Punjab-Haryana High Court
Ashok Kumar vs State Of Haryana on 21 March, 2014
CRR No.340 of 2007 1
IN THE HIGH COURT OF PUNJAB AND HARYANA,
AT CHANDIGARH
CRR No.340 of 2007
Decided on : 21.03.2014
Ashok Kumar
... Petitioner
Versus
State of Haryana
... Respondent
CORAM : HON'BLE MR.JUSTICE MAHAVIR S. CHAUHAN
Present : Mr.Mandeep Kaushik, Advocate
for the petitioner.
Mr.Satyawan Rathee, DAG, Haryana
for the respondent-State.
Mahavir S. Chauhan, J. (Oral)
The petitioner was prosecuted on the allegation of violation of provisions of Sections 7/16 of the Prevention of Food Adulteration Act, 1954 (for short-the 'Act') and was convicted and sentenced to undergo simple imprisonment for a term of 01 year and to pay a fine of Rs.1000/- and in default, to undergo further simple imprisonment for 03 months by the learned Chief Judicial Magistrate, Kaithal, vide judgment of conviction dated 18.05.2005 and order of sentence dated 25.05.2005.
Aforesaid judgment of conviction and order of sentence were challenged by the petitioner by way of Criminal Appeal No.88 of 2005, which after contest, was dismissed by the learned Sessions Judge, Kaithal vide judgment dated 15.02.2007.
Kumar Sudhir 2014.03.26 16:12 I attest to the accuracy and integrity of this document chandigarh CRR No.340 of 2007 2
To challenge the sustainability of the judgments and order of the courts below, the petitioner has invoked the provisions of Sections 397/401 of the Criminal Procedure Code, 1973 (for short- the 'Cr.P.C.') by way of this revision petition.
I have heard learned counsel for the parties and have perused the record.
The learned counsel representing the petitioner has, in the first instance, argued that vide report (Exhibit-PD) of the Public Analyst, Haryana, Karnal, the colour found in the sample of "Dal" was said to be permitted Synthetic Food colour Tartrazine but the Director, Central Food Laboratory, Pune, has given a different opinion vide its report (Exhibit-PF) but no reasons are coming-forth for these two contradictory reports. The contention, however, is not tenable, for, the report (Exhibit-PF) of the Director, Central Food Laboratory, is outcome of an application made by the petitioner for analysis of second part of the sample and it is settled by now that report of Director, Central Food Laboratory, has to prevail upon the report of the Public Analyst.
It is next contended by the learned counsel for the petitioner that the petitioner made an application on 24.07.1997 for sending second part of the sample to Director, Central Food Laboratory, and as per Rule 17
(c) of the Prevention of Food Adulteration, Rules 1955 (for short- the 'Rules'), it was required to be sent within 07 days from the date of submission of the application, but the second sample, was sent after a lapse of 3-4 months in-violation of the aforesaid rule, and as such, the petitioner is entitled to acquittal.
Kumar Sudhir 2014.03.26 16:12 I attest to the accuracy and integrity of this document chandigarh CRR No.340 of 2007 3
In support of his contention, learned counsel for the petitioner has relied upon Sukhdev Singh Vs. State of Haryana, 2012(5) RCR (Criminal) 325.
On the contrary, on behalf of the respondent-State, it is vehemently argued that the sample was received by Director Central Food Laboratory with seal intact and for that reason, case of the prosecution cannot be doubted only because it was not sent within a period of 07 days from the date of making of the application for the purpose.
Rule 17 (C) of the Rules reads as under:-
"The sealed container of one of the remaining two parts of the sample and a copy of the memorandum in Form VII kept with the Local (Health) Authority shall within a period of 7 days be sent to the public analyst on requisition made by him to it by any suitable means. A perusal of the record shows that the petitioner moved application for sending second part of the sample to Director, Central Food Laboratory on 24.07.1997 and it was on 06.10.1997 that the learned trial Court ordered despatch of the sample to the Director, Central Food Laboratory. It is evident from the report Ex.PF also that the sample was received by Director, Central Food Laboratory on 13.10.1997 though it was despatched to him vide memorandum No.14 dated 6.10.1997. Thus, the second part of the sample was sent much after expiry of period of 07 days as prescribed in Rule 17(c) ibid.
In the cited judgment i.e. Sukhdev Singh Vs. State of Haryana (supra), this Court relied upon a Division Bench judgment rendered in the case of State of Punjab Vs. Balwant Singh, 1992(1) Prevention of Food Kumar Sudhir 2014.03.26 16:12 I attest to the accuracy and integrity of this document chandigarh CRR No.340 of 2007 4 Adulteration Cases, 239 wherein it was held as under:-
"The sample was produced in the court on 18.10.1985 and it was analysed by the Central Food Laboratory on 28.10.1985. Thus, the whole process consumed more than four months resulting in violation of the provisions of Section 13(2) of the Act. This Section envisages prompt despatch of the sample within a period of five days from the receipt of such requisition from the Court. Where sample of food article like milk which is of perishable nature is kept for such a long time of more than four months at room temperature (particularly when sample is taken in the hot month of June) it is likely to deteriorate. The accused lost no time in availing of this statutory protection. He moved the application on 20.08.1985 for production of the sample in the Court but it was produced on 18.10.1985. To add to the miseries of the accused, it was analysed on 28.10.1985 i.e. much more than four months from the taking of the sample. Under these circumstances, non-production of the sample in the Court for such a long time will certainly cause material prejudice to the accused and breach of the aforesaid mandatory Section of the Act which is fatal to the prosecution."
Nothing to the contrary has been shown during the course of hearing.
In view of the above, it is needless to state that Rule 17(c) of the Rules and Section 13(2) of the Act have been violated insofar as requisition for sending of second sample was made by the petitioner on 24.07.1997 but the second sample was sent to the Director, Central Food Laboratory on 16.10.1997 i.e. much after the expiry of the statutory period Kumar Sudhir 2014.03.26 16:12 I attest to the accuracy and integrity of this document chandigarh CRR No.340 of 2007 5 of 5/7 days.
In this view of the situation, the judgments/order of the courts below cannot be allowed to sustain and are, therefore, set aside.
As a natural consequence, petition is allowed, and petitioner is acquitted of the offence of which he has been charged and convicted. The petitioner is on bail. His bail bonds are discharged. The amount of fine, stated to have been deposited by the petitioner, shall be refunded to him as per procedure known to law.
[ Mahavir S. Chauhan ] Judge 21.03.2014 sd Kumar Sudhir 2014.03.26 16:12 I attest to the accuracy and integrity of this document chandigarh