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2010 DIGILAW 1020 (PNJ)

Suresh Kumar v. State Of Haryana

2010-02-26

A.N.JINDAL

body2010
Judgment A.N.Jindal, J. 1 Challenge is to the judgment dated 7.4.2003 passed by the Additional sessions Judge, Kurukshetra, dismissing the appeal of the accused - petitioner Suresh Kumar (herein referred as the accused) against the judgment dated 9/10.9.1998 passed by the Chief Judicial Magistrate, Kurukshetra, convicting and sentencing him to undergo rigorous imprisonment for one year and to pay fine of Rs.2000/- under Section 16(l)a)(i) of the Prevention of Food Adulteration Act, 1954 (herein for short the Act). 2 In brief, the prosecution story is that complainant Sh. R.D. Goel, Food Inspector filed a complaint against the accused, stating that on 29.5.1998, he along with Dewan Chand and Dr.T.R. Girdhar inspected the Pan-Biri and Cold drink shop of the accused situated at bus-stand, Ladwa Road, Babain. The complainant after serving notice in writing on Form-VI purchased sweetened carbonated water on payment of Rs. 4.50 paise against a receipt Ex.PB. All the nine bottles were opened and their contents were poured into clean, dry and empty vessel. After mixing the material thoroughly, it was divided into three equal parts and poured in three bottles, which were properly wrapped, stopped and sealed. The sealed vessels were signed by the accused in such a way that his signatures were obtained half on the paper slip and half on the wrapper of the bottles. The memos Ex. PA, PB, PC and Ex.PC/1 were prepared on the spot and those were signed by the accused and were got attested by Dr.T.R. Girdhar and PW Dewan Chand. Sample was got examined from the Public Analyst Haryana, Chandigarh and it was found to be adulterated. Thereafter, the complainant moved the complaint Ex. PA and also informed the Local health Authority, Kurukshetra about it. 3 Upon notice, the accused appeared and copies of the complaint and other documents were supplied to him. 4 Finding a prima-facie case against the accused on the basis of the pre- charge evidence, he was charged under Section 16(l)(a)(i) of the Act, to which he pleaded not guilty and claimed trial. 5 To prove its case, the prosecution examined as many as three witnesses and tendered into evidence the copy of the complaint Ex.PF, receipt Ex.PB, report of the Public Analyst Ex.PD, Postal Receipt Ex.PG and the notice sent to the accused by the Local Health Authority Ex.PE. 5 To prove its case, the prosecution examined as many as three witnesses and tendered into evidence the copy of the complaint Ex.PF, receipt Ex.PB, report of the Public Analyst Ex.PD, Postal Receipt Ex.PG and the notice sent to the accused by the Local Health Authority Ex.PE. 6 When examined under Section 313 of the Code of Criminal Procedure, the accused denied all the incriminating circumstances appearing against him and pleaded his false implication in the case. In defence, Dewan Chand (DW1) was examined. However, the trial ended in conviction, as referred to above. The appeal also failed. Hence, the present petition. 7 Heard. 8 The records transpire that the Courts below have returned concurrent findings of fact regarding the guilt of the petitioner on proper appreciation of the evidence. The report Ex.PD received by the Local Health Authority from the Public Analyst indicates that the sample was not upto the prescribed standard as Sucrose was found to be 4.73% as against the minimum prescribed standard of 5.0% and Saccharine was detected as 85 PPM without any label declaration which was in contravention of Rule 47 of the Prevention of Food Adulteration Rules, 1955 (herein for short the Rules) Dr.T.R. Girdhar (PW2) in whose presence the sample was taken, has fully supported the version of the complainant. The other witness Radhey Sham (PW3), Clerk in the office of the Local Health Authority proved the receipt of the four copies of the report Ex.PD of the Public Analyst, Haryana, Chandigarh on 17.6.1999 and that two copies of it were sent to the complainant/Government Food Inspector for filing a complaint in the Court and one copy was sent to the accused along with a notice by Registered Post. This witness also proved the carbon copy of the notice Ex.PF as also the postal receipt Ex.PG. 9 The contention of the counsel for the accused that the Health Authorities did not comply with the provisions of Section 13(2) of the Act is of no consequence, in view of the following observations of the Appellate Court: "... In this regard, my attention was drawn to the letter sent to the appellant - accused at his address Suresh son of Inder Nath, Cold Drink Seller, Ladwa Road, Babain, District Kurukshetra," which is Ex.PH. In this regard, my attention was drawn to the letter sent to the appellant - accused at his address Suresh son of Inder Nath, Cold Drink Seller, Ladwa Road, Babain, District Kurukshetra," which is Ex.PH. This letter had been received with the report that the postman had been visiting the shop of the appellant - accused continuously for seven days but he was not found available as he had gone to Vaishno Devi, and thereafter, also different reports were made by the postman that the appellant-accused has not come. Perusal of the envelope shows that all these reports made by the postman seem to have been procured one by appellant-accused Suresh Chand as he was having shop of Cold Drink in the main bazaar of Ladwa Road, Babain. In his personal bond, the appellant-accused Suresh had given his address at which this notice/letter was sent to him. So, there was no question of the appellant- accused being remained absent for quite long time from his shop. Moreover, the appellant-accused Suresh Kumar did not appear in the Court after filing of the complaint against him by the Government Food Inspector on 26.7.1989 and summons of the appellant - accused Suresh Kumar were issued for 30.8.1989, but he did not appear despite receiving summons, and ultimately, his bailable warrants were issued which were also evaded by the appellant- accused and thereafter the learned lower court had been left with no option but to issue declaration under Sections 82/83 of the Code of Criminal Procedure and ultimately, the appellant - accused had appeared on 26.9.1995 in the Court. All this goes to show that the appellant - accused was evading the proceedings and intentionally did not appear in the Court. All this goes to show that the appellant - accused was evading the proceedings and intentionally did not appear in the Court. No doubt, the provisions of Section 13(2) of the Act for sending the sample for re-analysis are meant for the accused to have his sample re- analysed through the Central Laboratory, but the accused himself after appearing in the court did not apply and avail the benefit of the provisions of Section 13(2) of the Act, thus, he is not entitled to derive any benefit from his own wrong." 10 Faced with the above situation, learned counsel appearing for the petitioner has sought indulgence of this Court in the sentence by extending some leniency towards the petitioner keeping in view the longevity of the proceedings and that he has undergone about four months of the substantive sentence. 11 The occurrence in this case took place in May 1998; the accused has already undergone about four months of the substantive sentence and has also suffered a lot of agony due to protracted proceedings for the last about 12 years. That apart, no bad antecedents of the petitioner have been brought on record, so as to dub him as habitual offender. In such circumstances, it would be in the fitness of things, if the sentence of imprisonment is reduced to that already undergone by enhancing the fine to Rs. 10,000/-. Ordered accordingly. However, the default clause in case of nonpayment of fine shall remain intact. 12 Copy of the judgment be sent to the Chief Judicial Magistrate, Khurukshetra for compliance.