Crl. Rev. No. 1697 of 2004 [ 1 ]
IN THE HIGH COURT OF PUNJAB & HARYANA,
CHANDIGARH
Crl. Rev. No. 1697 of 2004
Date of Decision: Dec. 14,2009
Gajender Kumar ...................................... Petitioner
Versus
State of Haryana .................................. Respondent
Coram: Hon'ble Mr.Justice Ashutosh Mohunta
Present: Mr. R.N.Lohan, Advocate
for the petitioner.
Mr. M.S.Sindhu, Addl. A.G. Haryana.
...
ASHUTOSH MOHUNTA, J. (Oral)
The petitioner is aggrieved by the judgment dated
13.1.2001 passed by the Sub Divisional Judicial Magistrate,
Fatehabad, and the judgment dated 13.8.2004 passed by the
Additional Sessions Judge, Fatehabad, vide which he was
convicted under Section 16(1)(a)(i) read with Section 7 of the
Prevention of Food Adulteration Act,1954 (hereinafter referred to
as `Act’) and was sentenced to undergo rigorous imprisonment
for a period of 1-1/2 years and to pay a fine of Rs.1,000/- and in
default of payment of fine, to further undergo rigorous
Crl. Rev. No. 1697 of 2004 [ 2 ]
imprisonment for one month.
Briefly the facts of the case are that the petitioner was
a tea vendor and for preparation of tea, was keeping milk in his
tea stall. On 15.5.1993, Khushi Ram Gambhir, the Government
Food Inspector, who was authorised to take samples of food stuff
from vendors with a view to have them analysed from Public
Analyst, went to the tea stall of the petitioner situated near
Community Health Centre, Bhattu Mandi, and purchased 750 Mls
of cow milk from the accused Gajender Kumar on payment of
requisite price. After purchasing the milk, the milk was
thoroughly stirred and homogenised and thereafter the
Government Food Inspector divided the milk into three equal
parts and put them in three dry and clean bottles and also put 20
drops of 40% formalin in each bottle as preservative. Thereafter,
the bottles were stoppered, securely fastened, wrapped in strong
thick paper and were sealed. One sealed bottle was sent to the
Public Analyst, Haryana. A report was received from the Public
Analyst by the Local Health Authority, as per which the sample of
cow milk did not conform to the standards laid down for cow’s
milk under the Act. It was reported that the milk fat was detected
to be 2.6% while milk solids not fat were detected to be 4.8%
and hence both fell below the minimum specified limits of milk fat
and milk solids.
On the basis of the report of the Public Analyst, a
complaint was filed before the Court of Sub Divisional Judicial
Magistrate, Fatehabad. The petitioner stated that he was innocent
Crl. Rev. No. 1697 of 2004 [ 3 ]
and that the milk was not for sale and was kept for preparing tea.
He claimed trial.
During the trial, the complainant appeared as PW1.
The prosecution also examined Dr. Sant Lal, Medical Officer, Civil
Hospital, Karnal, as PW2 and Ram Murti, Clerk in the office of
Civil Surgeon SMO, Fatehabad, as PW3. Thereafter, the
prosecution evidence was closed. The accused produced Sham Lal
son of Ganesha Ram, a shopkeeper in Bhattu Mandi, in his
defence and, thereafter closed his evidence.
The trial Court found that the sample of milk has been
opined to be adulterated by the Public Analyst, Haryana, and it
also returned a categorical finding that all the formalities, right
from taking of the sample of the milk to sending it to the Public
Analyst, have been complied with and held the petitioner guilty
for selling adulterated milk. Accordingly, the petitioner was
convicted under Section 16(1)(a)(i) read with Section 7 of the Act
and was sentenced to undergo rigorous imprisonment for 1-1/2
years and to pay a fine of Rs.1,000/- and in default of payment
of fine, to further undergo imprisonment for one month.
The appeal filed by the petitioner was dismissed by the
Additional Sessions Judge, Fatehabad, vide judgment dated
13.8.2004.
Mr. Lohan, counsel for the petitioner, has submitted
that the milk which was lying in the tea stall of the petitioner was
not for sale but was meant for preparation of tea. Learned
counsel has placed reliance on the judgment in State of
Crl. Rev. No. 1697 of 2004 [ 4 ]
Haryana v. Inder Singh 1991(3) RCR (Criminal) 116 wherein it
was held by the Division Bench that if the milk was kept for
preparation of tea and was not for sale, then no offence is made
out. He further submits that the petitioner has already suffered a
long and protracted trial of more than 16 years inasmuch as the
sample of milk was taken on 15.5.1993 and, therefore, his
sentence be reduced to the one already undergone by him.
Counsel for the State has vehemently opposed the
prayer made by the counsel for the petitioner. He submits that
the milk recovered from the petitioner has been found to be
adulterated by the Public Analyst, Haryana, and as the petitioner
is playing with the health and lives of people of general public,
therefore, he does not deserve any sympathy and there should
be no reduction in the sentence.
I have heard the counsel for the parties at length.
A perusal of the aforementioned facts clearly shows
that the sample of the milk was found to be adulterated both as
far as milk fat and milk solids are concerned and, hence, the
conviction of the petitioner by both the Courts below is confirmed
and upheld.
Coming to the point of sentence, I find that the
petitioner has already suffered a long and protracted trial of more
than 16 years. In Satish Kumar v. Union Territory 2009 (3)
RCR (Criminal) 325 the sentence awarded to the accused in a
case under the Prevention of Food Adulteration Act,1954 was
reduced to the one already undergone by him as the accused had
Crl. Rev. No. 1697 of 2004 [ 5 ]
suffered a long and protracted trial. In Braham Dass v. State
of Himachal Pradesh 1988(2) RCR (Criminal) 184 (SC) in
paragraph 5 it was observed as under:-
“Coming to the question of sentence, we find that the
appellant had been acquitted by the trial Court and
the High Court while reversing the judgment of
acquittal made by the appellate judge has not made
clear reference to clause (f). The occurrence took
place about more than 8 years back. Records show
that the appellant has already suffered a part of the
imprisonment. We do not find any useful purpose
would be served in sending the appellant to jail at this
point of time for undergoing the remaining period of
the sentence, though ordinarily in an anti-social
offence punishable under Prevention of Food
Adulteration Act the Court should take strict view of
such matter.”
The observations made above in Braham Dass’s
case (supra) were followed by this Court in cases titled as
Ramesh Kumar v. State of Punjab 1989 (2) Recent Criminal
Reports 183 and Ishwar Singh v. The State of Haryana 1994
(1) Recent Criminal Reports 161 and the sentence awarded to the
accused therein under the Act, was reduced to the period already
undergone.
In view of the above, while upholding the conviction of
the petitioner under Section 16(1)(a)(i) read with Section 7 of
Crl. Rev. No. 1697 of 2004 [ 6 ]
the Act, I reduce the sentence of the petitioner to the one already
undergone by him. However, the petitioner shall pay a fine of
Rs.20,000/- which shall be deposited by him within a period of
three months before the trial Court. In case the petitioner does
not deposit the fine as imposed by this Court within the
stipulated period mentioned above, the benefit of reduction in
sentence shall not accrue to the petitioner and he shall taken
into custody forthwith to serve out the sentence as imposed by
the Courts below.
Revision is disposed of.
14.12.2009 ( ASHUTOSH MOHUNTA ) Rupi JUDGE