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2009 DIGILAW 513 (PNJ)

Kanwar Pal v. State of Haryana through G. F. I.

2009-03-18

SHAM SUNDER

body2009
JUDGMENT Sham Sunder, J.:-This revision-petition is directed against the judgment dated 24.10.2001, rendered by the Court of Sessions Judge, Jind, vide which it dismissed the appeal, against the judgment of conviction dated 27.11.1998, and the order of sentence dated 28.11.1998, rendered by the Court of Sub Divisional Judicial Magistrate, Safidon, convicting the accused, for the offence punishable under Section 7 read with Section 16 of the Prevention of Food Adulteration Act, 1954 (hereinafter referred to be as the ‘Act’ only) and sentenced him to undergo RI for a period of one year and to pay a fine of Rs.100/-, in default of payment of fine, to undergo further rigorous imprisonment for a period of three months. 2. The facts, in brief, are that on 26.02.1994 at about 9.15 AM, the accused (now revision-petitioner) was intercepted at Assandh Road near Old Octroi Post, Safidon when he was having 60 liters of cow’s milk for public sale, contained in two drums on motorcycle. The entire milk, in the drums, was mixed properly and made uniform/homogeneous and thereafter a sample was drawn therefrom, in accordance with the provisions of law. The sample, so taken, was transferred into three clean and dry bottles, which were separately stoppered labelled and sealed, in accordance with the provisions of law. One part of the sample, was sent to the Public Analyst, Haryana, Chandigarh, who found the same to be adulterated. Thereafter, a criminal complaint was filed against the accused. 3. On his appearance, in the Court, the accused was supplied a copy of the complaint and other relevant documents, under the provisions of law. 4. In pre-charge evidence, Prem Chand Gupta, Government Food Inspector,(PW-1) was examined. Thereafter, the pre-charge evidence was closed. 5. After hearing the Counsel for the parties, and, on going through the pre-charge evidence, the trial Court found that a prima-facie case was made out for the offence punishable under Section 7 read with Section 16(1)(a)(i) of the Act, against the accused. Accordingly, charge was framed against him, to which he pleaded not guilty and claimed judicial trial. 6. In the after-charge evidence, Prem Chand Gupta, Government Food Inspector was re-called for further cross-examination. Dr. Wasudev Bansal, SMO, Uchana, was examined as PW-2, and Dr.P.P. Likha, SMO Incharge PHC Bapoli, was examined as PW-3. Thereafter, the after-charge evidence was closed, by the complainant. 7. 6. In the after-charge evidence, Prem Chand Gupta, Government Food Inspector was re-called for further cross-examination. Dr. Wasudev Bansal, SMO, Uchana, was examined as PW-2, and Dr.P.P. Likha, SMO Incharge PHC Bapoli, was examined as PW-3. Thereafter, the after-charge evidence was closed, by the complainant. 7. The statement of the accused, under Section 313 of the Code of Criminal Procedure, was recorded. He was put all the incriminating circumstances, appearing against him, in the prosecution evidence. He pleaded false implication. He, however, did not lead any evidence in his defence. 8. After hearing the Counsel for the parties, and, on going through the evidence, on record, the trial Court, convicted and sentenced the accused, as stated hereinbefore. 9. Feeling aggrieved, against the judgment of the trial Court, an appeal was preferred by the accused-appellant, which was dismissed vide judgment dated 24.10.2001, by the Court of Sessions Judge, Jind. 10. Still feeling dis-satisfied, the instant revision petition was filed by the revision-petitioner. 11. I have heard the Counsel for the parties, and have gone through and perused the evidence and record, of the case, carefully. 12. The Counsel for the revision petitioner, submitted that the milk, in the drum, was not homogenized and, as such, it could not be said that the representative sample, was drawn by the Government Food Inspector. It was further submitted by him, that on account of this reason, if there was any variation with regard to the milk solid not fat, no criminal liability could be fastened upon the accused. It was further submitted by him that no independent witness was examined. It was further submitted by him that the Courts below were, thus, wrong in recording conviction and awarding sentence. 13. On the other hand, the Counsel for the respondent-State, submitted that, as per the report Ex.PE of the Public Analyst, Haryana, Chandigarh, milk solid not fat was found 14% deficient of the minimum prescribed standard and, as such, the sample was adulterated. It was further submitted by him that the milk was properly homogenized, as was held by the Courts below. It was further submitted by him that the independent witness, who was joined, was given up, as won over, and, therefore, he could not be examined. He further submitted that the judgment of conviction and the order of sentence of the Courts below, are legal and valid and warrant no interference. 14. It was further submitted by him that the independent witness, who was joined, was given up, as won over, and, therefore, he could not be examined. He further submitted that the judgment of conviction and the order of sentence of the Courts below, are legal and valid and warrant no interference. 14. After giving my thoughtful consideration, to the rival contentions, raised by the Counsel for the parties, in my considered opinion, the submissions advanced by the Counsel for the revision-petitioner, are liable to be rejected, for the reasons to be recorded hereinafter. Prem Chand Gupta, Government Food Inspector,(PW-1), in clear-cut terms, stated that the milk in the drums, was properly mixed and homogenized by stirring the same. No doubt, in his after charge evidence, it was stated by him that it was made homogeneous with a vessel. Dr. Vasudev Bansal, SMO, Uchana, (PW-2), also stated that the milk of the drums, was properly mixed with a measure and thereafter the sample was taken therefrom. There was no reason, on the part of this witness, to depose falsely. The Courts below, on the appreciation of cogent, convincing and reliable evidence of Prem Chand Gupta, Government Food Inspector,(PW-1), and Dr. Vasudev Bansal, SMO, Uchana, (PW-2), were right, in recording the concurrent findings, that the sample was taken from the milk, after completely homogenizing the same. It is settled principle of law, that the Court in its revisional jurisdiction, cannot re-evaluate and re-appreciate the evidence, produced by the parties, until and unless, it comes to the conclusion, that the findings, recorded by the Courts below are perverse or erroneous on account of mis-reading of evidence. The findings recorded by the Courts below, are not perverse and, as such, warrant no interference. 15. The Counsel for the revision-petitioner, however, placed reliance on Jai Singh v. State of Haryana 2000(3) RCR (Criminal), 731 in support of his contention that the presence of much higher percentage of milk fat content in the milk and little deficiency in milk solids not fat content, will suggest that there was either improper sampling, by the Food Inspector, or imperfect analysis of the sample was done. The facts of the aforesaid case, are clearly distinguishable, from the facts of the instant case. In the instant case milk solids not fat were deficient not to a minor extent, but to a great extent. The facts of the aforesaid case, are clearly distinguishable, from the facts of the instant case. In the instant case milk solids not fat were deficient not to a minor extent, but to a great extent. No help, therefore, can be drawn, by the Counsel for the revision-petitioner, from the aforesaid case. The submission of the Counsel for the revision-petitioner being without merit, must fail and the same stands rejected. 16. In State of Punjab v. Bhajan Singh, 1992(1) Prevention of Food Adulteration Cases,33, a case decided by a Division Bench of this Court, and State of Punjab v. Teja Singh, 1976 (II) Prevention of Food Adulteration Cases 44, a case decided by a Full Bench of this Court, it was held that even marginal deviation, from the prescribed standards laid down, by the Act, could not be ignored and acquittal could not be recorded, on the basis thereof. In this view of the matter, even if, it is assumed that there was marginal deficiency, in respect of milk solids not fat that did not, in any way, go in favour of the accused, to earn acquittal as the fact remains that the milk solids not fat was not up to the prescribed standards laid down in the Act, and, as such, the sample was adulterated. The principle of law, laid down in the aforesaid cases, is fully applicable to the facts of the instant case. No doubt, the Counsel for the revision-petitioner placed reliance on Nortan Mal v. State of Rajasthan, 1995(3) RCR (Criminal), 311, a case decided by the Apex Court, in support of his contention. In that case, the sample of chilly contained total ash excess of 38 per cent. In the peculiar facts and circumstances of the case, prevailing therein, it was held that there was possibility of error of judgment, in analysis. No invariable principle of law, was laid down in Nortan Mal’s case (supra) that if there is marginal deficiency, the accused must be given the benefit of doubt, and acquitted. No help, therefore, can be drawn by the Counsel for the revision-petitioner from the said case. The submission of the Counsel for the revisionpetitioner, being without merit, must fail and the same stands rejected. 17. In this case Om Parkash, independent witness was joined, but he was given up as won over by the Government Food Inspector, vide statement dated 18.09.1998. The submission of the Counsel for the revisionpetitioner, being without merit, must fail and the same stands rejected. 17. In this case Om Parkash, independent witness was joined, but he was given up as won over by the Government Food Inspector, vide statement dated 18.09.1998. It means that the Government Food Inspector, complainant, exercised the discretion, vested in him, in giving up Om Parkash, independent witness, as won over by the accused, in a bona-fide manner. It could not be said that the discretion exercised by the Government Food Inspector, in giving up Om Parkash, independent witness, as won over by the accused, was, in any way, arbitrary or capricious. The evidence produced by the prosecution, is creditworthy, and inspires confidence, in the mind of the Court. In Masalti Vs. State of Uttar Pradesh, AIR 1965 (S.C.) 202, it was held that it is, undoubtedly, the duty of the prosecution to lay before the Court, all material witnesses, available to it, whose evidence is necessary for unfolding its case, but it would be unsound to lay down it, as a general rule, that every witness, must be examined, even though his evidence, may not be very material or, even if, it is known that he has been won over or terrorized. In Roop Singh Vs. State of Punjab 1996 (1) RCR 146, a Division Bench of this Court, held that no adverse inference can be drawn, when the only independent witness, was given up by the prosecution, as won over by the accused. It was further held, in the said authority, that the panch witnesses, being human beings, are quite exposed and vulnerable to human feelings of yielding, browbeating, threats and inducements, and giving up of the public witnesses, as won over, is fully justified, in the present day situation, prevailing in the society. In Karnail Singh Vs. State of Punjab 1983 Criminal Law Journal, 1218, a Division Bench of this Court, held that where the independent witness, was won over by the accused, and only the officials witnesses, were examined, who were considered to be not interested persons, their evidence cannot be doubted, on the ground of their official status. The principle of law, laid down, in the said authorities, is fully applicable to the facts of the present case. The principle of law, laid down, in the said authorities, is fully applicable to the facts of the present case. In this view of the matter, the submission of the Counsel for the revision-petitioner, being without merit, must fail, and the same stands rejected. 18. No other point, was urged, by the Counsel for the parties. 19. For the reasons recorded above, the revision-petition, being devoid of merit, is dismissed. The judgment of conviction dated 27.11.1998 and the order of sentence dated 28.11.1998, rendered by the Court of Sub Divisional Judicial Magistrate, Safidon, and the judgment dated 24.10.2001 rendered by the Appellate Court, affirming the judgment of the trial Court, are upheld. If the revision-petitioner is on bail, his bail bonds shall stand cancelled. 20. The Chief Judicial Magistrate, shall take necessary steps, to comply with the judgment promptly, in accordance with the provisions of law, on receipt of a copy thereof. --------------------