Punjab-Haryana High Court
The State Of Punjab vs Subhash Chander on 27 August, 2003
Equivalent citations: 2004CRILJ416
Author: V.M. Jain
Bench: V.M. Jain
JUDGMENT V.M. Jain, J.
1. This appeal has been filed by the State of Punjab, against the order dated 21-1-1993 passed by the Chief Judicial Magistrate, Gurdaspur, acquitting the accused-respondent of the charge under Section 16(1)(a)(i) of the Prevention of Food Adulteration Act, 1954 (hereinafter to be referred as the Act).
2. The facts which are relevant for the decision of the present appeal are that on 14-7-1987, Dr. Hardeep Singh Bajwa, Food Inspector along with the team of other doctors had visited the shop of accused Subhash Chander and found him in possession of 12 Kgs Saunf in a gunny bag for public sale and human consumption. Dr. Hardeep Singh Bajwa after disclosing his identity and after serving him notice purchased 600 grams of Saunf from accused Subhash Chander after mixing it, for Rs. 9.60 and the said Saunf so purchased was divided into three equal parts and the same were sealed as per the rules and one part of the sample was sent to the Public Analyst, Punjab, Chandigarh along with memo in Form VI through special messenger. On receipt of the report of the Public Analyst that the sample contained three rodent excreta, the Food Inspector filed complaint in the court of Chief Judicial Magistrate. The accused was summoned and after recording pre-charge evidence, charge under Section 16(1)(a)(i) of the Act, was framed against him, to which he pleaded not guilty and claimed to be tried and thereafter, the complainant examined PW-1- Dr. Hardeep Singh Bajwa and PW-2 Balwant Singh, Junior Assistant besides tendering affidavit Exhibit -PK of Mehnga Ram. The statement of the accused under Section 313 Cr. P. C. was recorded in which he denied the prosecution allegations against him. He stated that he was innocent and had been falsely implicated in this case. However, he did not produce any evidence in his defence.
3. The learned Chief Judicial Magistrate, after hearing both sides and perusing the record, acquitted the accused-respondent of the charge framed against him. Aggrieved against the same, State of Punjab filed the present appeal in this Court.
4. I have heard the learned counsel for the parties and have gone through the record carefully.
5. The learned counsel appearing for the State of Punjab, submitted before me that the learned Magistrate erred in law in acquitting the accused-respondent of the charge framed against him, placing reliance on the law laid down by this Court in the case of Satish Kumar v. State of Haryana (1989) 1 Rec. Cri R. 613 :(1989 Cri LJ 2224) and the law laid down by the Hon'ble Supreme Court in the case of State (Delhi Administration) v. Puran Mal AIR 1985 SC 741 : (1985 Cri LJ 921). Reliance was placed on the law laid down by the Hon'ble Supreme Court in the case of Municipal Corporation of Delhi v. Tek Chand Bhatia AIR 1980 SC 360 : (1980 Cri LJ 316).
6. There is considerable force in this submission made by the learned counsel for the State of Punjab. In the present case, the sample taken was of Saunf (whole). Item A. 05.11 of the Appendix 'B' to the Prevention of Food Adulteration rules reads as under :
"A. 05.11 -- FENNEL (Saunf) WHOLE means the dried ripe fruits of Foeiniculum vulgare Mill, the proportion of extraneous matter including dust, dirt, stone, lumps of earth, chaff, stem or straw shall not exceed 5.0 per cent by weight. The proportion of edible seeds other than fennel shall not exceed 5.0 per cent by weight, (the amount of insect damaged matter shall not exceed 5 per cent by weight (It shall be free from added colouring matter).
Explanation . -- The term 'insect damaged matter' means spices that are partially or wholly bored by insects).
7. From the perusal of the above, it would be clear that Saunf should not have any rodent excreta in any quantity, if rodent excreta is found in the sample, it would come within the definition of adulterated, as given in Section 2(i-a)(f) of the Act. In (1989) 1 Rec. Cri R 613 : (1989 Cri LJ 2224) (supra), this Court was dealing with the sample of Chana Dal. 600 gms of Chana Dal had been taken by way of sample and was divided into three parts and one part of the sample was sent to the Public Analyst, who had found the sample to be adulterated. The accused had exercised his right under Section 13 of the Act and second part of the sample was sent to the Director, Central Food Laboratory, who had found the presence of two dead insects and four rodent excreta, in the entire sample. This Court while considering the said report of the Director, Central Food Laboratory, found that in the case of foodgrains meant for human consumption, there could be rodent hair and excreta which shall not exceed 5 pieces per kilogram of the sample and the amount of weevilled grains (by count) shall not be more than 10% per kilogram of the samples. It was also found that the amount of weevilled grains could not exceed 10%. It was found that in the said case the opinion of the Director did not show that the amount of weevilled grains (by count) was more than 10% and as such the certificate was deficient as to the percentage of the weevilled grains in the whole lot with regard to rodent excreta. It was found that the prescribed standard envisages tolerance limit of 5 whole pieces per Kilogram of the sample and one whole piece of rodent excreta when crushed may go upto more than 5 pieces and as such the presence of four rodent excreta in 200 gms of sample (without specifying as to whether these were whole or crushed) would not be beyond the permissible limits in respect of a foodgrain meant for human consumption. It was also found that the Director in his report had also not specified that the samples were unfit for human consumption. Reliance in this regard was placed on the law laid down by the Hon'ble Supreme Court in the case of State v. Puran Man : (1985 Cri LJ 921) (supra).
8. So far as the presence of rodent excreta is concerned, in my opinion, the law laid down by this Court in the case of Satish Kumar v. State of Haryana (1989 Cri LJ 2224) (supra) would have no application to the facts of the present case, inasmuch as in respect of the foodgrains some amount of rodent excreta was permissible. However, in the case of Saunf, rodent excreta is not permissible to any extent. In this view of the matter, the law laid down by this Court in the case of Satish Kumar v. State of Haryana (supra), in my opinion, would have no application to the facts of the present case in respect of the presence of the rodent excreta. With regard to the non-mentioning by the Director that the sample was unfit for human consumption, in my opinion, the law is well settled by the Hon'ble Supreme Court in the case of Municipal Corporation Delhi v. Tek Chand Bhatia (1980 Cri LJ 316) (supra), wherein it was held that on the plane language of the definition of the word adulterated, it was apparent that the words or is otherwise unfit for human consumption are disjunctive of the rest of the words preceding them and it relates to a distinct and separate class altogether. It was further held that if the phrase is to be read disjunctively the mere proof of the article of food being filthy, putrid, rotten, decomposed ..... or insect-infested, would be per se sufficient to bring the case within the purview of the word 'adulterated' as defined in Sub-clause (f) and it would not be necessary in such a case to prove further that the article of food was unfit for human consumption. It was further held in the said authority that in the definition clause, the collection of words 'filthy, putrid, rotten, decomposed and insect-infested' which are adjectives qualifying the term 'an article of food' show that it is not of the nature, substance and quality fit for human consumption. It was further held that there was comma after each of the first three words and as such these qualifying adjectives cannot be read into the last portion of the definition i.e. the words or is otherwise unfit for human consumption, which is quite separate and distinct from others. It was held that the word 'otherwise' signify unfitness for human consumption due to other causes.
9. In view of the law laid down by the Hon'ble Supreme Court in the case of Municipal Corporation Delhi v. Tek Chand Bhatia (1980 Cri LJ 316) (supra), in my opinion, it would be clear that the accused-respondent could not be acquitted only on the ground that the Public Analyst report had not stated that the Saunf was otherwise unfit for human consumption. The law laid down by the Hon'ble Supreme Court in AIR 1985 SC 741 : (1985 Cri LJ 921) (supra) would have no application to the facts of the present case, especially when one of the Hon'ble Judges in the said Judgment had held that it would not be necessary to prove further that the article of food was unfit for human consumption, as laid down in the case of Municipal Corporation Delhi v. Tek Chand (supra).
10. In view of the above, in my opinion, the learned Magistrate, had erred in law in acquitting the accused-respondent of the charge framed against him on the grounds referred to above. However, this court is required to consider as to whether on the evidence available on the record, any case is made out for holding the accused guilty in this case or the accused had been rightly acquitted may be on a different ground.
11. Under Section 16A of the Act, it is provided that all offences under Section 16(1) of the Act shall be tried in a summary way by a Judicial Magistrate and the provisions of Sections 262 and 263 of the Code shall apply to such trial. It is provided therein that in case of any conviction in a summary trial under this section, it shall be lawful for the Magistrate to pass a sentence of imprisonment for a term not exceeding one year. It is further provided that when at the commencement of, or in the course of a summary trial under this Section, it appears to the Magistrate that the nature of the case is such that a sentence of imprisonment for a term exceeding one year may have to be passed, the Magistrate shall after hearing the parties, record an order to that effect and shall proceed to hear the case in the manner provided by the Code of Criminal Procedure. In the present case, in respect of the provisions of Section 16A of the Act, the learned Magistrate had tried the present case not in a summary way but otherwise. In this case instead of serving notice of accusation upon the accused, the learned Magistrate had framed charge against him. In fact pre-charge evidence was recorded. Thereafter, after framing of charge, further evidence was recorded and it was thereafter that the order of acquittal was passed by the learned Magistrate. This procedure, which was followed by the learned Magistrate, is the procedure meant for trials of warrant cases by Magistrate as provided in the Code of Criminal Procedure. In this view of the matter, the entire procedure adopted by the learned Magistrate was contrary to the mandatory provisions of Section 16A of the Act, especially when no mention was made by the learned Magistrate, at any stage of the trial that the nature of the case was such that it was undesirable to try the case summarily. In this view of the matter, in my opinion, the entire procedure adopted by the learned Magistrate in this case was contrary to provisions of Section 16A of the Act and the law laid down by this Court. Reference in this regard may be made to the cases of Ram Niwas v. State of haryana (1992) 3 Rec Cri Re 367, P.N. Mathur v. State of Haryana (1991) 3 Rec Cri Re 79, Ramesh Kumar v. State of Haryana (1991)2 Rec Cri R 87 and Deepak Kumar v. State of Haryana (1994)1 Rec Cri Re 92.
12. There is another aspect of the matter which also requires consideration. The only evidence available on the record with regard to the taking of the sample from the accused is the statement of PW-1 Dr. Hardeep Singh Bajwa, the then Government Food Inspector, which was recorded before the framing of charge and after the framing of charge. There is no other evidence available on the record to connect the accused with the crime. The other witness, namely, Tilak Raj, an independent witness, was not examined by the complainant and the complainant had closed its evidence. So far as PW-2 Balwant Singh, Junior Assistant, is concerned, his evidence would be of no relevance with regard to the taking of sample from the accused-respondent. Similar would be the position in respect of the affidavit Exhibit-PK of Mehnga Ram, which was tendered in evidence. There is absolutely no corroboration to the testimony of Dr. Hardeep Singh Bajwa with regard to the taking of the sample from the possession of the accused -respondent, as per the requirements of law. In my opinion, it would not be safe to hold the accused guilty in this case in the light of evidence led by the complainant.
13. Taking into consideration that the sample was taken on 14-7-1987 and more than 16 years have passed since then, in my opinion, it would not be appropriate to remand the case to the trial Court for deciding it afresh after following the procedure laid down under Section 16A of the Act.
14. For the reasons recorded above, the acquittal of the respondent has to be upheld, though on a different ground. Resultantly, finding no merit in this appeal, the same is hereby dismissed.