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2012 DIGILAW 139 (HP)

Ram Chand v. State of Himachal Pradesh

2012-03-28

KULDIP SINGH

body2012
JUDGEMENT Kuldip Singh , Judge (Oral). This revision has been directed against the judgment dated 14.12.2005 passed by learned Additional Sessions Judge, Solan, in Criminal Appeal No. 1-K/10 of 2005, affirming judgment dated 28.03.2005 passed by learned Judicial Magistrate Ist Class, Kandaghat, Camp at Solan, in Criminal Case No. 35/3 of 02/96. 2. The facts, in brief, are that PW-2 S.N.Sharma, Food Inspector, intercepted petitioner on 26.07.1995 at about 8.45 a.m. The petitioner disclosed his name and address as Harbans Singh, son of Dayal Singh, Village and Post Office Nanakpur, Tehsil Kalka. Later on, it was found that the correct name and address of the petitioner is Ram Chand, son of Ram Krishan, dairy owner, Burawalla, Post Office Barotiwala, Tehsil Kasauli, District Solan,H.P. PW-2 associated one Ravinder as a witness and issued notice Ex. PW1/B in form VI to petitioner declaring his intention to take sample of mixed milk which was in possession of the petitioner in a drum about 40 Kg which was meant for sale. The contents of the milk were properly mixed with a measure. PW-2 purchased 750 ml. mixed milk against payment of ‘5/- as a sample for analysis. The petitioner duly acknowledged the same as per receipt Ex. P-2. 3. The milk so purchased was put into three neat, clean and dry bottles equally, drops of formaline were added into each bottle as preservative, labels as prescribed were affixed on the bottles, which were wrapped in a thick paper, a paper slip bearing signatures and Code/ Serial No. SLN/s/101/95 of the Local Health Authority, Solan, was affixed on each bottle. The signatures of petitioner were obtained on these bottles. The bottles were further tied with strong thread and were sealed. A ‘Panchnama’ Ex. P-4 was prepared which was signed by petitioner and witness. 4. The sample along with form VII was sent in a sealed packet to Public Analyst, Kandaghat. A copy of form VII along with specimen seal impression was sent separately to Public Analyst, Kandaghat, in a sealed envelope. The remaining two parts of the sample along with two copies of the form VII and specimen seal impression were deposited with the Local Health Authority, Solan, in sealed packet. 5. A copy of form VII along with specimen seal impression was sent separately to Public Analyst, Kandaghat, in a sealed envelope. The remaining two parts of the sample along with two copies of the form VII and specimen seal impression were deposited with the Local Health Authority, Solan, in sealed packet. 5. The report of Public Analyst, Kandaghat, received through Local Health Authority, Solan, and the sample was found adulterated inasmuch as the contents of sample in respect of the milk fat was 0.4% against the minimum prescribed standard of 4.5% and in respect of milk solids not fat 4.08% against the minimum prescribed standard of 8.5%. 6. The complainant moved an application to the Chief Medical Officer, Solan, for sanction to launch prosecution against the petitioner. The Chief Medical Officer accorded requisite sanction. Thereafter, PW-2 filed complaint alleging that petitioner has committed an offence punishable under Section 16(1)(a)(i), Section 7(i) read with Section 2(ia) (m) of the Prevention of Food Adulteration Act, 1954, ( for short ‘the Act’). 7. The Local Health Authority,Solan, was separately intimated regarding institution of the case for further action under Section 13(2) read with Rule 9 (a) of the Act. The petitioner was summoned. The notice of accusation was put to the petitioner. He pleaded not guilty and claimed trial. The prosecution has examined 3 witnesses. The Statement of petitioner was recorded under Section 313 Cr.P.C, he examined DW-1 Harabans Lal Mehta in defence. On conclusion of trial, the Judicial Magistrate on 28.03.2005 convicted the petitioner for an offence punishable under Section 16(1)(a)(i), Section 7(i) read with Section 2(ia) (m) of the Act and sentenced him to undergo rigorous imprisonment for six months and pay a fine of ‘1 ,000/- with default clause. The learned Additional Sessions Judge on 14.12.2005 affirmed the judgment dated 28.03.2005, hence revision. 8. I have heard Mr. Ramakant Sharma, Advocate, for the petitioner and learned Assistant Advocate General for the State and have also gone through the record. It has been submitted by learned counsel for the petitioner that the sample of milk was not drawn properly inasmuch as milk was not stirred and made homogeneous before taking the sample. There is non-compliance of Section 13(2) of the Act and the Rules framed thereunder. It has been submitted that in form VI Ex. P-1 and ‘Panchnama’ Ex. It has been submitted by learned counsel for the petitioner that the sample of milk was not drawn properly inasmuch as milk was not stirred and made homogeneous before taking the sample. There is non-compliance of Section 13(2) of the Act and the Rules framed thereunder. It has been submitted that in form VI Ex. P-1 and ‘Panchnama’ Ex. P-4, the name and address of the person from whom the sample was taken, has been shown Harbans Singh, son of Dayal Singh, whereas, petitioner is Ram Chand, son of Ram Krishan. The address given in Ex. P-1 and Ex. P-4 of the person from whom the sample has been taken is different from the address given in notice under Section 13(2) Ex. PW1/B of the Act. The Independent witness Ravinder has not been examined despite opportunities given to the complainant and ultimately his evidence was closed by the Court. It has been submitted that the sentence imposed is harsh. A submission has been made for acceptance of the revision. 9. The learned Assistant Advocate General has supported the impugned judgment. He has submitted that in revision the scope is limited. The two Courts below have appreciated the evidence on record. There is no violation of the Act or Rules. The petitioner tried to hoodwink the authorities and gave his different descriptions, but ultimately it has been established on record that petitioner is the person from whom the sample was taken. The statement of Food Inspector is enough to prove the case of the prosecution. In the facts and circumstances of the case, no adverse inference can be drawn against the prosecution for not examining Ravinder. He has prayed for dismissal of the revision. 10. In order to appreciate the contentions raised on either side, it is necessary to refer to evidence which has come on record. PW-1 Chatter Singh was the Dealing Assistant of Local Health Authority/C.M.O., Solan at the relevant time. He has stated that complaint against the petitioner was filed on 05.02.1996 in the Court. On receipt of information Ex. PW1/A from Food Inspector a notice Ex. PW1/B under Section 13(2) of the Act was sent under registered cover to the petitioner vide postal receipt Ex. PW1/C. On the envelope the same address was mentioned as has been given in the notice Ex. PW1/B. The registered letter was not returned to the Office of Local Health Authority. PW1/A from Food Inspector a notice Ex. PW1/B under Section 13(2) of the Act was sent under registered cover to the petitioner vide postal receipt Ex. PW1/C. On the envelope the same address was mentioned as has been given in the notice Ex. PW1/B. The registered letter was not returned to the Office of Local Health Authority. He has proved sanction Ex. PW1/E. 11. PW-2 S.N. Sharma has stated that on 26.07.1995 at about 8.45 a.m., he met Harbans Singh alias Ram Chand present in the Court, who was carrying 40 Kg mixed milk for sale, who disclosed his identity. Ravinder Singh witness was also present. Notice Ex. P-1 was given to the petitioner and after stirring the milk properly, 750 ml. milk on payment of ‘5/- vide receipt Ex. P-2 for purposes of sample was purchased from the petitioner. The sampling and sealing were done on the spot by dividing the sample and putting the milk in three dry bottles. ‘Panchnama’ Ex. P-4 was prepared on the spot which bears the signatures of petitioner and witness. A part of the sample was sent to C.T.L., Kandaghat for analysis. The report of Public Analyst Ex. P-8 was received vide letter Ex. P-9 of Local Health Authority and the sample was found adulterated. Sanction was obtained from the C.M.O., Solan and thereafter complaint was filed in the Court. He was cross-examined at length, but in the cross-examination nothing favourable to the petitioner was extracted. DW-1 Harbans Lal Mehta has been examined by petitioner in defence. DW-1 has proved Ex. DW1/A,Ex. DW2/A, Ex. DX, Ex. DW1/C. 12. PW-2 S.N.Sharma has stated that petitioner was carrying 40 Kg mixed milk in a drum. The milk was stirred. In cross- examination, he has stated that drum was about 4 feet which was almost full except 8-9 inches. The milk was stirred with measure which was about 9 inch. In ‘Panchnama’ Ex. P-4, it has been stated that milk was stirred with measure properly and thereafter 750 ml. milk was purchased. Exhibit P-4 bears the signatures of petitioner which he has signed as Harbans Singh. The petitioner in his statement under Section 313 Cr.P.C. has not disputed the contents of ‘Panchnama’. The petitioner has taken the defence that no sample was taken from him and his name is Ram Chand and not Harbans. milk was purchased. Exhibit P-4 bears the signatures of petitioner which he has signed as Harbans Singh. The petitioner in his statement under Section 313 Cr.P.C. has not disputed the contents of ‘Panchnama’. The petitioner has taken the defence that no sample was taken from him and his name is Ram Chand and not Harbans. It has been proved on record that sample was taken by PW-2 after stirring the milk and making it homogeneous. The contention of the learned counsel for the petitioner that sample was not taken by stirring the milk properly and by making it homogeneous is rejected. 13. It has been submitted on behalf of the petitioner that there is non-compliance of Section 13(2) of the Act. The name and address of the petitioner shown in form VI Ex.P-1, ‘Panchnama’ Ex. P-4 is different from name shown in notice Ex. PW1/B under Section 13(2) of the Act. It appears the petitioner tried to hoodwink the authorities initially by giving incomplete name and address. The petitioner at the time of taking sample disclosed his name Harbans son of Dayal Singh, Village and Post Office Nanakpur,Tehsil Kalka, Haryana. But, lateron, authorities found that his correct name and address is Harbans Singh alias Ram Chand son of Ram Krishan, dairy owner, Village Burawalla, Post Office Barotiwala,District Solan and, therefore notice under Section 13(2) Ex. PW1/B was sent to petitioner on the address mentioned in notice Ex. PW1/B. The notice of accusation was put to petitioner on 12.12.1997 and at that time his statement was recorded describing him as Harbans Singh alias Ram Chand son of Ram Krishan, owner of dairy, Village Burawalla, Post Office Barotiwala, Tehsil Kasauli, Distt. Solan. The petitioner signed notice of accusation by putting his signatures as Ram Chand. The petitioner at that time did not dispute that his alias name is not Harbans Singh. 14. PW-1 Chatter Singh has stated that notice Ex. PW1/B was sent to petitioner on the address mentioned on notice Ex. PW1/B. The notice was sent under registered post and registered letter was not returned to the Local Health Authority Office undelivered. Therefore, it can be safely presumed that notice Ex. PW1/B was delivered to the addressee. The petitioner was convicted by the trial Court on 28.03.2005. The petitioner through his counsel filed an application for suspension of sentence which is at page 77 of the trial Court file. Therefore, it can be safely presumed that notice Ex. PW1/B was delivered to the addressee. The petitioner was convicted by the trial Court on 28.03.2005. The petitioner through his counsel filed an application for suspension of sentence which is at page 77 of the trial Court file. The trial Court suspended the substantive sentence of the petitioner on 28.03.2005 with the direction to deposit fine within 7 days and furnish personal and surety bonds of ‘5,000/-. The petitioner furnished personal bond on 28.03.2005 which is at page 78 of the lower Court file. In the personal bond, the petitioner has described himself as Harbans Singh son of Ram Krishan, Village Burawalla, Post Office Barotiwala, Tehsil Kasauli, Distict Solan,H.P. The personal bond has been signed by petitioner as Ram Chand. The description given by the petitioner in the personal bond dated 28.03.2005 tallies with the description of the petitioner given in notice Ex. PW1/B and the description of petitioner given in the complaint which according to PW-2 was found to be the correct name and address of the petitioner. This establishes that petitioner wanted to mislead the authorities by giving wrong description about himself when sample was taken from him. PW-2 identified the petitioner in the Court. It is not the case of the petitioner that petitioner was not known to PW-2 or it is a case of mistaken identity. In the cross- examination of PW-2, it is not the case of the petitioner that no sample of milk was taken from him. 15. The identity of the petitioner has been fully connected with the person from whom sample of mixed milk was taken by PW-2 on 26.07.1995. The compliance of Section 13(2) of the Act has been challenged by the petitioner only on the ground of identity and address of the petitioner. But, it has been proved on record that not only identity of the petitioner has been established but the notice under Section 13(2) of the Act was sent to the petitioner on his correct address. 16. It has been lastly contended that independent witness Ravinder has not been examined and, therefore, submission has been made for drawing adverse inference against the respondent. On 18.12.2003 the trial Court closed the evidence of the prosecution. 16. It has been lastly contended that independent witness Ravinder has not been examined and, therefore, submission has been made for drawing adverse inference against the respondent. On 18.12.2003 the trial Court closed the evidence of the prosecution. It has come in the order dated 18.12.2003 that Food Inspector stated in the Court that despite all possible efforts, she could not trace the correct address of the witness. The address of witness Ravinder has been given in the complaint itself. He was not served on that address. The record of the trial Court reveals that several attempts were made for serving witness Ravinder, but he could not be served and ultimately the evidence of the prosecution was closed by the Court. In these circumstances, it cannot be said that prosecution intentionally did not produce and examine ‘Panch’ witness Ravinder. PW-2 Food Inspector has been examined. He has supported the case of the prosecution. There are no personal allegations against the Food Inspector. The taking of the sample by the Food Inspector has not been denied, what has been denied is the identity of the vendor. There is no reason to believe that PW-2 did not know the petitioner. It has already been held above that milk was purchased by PW-2 from petitioner. 17. The Supreme Court in State of U.P. Versus Hanif (1992) 3 SCC 100 has held that it is not the law that the evidence of the Food Inspector must necessarily need corroboration from independent witnesses. The evidence of the Food Inspector is not inherently suspect, nor can be rejected on that ground. He discharges the public function in purchasing an article of food for analysis and if the article of food so purchased in the manner prescribed under the Act is found adulterated, he is required to take action as per law. He discharges public duty. His evidence is to be tested on its own merits and if found acceptable, the Court would be entitled to accept and rely on to prove the prosecution case. 18.There is no inherent defect in the statement of Food Inspector. The prosecution made several attempts to serve ‘Panch’ witness Ravinder, but he could not be served. In these circumstances, no 10 adverse inference can be drawn against the prosecution for not examining Ravinder. 18.There is no inherent defect in the statement of Food Inspector. The prosecution made several attempts to serve ‘Panch’ witness Ravinder, but he could not be served. In these circumstances, no 10 adverse inference can be drawn against the prosecution for not examining Ravinder. The two Courts below on the basis of evidence on record recorded a finding of fact against the petitioner which is not perverse. The scope in revision is narrow. The sentence imposed is also not on the higher side. There is no merit in the revision. 19.In view of above, the revision is dismissed. The bail bonds of the petitioner are cancelled. The petitioner is directed to surrender to serve out the sentence imposed.