Bhim Singh vs State of Haryana

K.P.S. Sandhu, J. (Oral)

This is a revision petition filed by Bhim Singh, Gurmohan and Rajbir against their conviction and sentence of rigorous imprisonment for one year and a fine of Rs. 1,500/ in default further rigorous imprisonment, for six months each under Section 16(1)(a)(i) read with Section 7 of the Prevention of Food Adulteration Act. An appeal was carried to the Court of Sessions where it failed substantially inasmuch as the sentence of imprisonment of the petitioners was reduced to rigorous imprisonment for nine months each. The petitioners came up in revision in this Court.

Bhim Singh and Gurmohan petitioners are liquor licensees of a countrymade liquor vend in Anaj Mandi Gate in Narwana while Rajbir petitioner in their salesman. Food Inspector Ram Singh PW1 along with Dr. B.K. Madhok Chief Medical Officer PW2 and Dr. M.L. Sharma Senior Medical Officer of General Hospital PW3 inspected the vend where Rajbir petitioner was present. The Food Inspector purchased one bottle of countrymade liquor known as Kesar Kasturi for Rs. 16 from Rajbir petitioner vide receipt Exhibit PB. The bottle was sealed. The seal was opened and contents of the bottle were divided into three equal parts and transferred into three different bottles. One of the samples was sent to the Public Analyst. According to the report of the Public Analyst. Exhibit PD, the strength of the sample was found 46.12 gp. as against 50 gp. prescribed under the rules. A complaint was filed by the Food Inspector against the petitioners. Consequently, they were convicted and sentenced as stated above.

Admittedly, the bottle was sealed with the seal of the factory known as `Haryana Distillery, Yamunanagar''. It had a label on it showing the brand of the liquor as Kesar Kasturi. Rajbir petitioner also showed receipts for the purchase of the liquor from the aforesaid factory. Mr. S.C. Sibal, learned Counsel for the petitioners, has contended that, in view of rule 22A of the Prevention of Food Adulteration Rules, 1955, the sealed bottle of liquor should have been treated as part of the sample without opening the seal. Rule 22A reads as under :

"22A Contents of one or more similar sealed containers having identical labels to constitute the quantity of a food samples. Where food is sold or stocked for sale or for distribution in sealed containers having identical label declaration, the contents of satisfy the quantity prescribed in Rule 22 shall be treated to be a part of the sample."

In this context he has placed reliance on Daljit Wig v. State of Punjab, 1980 CLR (Pb. and Haryana) 166, where in it has been held that a sealed container has to be treated as part of the sample for the purpose of analysis and that a sample cannot be taken from the container by breaking open its seal. I agree with the learned counsel for the petitioners that the petitioners could take up the defence under Section 19(2) of the Prevention of Food Adulteration Act that they had purchased the same from a licensed manufacturer under a warranty. By opening the seal and dividing the contents of the bottle into three parts the defence of the petitioners has been prescribed.

In view of the above discussion, I give the benefit of doubt to the petitioners and set aside their conviction and sentence. The fine, if realised, should be refunded to the petitioners.

JUDGMENT accordingly.