Punjab-Haryana High Court
Kishan vs State Of Haryana And Another on 16 April, 2012
Author: Ritu Bahri
Bench: Ritu Bahri
Crl. Revn. No. 933 of 2012 (O&M) -1-
IN THE HIGH COURT OF PUNJAB & HARYANA
AT CHANDIGARH
Crl. Revn No. 933 of 2012 (O&M)
Date of decision : 16.04.2012
Kishan ......Petitioner
versus
State of Haryana and another ...Respondents
CORAM: HON'BLE MS. JUSTICE RITU BAHRI
Present: Mr. Sandeep Kotla, Advocate
for the petitioner
Mr. Shivendra Swaroop, AAG, Haryana
1. To be referred to the Reporters or not?
2. Whether the judgment should be reported in the Digest?
RITU BAHRI , J.
The present revision petition is against the judgment dated 16.03.2012 passed by the learned Additional Sessions Judge, Hisar and judgment dated 13.03.2008 passed by the Chief Judicial Magistrate, Hisar whereby petitioner was having found to be in possession of primary food article i.e Ghee for public sale contained in a tin which was adulterated within the meaning of Section 2 (i-m) of the Prevention of Food Adulteration Act, 1954 (for short 'the PFA'). Petitioner was convicted under Section 16(a)(i) of the PFA and was sentenced with rigorous imprisonment for a period of six months and Crl. Revn. No. 933 of 2012 (O&M) -2- to pay fine of Rs. 1000/-, in default of payment of fine accused was further directed to undergo simple imprisonment for a period of one month.
RespondentNo.2/complainant-Government Food Inspector, Hisar has filed a complaint against the accused/petitioner on the ground that he alongwith Dr. Jugal Kishore inspected the premises of accused/petitioner on 10.08.2000 at 12.30 P.M and found the accused having in his possession of about 3 kg of ghee for public sale contained in a tin. A notice was given in writing on Form VI prescribed under the Prevention of Food Adulteration Rules, 1955 (for short 'PFA Rules'). 450 grams of ghee was purchased after mixing the whole contents properly for a cost of Rs. 40/- and the same was divided into three equal parts and then bottled in three dry, clean and empty bottles. Bottles were stoppered tightly and sealed on the neck with the seal of Medical Officer. A paper slip bearing Code No. HIR/CS-FIII, Serial No. 1670 of Local Health Authority, Hisar was pasted with gum on each bottles from top to bottom. Signature of accused were obtained. One sealed bottle along with memorandum in Form VII was sent to Public Analyst, Haryana Chandigarh. The other two sealed bottles of sample along with two copies of memo in Form VII were deposited with the Local Health Authority, Hisar at 11.08.2000. Sample Crl. Revn. No. 933 of 2012 (O&M) -3- were sent to Public Analyst, Haryana Chandigarh and report of the Analst shows that sample does not confirm to the prescribed standard of ghee as laid down under item No. A.11.01.21 of PFA Rules.
On this complaint, the accused/petitioner was summoned and after recording pre charge evidence of Ajmer Singh, the then Food Inspector, the accused was charge-sheeted under Section 7 read with Section (1)(a)(i) of the PFA 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 re- tested but the accused has not exercised his option to get the second sample re-tested. The report was sent to the accused through registered post and postal receipt (ExPW3/B) is the sufficient enough to establish compliance of Section 13(2) of the PFA. The trial accepted the report of the Public Analyst and held that the Ghee was adulterated within the meaning of Section 2 (i-m) of the PFA.
Feeling aggrieved, the petitioner/accused filed the appeal against the judgment dated 13.03.2008 passed by the Chief Judicial Magistrate, Hisar. The main ground in the appeal was that accused/petitioner has been involved in three cases at the same time. Out of three case, the petitioner has been acquitted in two cases, so he cannot be tried for the same offence. This argument has been Crl. Revn. No. 933 of 2012 (O&M) -4- rejected by the lower Appellate Court on the ground that in the present case sample was taken separately from Ghee which was kept for sale by the accused in his premises and prosecution has proved its case by producing cogent evidence that Ghee was found adulterated.
Learned counsel for the petitioner does not challenge the order of conviction on merits as the petitioner had not chosen to get the sample retested second time despite given a notice and report of the Public Analyst (Ex. PF).
Learned counsel for the petitioner, however, further contends that the occurrence in this case pertains to the year 2000 and a period of 12 years has 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 1 month, as per custody certificate dated 15.04.2012. 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 12 years. He is sole bread earner of his family and has sufficient responsibility towards his family.
In Ramesh Chand alias Ramesh Kumar vs State of Crl. Revn. No. 933 of 2012 (O&M) -5- 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 Crl. Revn. No. 933 of 2012 (O&M) -6- Judicial Magistrate, Hisar. 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.
(RITU BAHRI) JUDGE April 16, 2012 G.Arora