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2008 DIGILAW 482 (PNJ)

Sham Lal v. State Of Punjab

2008-02-20

KANWALJIT SINGH AHLUWALIA

body2008
Judgment Kanwaljit Singh Ahluwalia, J. 1. Mr. K.S. Nalwa appearing for petitioner, at the outset, states that he will not contest the conviction recorded by the learned trial Court and affirmed by lower appellate Court. He further states that his prayer is that since a period of 22 years has elapsed from the day of occurrence, petitioner be released on probation, particularly when he was sentenced to only six months rigorous imprisonment and has undergone 9 days of his sentence. 2. Briefly stated, petitioner was running a shop at Kohara Road, Sahnewal. In his shop, there were 70 kgs of chilly power lying in a bag. Mr.K.K. Mehra, Food Inspector took possession of 600 gms of chillies and the sample was prepared in accordance with the provisions of the Act. Samples were taken on 22nd August, 1986. Samples were sent to the Public Analyst, Punjab, Chandigarh. He opined that the sample contained foreign starch and non-permitted oil soluble coaltar dye of red shade as an admixture and therefore, sample was not in conformity with the minimum standard prescribed under the Prevention of Food Adulteration Act. Petitioner was not satisfied and sought that the sample be got tested from the Director, Central Food Laboratory. Accordingly, sample was sent to Director, Central Food Laboratory, Mysore, who, vide his report dated 18th June, 1987 opined that the moisture content exceeded maximum specified limit of 12 per cent weight and total ash content was exceeding the maximum specified limit of 8 per cent by weight. 3. It is not disputed that report of the Central Food Laboratory will supersede the report of Public Analyst. Comparison of the two reports can also be construed as a mitigating circumstance, in favour of the petitioner on a question of sentence, as kind of adulteration, which can be imputed to the petitioner, stood diluted by the report of the Central Food Laboratory, Mysore. 4. Since Mr.Nalwa appearing for the petitioner is candid enough to state that findings of the two courts below cannot be contested by him and this Court cannot re-appreciate the evidence. The benefit of protracted trial of 22 years is to accrue to the petitioner and it is further submitted by Mr.Nalwa that in the past 22 years, petitioner has committed no other offence, therefore, this Court should take antecedents of the petitioner into consideration. The benefit of protracted trial of 22 years is to accrue to the petitioner and it is further submitted by Mr.Nalwa that in the past 22 years, petitioner has committed no other offence, therefore, this Court should take antecedents of the petitioner into consideration. Furthermore, as per the trial Court judgment in 1986, petitioner was of 32 years of age. Within last 22 years he has fastened himself with many liabilities of family and marriageable children. It has been further stated that he is the sole bread-earner of the family. 5. Mr. Nalwa has relied upon the judgment rendered by this Court in Ramesh Chand alias Ramesh Kumar v. State of Haryana 2005 Criminal Law Journal (1569), wherein it has been held as under: 19. No doubt, the cases under the Prevention of Food Adulteration Act should be seen with strictness, yet in view of the judgments of this Court in Narain Dass v. State of Haryana 1997 (3) RCR (Crl.) 311 (P&H) and Jog Dhian v. State of Haryana 2001(2) RCR (Criminal) 331 and keeping in view the facts and circumstances of this case i.e. the petitioner has already faced the protracted trial of more than 16 years, he is first offender, was a petty shop keeper in rural area and was selling the branded non-iodised salt; which was prohibited vide notification just one year prior to the taking of sample and the fact that his case is covered by the second proviso of Section 16 of the Act, I am of the opinion that ends of justice will be met if the petitioner is let off on probation. The judgment of conviction is therefore maintained and the order of sentence is modified to the extent that the petitioner will be released on probation on his furnishing requisite bonds to show good conduct for a period of one year before the trial Magistrate within a period of one month from the date he received certified copy of this judgment. 6. Counsel has further relied upon Shamsher Singh v. State of Haryana 2006 (2) RCR (Criminal) (211). It will be apposite here to reproduce para 9 of the judgment, on which, much reliance has been placed by the counsel: 9. 6. Counsel has further relied upon Shamsher Singh v. State of Haryana 2006 (2) RCR (Criminal) (211). It will be apposite here to reproduce para 9 of the judgment, on which, much reliance has been placed by the counsel: 9. The next question, which has been pressed into service by the Learned Counsel for the petitioner is that taking into consideration the fact that the occurrence took place on 19.6.1985 and the fact that the petitioner had given his age as 18 years at the time of framing of the charge, he would be under 18 years of age on the date of the commission of the offence. In view of this, Learned Counsel has submitted that the petitioner is entitled to the benefit of Probation of Offenders Act as it is permissible to extend the same to cases where the accused is under 18 years of age. To substantiate this plea, the Learned Counsel then submitted that the petitioner was only a servant and had no control over the artificial dye which was used by the owner for colouring Laddus. It was also submitted that over 20 years have passed and it would be in the fitness of things if the petitioner is dealt with under the provisions of Probations of Offenders Act so that members of his family are spared from the strain which they are likely to suffer in case he is required to undergo the remaining period of sentence imposed upon him. 7. Mr.Nalwa has also relied upon the view taken in Balbir v. State of Haryana 2006 (1) RCR (Criminal) (723). 8. Taking totality of circumstances into consideration, it will be just to release the petitioner on probation under Probation of Offenders Act. He will furnish bonds to this effect with the Chief Judicial Magistrate, Ludhiana on or before 15th May, 2008. However, sentence of fine is enhanced to Rs. 10000/-and same shall be converted as cost of litigation. Non payment of fine will render the present revision petition as dismissed. 9. With these observations, present revision petition is disposed off.