity to request to the Court to send the sample for analysis to the Central Food Laboratory and irregularity in the compliance of Section 13 (2) of the Act may be cured. It is not a case of complete denial of that opportunity to the accused which may raise a presumption of prejudice having been caused to him. Accused had filed an application for sending the sample to the Director, Central Food laboratory and an order was passed on that application but the order was passed on the assumption that the prayer of accused is to call the bottle for the verification of the signature of the accused on it. If there was any confusion due to the language used in the application, it was the duty of the Counsel for the accused to request the Court to pass the orders on the prayer of sending the sample to the Director, Central Food Laboratory. If there was any confusion due to the language used in the application, it was the duty of the Counsel for the accused to request the Court to pass the orders on the prayer of sending the sample to the Director, Central Food Laboratory. When the accused did not prosecute the matter he can not take the advantage of his own wrong where it can not be said that the accused was, in any way, prejudiced for want of strict compliance of Section 13 (2) of the Act or Rule 9-A of the Rules. Therefore, on this count also the conviction can not be disturbed. ( 18. ) THERE is one more reason for discarding this argument. The complaint appears to have been filed on 18-8-81 as is mentioned on the top of the complaint (underlined by me by red ink ). Thereafter, the date was fixed for 29-8-81. Accused appeared in the Court on 20-10-81. The application to send the sample to the Director, Central Food Laboratory was filed on 7-9-83. No justification has been given for filing the application after a long lapse of two years. As per the requirement of Section 13 (2) of the Act the accused was to file such an application within a period of ten days from the date of the receipt of the copy of the report. It is true that Section 13 (2) of the Act does not lay down any strict rule of limitation and if the delay in filing the application is reasonable, the same can not be rejected. The accused has not given any reason for the delay. He, therefore, can not take advantage of his own wrong in making the application after an inordinate delay. ( 19. ) SEQUEL to the above discussion is that the finding of the Trial court and also that of the Lower Appellate Court regarding conviction of the accused under Section 7 read with Section 16 (1) (a) (i) of the Act is sustainable. ( 20. ) REGARDING the sentence also the learned Counsel submitted that the matter is very old. No useful purpose will be served by sending the accused to the jail after the long lapse of decades. The law provides a minimum sentence. I do not find any reason to give sub-minimum sentence. ( 20. ) REGARDING the sentence also the learned Counsel submitted that the matter is very old. No useful purpose will be served by sending the accused to the jail after the long lapse of decades. The law provides a minimum sentence. I do not find any reason to give sub-minimum sentence. Therefore, the sentence imposed upon the accused by the Courts below can not be said to be unreasonable and no interference in the matter is called for. ( 21. ) FOR the reasons indicated above, the revision petition is dismissed. Criminal Revision dismissed.