Punjab-Haryana High Court
Lakhi Ram vs State Of Haryana on 16 September, 1998
Equivalent citations: 1999CRILJ792
Author: M.L. Singhal
Bench: M.L. Singhal
ORDER
1. On 15-7-1985 at about 12.30 PM Shri Sube Singh, Govt. Food Inspector along with Dr. J. P. Chaudhary, Medical Officer inspected the business premises of Lakhi Ram (petitioner-herein) at bus stand Chhuchhak was. It was karyana store. At that time, Raj Kumar PW was also with them. 10 Kilograms of maida was found in a gunny bag in the shop which was meant for sale to the public. Shri Sube Singh disclosed his identity to Lakhi Ram that he was Food Inspector authorised to seize samples of food stuff meant for sale from their vendors with a view to have them analysed. He served notice Ex. PA upon Lakhi Ram and asked him to supply 600 grams of maida on receipt of necessary price from him. Notice Ex. PA signed by Lakhi Ram was attested by the PWs. Lakhi Ram supplied 600 grams of maida to Shri Sube Singh on receipt of Rs. 1.50 from him vide receipt Ex. PB signed by him and attested by the PWs. Spot memo EX. PC was prepared at the spot showing entire proceedings taken at the spot. Shri Sub Singh divided the quantity of maida in 3 equal parts. He put each of those parts in dry and clean bottles. Bottles were made into sealed parcels in compliance with the procedure laid down in the Prevention of Food Adulteration Rules, 1955. One sealed bottle was sent to the public Analyst, Haryana, Chandigarh along with memorandum in Form VII in a sealed cover by railway parcel. The other two sealed bottles along with 2 copies of memos in form VII, bearing seal impression, were handed over to the local health authority on 16-7-85. A copy of the memo and the specimen of the seal used to seal the bag was sent to Public Analyst, Haryana, Chandigarh separately by registered post. Public Analyst, Haryana found that the sample was containing 19 living weevils and 100 living meal worms. On the receipt of the report of the public Analyst, complaint was instituted by the Food Inspector against the accused under section 16(1)(a)(i)/7 of the Prevention of Food Adulteration Act, 1954. At the request of the accused other part of the sample was sent to the Director, General Food Laboratory, Ghaziabad for analysis who vide report Ex. PF found that the sample was not free living and dead insects and insect larvae. Sample was found not conforming to the standard of maida laid down in item A. 18.02 of Prevention of Food Adulteration Rules, 1955 in that gluten content was less than the minimum prescribed limit and alcoholic acidity was above the maximum prescribed limit. Accused was charged under section 16(1)(a)(i)/7 of the Act. Accused pleaded not guilty to the charge and claimed trial.
2. On the conclusion of the trial, Judicial Magistrate First Class, Jhajjar found the charge proved against the accused, convicted him thereunder and sentenced him to undergo RI for 6 months and to pay fine of Rs. 1,00,000, in default of payment of fine to undergo further RI for a period of 3 months vide order dated 25-4-87. Aggrieved from his conviction and sentence recorded on 25-4-87 by the learned Magistrate, accused went in appeal to the Court of Session. Learned Additional Sessions Judge dismissed the appeal. Failure in the two courts below has not dampened the sprit of the accused. He has knocked the door of this court through this revision.
3. I have heard the learned counsel for the petitioner, learned Assistant Advocate general for the State of Haryana and have gone through the record.
4. According to the Food Inspector, the sample of maida was taken on 15-7-85. Learned counsel for the petitioner submitted that in the month of June and July, there are rains. It is rainy season in the month of June and July and on account of monsoon, there is moisture. No preservative was added in the maida by the Food Inspector. In the absence of the addition of preservation in the maida, there is no surprise if insects bred in the sample due to the entry of moisture in the sample. He submitted that the analysis carried out by the Public Analyst on the sample is as follows :-
1. Physical examination Characteristic of Maida, Nineteen living weevils and hundred living meal worms present
2. Iron Absent
3. Moisture 12.35%
4. Gluten on dry wt. basis 9.8%
5. Total Ash 0.66%
6. Ash insol. in dilute HCL 0.06%
7. Alcoholic acidity (90% 0.078% alcohol) expressed as H2SO4 on dry wt. basis
5. He submitted that the Public Analyst did not find the sample deficient in any of the constituents. He found the sample containing 19 living weevils and 100 living mealworms. He submitted that he did not thus find the sample adulterated. Directed, Central Food Laboratory, Ghaziabad who performed analysis on the other part of the sample recorded the following analytical date :-
Physical Appearance :- The sample was free from fungal growth and rodent contamination. The sample however showed presence of 237 live insects, 3 dead insects, 32 live insect larvae and 56 dead insect larvae (checked on 15-11-85).
Analytical data :-
1. Moisture (at 130-133 deg. C. for 2 hours) : 13.7%
2. Total ash (on dry wt. basis) : 0.72%
3. Ash insoluble in dilute HCL : 0.045% (on dry wt. basis)
4. Gluten (on dry wt. basis) : 5.9%
5. Alcoholic acidity expressed as H2SO4 : 0.25% (with 90% alcohol) on dry wt. basis
6. Microscopic examination : Characteristic of Maida.
7. Rodent hair and excreta : Nil.
Opinion :
The sample does not conform to the standard of Maida laid in item A. 18.02 of PFA Rules, 1955 in that (i) Gluten content is less than the minimum prescribed limit (ii) Alcoholic acidity is above the maximum prescribed limit and sample is not free from live and dead insects and insect larvae. The sample is thus adulterated."
6. He found that the sample was showing the presence of 237 live insects, 31 insecticides, 32 live insect larvae and 50 dead larvae. He found that the sample was not free from live and dead insects and insect larvae and was thus adulterated. Director, Central Food Laboratory found the sample deficient in gluten content. Gluten content was less than the minimum prescribed limit. Alcohol acidity was above the maximum prescribed limit. Director, Central Food Laboratory, Ghaziabad found the sample as not conforming to the standard of maida as laid down in A. 18.02 of the Rules. Item A. 18.02 of the Rules which lays down the standard for maida says that maida shall conform to the following standard :-
"A. 18.02 - MAIDA (wheat flour) means the fine product made by milling or grinding wheat and bolting or dressing the resulting wheat meal. It shall confirm to the following standards :
(a) Moisture - not more than 14.8 per cent (when determined by heating at 130-133 deg. Cel. for 2 hours).
(b) Total ash (on dry weight basis) - Not more than 1.0 per cent.
(c) Ash insoluble in dilute HCL (on dry wt. basis) - Not more than 0.1 per cent.
(d) Gluten (on dry wt. basis) - Not less than 7.5 per cent.
(e) Alcoholic acidity (with 90 per cent alcohol) expressed as H2SO4 (on dry wt. basis) - Not less than 0.12 per cent.
Rodent hair excreta shall not exceed 5 pieces per kg.
7. Learned counsel for the petitioner submitted that the sample was allegedly taken on 15-7-85. It was received in the office of the Public Analyst on 18-5-85. It was analysed on 19-7-85. Analysis report was signed on 22-8-85. Because of it being rainy season, insects bred in the sample. Sample reached the Director, General Food Laboratory on 13-11-85. It was analysed on 15-11-85. Report on analysis was signed on 9-12-85. It was submitted that insects bred in the sample during that period. In support of this submission, reliance was placed on Om Parkash v. State of Haryana, 1986 (1) FAC 77 where it was laid down that where "atta" was not analysed for 24 days, the possibility of some insects infesting the atta could not be ruled out. It was held that it was the bounden duty of the prosecution to rule out this possibility by producing expert evidence. He placed reliance on Single Bench decision of this Court in Mukand Lal v. State, 1975 (1) FAC 281 where the accused was given the benefit of doubt on the ground that atta had remained unexamined, un-analysed for 13 or 15 days. In that case the seizure of sample of atta took place in the month of July which is a rainy season. It was held that in the month of February also, such insect infestation can take place. He placed reliance on Bhopat Ram v. State of Punjab, 1985 (1) RCR 338 where the sample of "haldi" power was taken on 30th September, 1981. No preservative was added in it. On 8-12-82, the Director, General Food Laboratory reported that if in the sample moisture content was 9% as against permissible upto 13% but the sample contained 42 live insect larvae, 9 dead insect larvae, 14 dead insects and a number of insect larvae cocoons. It was pointed out before the learned Single Judge that the sample contained moisture and the possibility could not be ruled out that no preservation was added to the sample. The moisture content could have led to the appearance of larvae cocoons including insects live and dead depending upon their appearance due to the natural food. Reliance was also placed on Ghanshyam Dass v. State of Haryana, 1983 (2) FAC 87, Gulshan Rai v. State of Punjab, 198 (2) FACT 328 (sic). In this case, no preservative was added in maida. No wonder some moisture was already present in the sample bottle. No wonder the moisture entered in the sample bottle afterwards which gave rise to insect infestaion. In this case, however, the sample of maida was deficient and it did not conform to the standard of maida laid down in Item A. 18.02 of the Rules as per the report of the Director, Central Food Laboratory, Ghaziabad. In the report of the Director, Central Food Laboratory, Ghaziabad which supersedes the report of the Public Analyst in view of Section 13(2) of the Act and on which the prosecution relied and which was put to the accused in his statement under Section 313 Cr.P.C., the presence of 257 live insects, 3 dead insects, 32 live insect larvae and 56 dead insect larvae in the sample was found, the sample has to be held to be adulterated in view of its non-conformity to the standard of maida laid down in item A. 18.02 of the Rules.
8. Faced with this position, learned counsel for the petitioner submitted that there is no independent witness examined by the Food Inspector. There were 3-4 customers along with one Raj Kumar, RMP but none of them joined. Even Raj Kumar was not examined. Suffice it to say, in my opinion, there was nothing wrong in the learned courts below in believing the Food Inspector and Dr. J. P. Chaudhary PWs. Learned counsel for the petitioner next submitted that the case should have been tried summarily and it should not have been tried in accordance with the procedure laid down for the trial of warrant cases. Magistrate could try the case in accordance with the procedure laid down for the trial of warrant cases after he had felt either at the commencement of or in the course of summary trial that the nature of the case is such that sentence of imprisonment for a team exceeding one year may have to be passed or that it is for any other reason undesirable to try the case summarily. This is what is laid down in Section 16A of the Act. Section 16-A reads as follows :-
"16-A Power of court to try cases summarily - Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), all offences under sub-section (1) of Section 16 shall be tried in a summary way by a Judicial Magistrate of the first class specially empowered in this behalf by the State Government or by a Metropolitan Magistrate and the provisions of Sections 262 to 265 (both inclusive) of the said Code shall, as far as may be, apply to such trial :
Provided that in the 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 team not exceeding one year :
Provided further that when at the commencement, 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 or that it is, for any other reason, undesirable to try the case summarily, the Magistrate shall after hearing the parties record an offer to that effect and thereafter recall any witness who may have been examined and proceed to hear or rehear the case in the manner provided by the said Code.
9. He submitted that at no stage such an order was passed by the learned Magistrate. Not trying the case summarily but trying the case in accordance with the procedure laid down for the trial of warrant cases without adverting to the provisions of Section 16-A (ibid), would render such trial void. In support of this submission, he drew my attention to 1987 (2) RCR 111 : (1988 Cri LJ 1075). Suffice it to say, the learned counsel for the petitioner has not been able to show any prejudice to the accused if the accused was not tried summarily. In my opinion, the learned Magistrate found the charge proved against the accused justifiably and convicted him and the Additional Sessions Judge justifiably maintained conviction.
10. Faced with this position, learned counsel for the petitioner submitted that the sample was taken on 15-7-85. Petitioner has been suffering the vagaries of criminal trial for the last about 13 years. Trial of this case has been hanging like damoclean sword for all these ears on his head. It is the duty of the court to assure speedy trial to the accused. If the court is not able to assure him speedy trial, the court should at least show some consideration to him in the matter of sentence. He remained in trial for about 2 years before the Magistrate. He filed appeal in the Court of Session in the hope that he would emerge successful. After having lost this hope at the hands of the Court of Session, he knocked the door of this court through this Revision. He has been before this court for the last about 10 years. He submitted that the accused was 70 years old then and he is now about 80 years of age and he is asthmatic also. Age factor also be taken into account while sentencing him.
11. Accused cannot be released on probation under section 4 of the Probation of Offenders Act, 1958 or under section 360 Cr.P.C. because he is more than 18 years old. Section 20AA of the Act bars the release of accused who are more than 18 years old on probation of good conduct.
12. Keeping in view that he is in the evening on his life and that he has been before the courts for 13 long years during which period he has suffered mental agony, the sentence imposed upon him is slashed and is brought down to 3 months simple imprisonment. Sentence of fine shall remain intact. Accused cannot be sentenced to an imprisonment for a term of less than 3 months in view of the following proviso to Section 16 of the Act :-
"Provided that -
(i) if the offence is under sub-clause (i) of clause (a) and is with respect to an article of food, being primary food, which is adulterated due to human agency or is with respect to an article of food which is misbranded within the meaning of sub-clause (k) of clause (ix) of Section 2; or
(ii) if the offence is under sub-clause (ii) of clause (a), but not being an offence with respect to the contravention of any rule made under clause (a) or clause (g) of sub-section (1-A) of Section 23 or under clause (b) of sub-section (2) of Section 24.
The court may, for any adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term which shall not be less than three months but which may extend to two years, and with fine which shall not be less than five hundred rupees."
13. Petitioner is now sentenced to 3 months simple imprisonment and fine of Rs. 1,000/-, in default one month simple imprisonment.
14. Subject to this reduction in sentence, this revision fails and is dismissed.
15. Petition dismissed.