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2012 DIGILAW 641 (PNJ)

Balwinder v. State of Haryana

2012-04-27

RITU BAHRI

body2012
JUDGMENT RITU BAHRI, J. The present revision petition is against the judgment dated 03.03.2012 passed by the learned Sessions Judge, Kaithal and judgment dated 26.04.2010 passed by the Chief Judicial Magistrate, Kaithal whereby petitioner was having found to be in possession of primary food article i.e. Ghee for public sale contained in aluminum. Petitioner was convicted under Section 16(g)(i) of the Prevention of Food Adulteration Act and was sentenced to undergo rigorous imprisonment for a period of six months and to pay fine of Rs. 1000/-, in default of payment of fine accused was further directed to undergo simple imprisonment for a period of ten days. RespondentNo.2/complainant-Government Food Inspector, has filed a complaint against the accused/petitioner on the allegations that the complainant was Govt. Food Inspector appointed vide notification dated 01.04.1994 and on 19.08.2003 at 10 A.M. The complainant inspected the premises of Balwinder Singh accused/petitioner wherein he was found having 20 kgs of Ghee for public sale in aluminum container. A notice was given in writing on Form VI (Ex.PA) prescribed under the Prevention of Food Adulteration Rules, 1955 (for short 'PFA Rules'). 600 grams of ghee was purchased against the payment of Rs. 84 vide receipt (Ex.PC) for the purpose of analysis in the presence of witness. The sample was taken after making the ghee homogeneous and uniform. The sample was divided into three equal parts and then bottled in three dry, clean and empty bottles. Bottles were stoppered tightly, labeled and then wrapped in a strong thick paper and a paper slip issued by Local Health Authority, Kaithal bearing code No. KAT-DH/FH/FI-2/276 was affixed on each bottle. Signatures of the accused were obtained in such a manner that both the paper slip and the wrapper of the sealed sample carry a party of his signatures. One sealed bottle along with memorandum in Form VII was sent to Public Analyst, Haryana Chandigarh on 20.08.203. The other two sealed bottles of sample were deposited with the Local Health Authority, Kaithal. Sample, which were sent to Public Analyst, Haryana Chandigarh and report of the Analyst shows that sample does not confirm to the prescribed standard of ghee as laid down under item No. A.11.02.21 of PFA Rules. On this complaint, the accused/petitioner was summoned and after recording pre charge evidence, the accused was chargesheeted under Section 7 of the Act to which petitioner/accused did not plead guilty and claimed trial. On this complaint, the accused/petitioner was summoned and after recording pre charge evidence, the accused was chargesheeted under Section 7 of the Act to which petitioner/accused did not plead guilty and claimed trial. The report of the Public Analyst was given to the accused/petitioner to enable him to get the same retested. The second sample was also sent to Central Food Laboratory, Mysore for re-analysis and the report Ex.PG was received, whereby boudouin test was found to be positive, Butyre-refractometer reading at 40 C. was found to be 47.4 and free fatty acid was found to be 8.2 against maximum limit of 3%. No defence evidence was led by the accused despite availing sufficient opportunities. The trial accepted the report of the Public Analyst and held that the Ghee was adulterated. Feeling aggrieved, the petitioner/accused filed the appeal against the judgment 26.04.2010 passed by the Chief Judicial Magistrate, Kaithal. The main ground in the appeal was that the ghee was heated before taking the sample. However, it has been mentioned in the judgment that even if ghee would have been heated, the ground level reality was not going to be changed as sesame oil is not a constituent element of Desi Ghee though it is a constituent of Vanaspati Ghee. Learned counsel for the petitioner does not challenge the order of conviction on merits. Learned counsel for the petitioner, however, further contends that the occurrence in this case pertains to the year 2003 and a period of 9 years have already gone by. Petitioner has already suffered the agony of protracted trial, spinning over a period of more than one decade. Petitioner has already undergone the sentence for 01 month and 27 days, as per custody certificate dated 26.04.2012. No other case is pending against him. Learned counsel for the petitioner restricts his prayer for the grant of Probation to the petitioner under the Probation of Offenders Act. The petitioner has not committed any offence for the last 09 years. The petitioner is a first time offender and even now he has left the business of selling the ghee. The petitioner has huge responsibility of his own family members and also of his old aged parents. In Ramesh Chand alias Ramesh Kumar vs State of Haryana 2005 Criminal Law Journal (1569), it has been held as under:- “19. The petitioner is a first time offender and even now he has left the business of selling the ghee. The petitioner has huge responsibility of his own family members and also of his old aged parents. In Ramesh Chand alias Ramesh Kumar vs State of Haryana 2005 Criminal Law Journal (1569), 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.” Similar view has been taken by a Coordinate Bench of this Court in the cases of Satish Kumar vs. Union Territory, Chandigarh, 2009(3) R.C.R (Criminal) 325 and Jai Bhagwan vs. State of Haryana, 2008(4) AICLR 539. Taking totality of circumstances into consideration, it will be just to release the petitioner on probation under Probation of Offenders Act. He will furnish bail bonds to the satisfaction of Chief Judicial Magistrate, Kaithal. However, sentence of fine is enhanced to Rs. 5000/- and the same shall be converted as cost of litigation. Non payment of fine will render the present revision petition as dismissed. With these observations, present revision petition is disposed of.