Desh Raj and Others vs State of H.P.

Surjit Singh, J.—This revision petition by Desh Raj, Bakhtawar Mal and M/S Ganesh General Store, is directed against the judgment, dated 5.5.2004 of learned Sessions Judge, Bilaspur, whereby, appeal filed by the revision Petitioners against the judgment, dated 30.9.2000, of learned Chief Judicial Magistrate, by which judgment, two of them, namely Desh Raj and Bakhtawar Mal, were convicted of offence, u/s 16(1)(a)(i) read with Section 7(1) of the Prevention of Food Adulteration Act, 1954, hereinafter referred to as Act, and sentenced to undergo rigorous imprisonment for six months and to pay a fine of Rs. 1,000/-, in default of payment of fine to undergo rigorous imprisonment, for a further period of three months, and Respondent No. 3 M/S Ganesh General Store, has been sentenced to pay a fine of Rs. 1000/-, stands dismissed.

PW-1 I.D. Verma, Food Inspector visited the shop of Respondents Desh Raj and Bakhtawar Mal, named and styled as M/S Ganesh General Store, Ghagus, on 31.3.1991, around 8 A.M. Respondent Des Raj was present at the shop at that time. PW-1 I.D. Verma, Food Inspector was accompanied by Dila Ram, PW-3 at the time of such visit. After disclosing his identity, Food Inspector told Respondent Desh Raj that he intended to take sample of hard boiled sugar balls (confectionery), lying in his shop for sale. Then he purchased 600 grams of such hard boiled sugar balls, divided them into three equal parts, put them into three clean and dry bottles and wrapped, labelled and sealed the three bottles, as per requirement of Rules.

One of the three samples, was sent to the Public Analyst, Chandigarh, who opined that the food article was adulterated, because ash insoluble in dilute hydrochloric acid, was 0.34%, against the maximum prescribed limit of 0.2%. Remaining two parts of the sample were deposited with the Local Health Authority. On receipt of report from the Public Analyst, sanction was obtained from the Local Health Authority, to prosecute the revision Petitioners. On receipt of such sanction, complaint was filed.

Petitioners were tried summarily. Substance of accusation was put to them, to which they pleaded not guilty. Food Inspector, I.D. Verma, examined himself as PW-1, his peon Dila Ram as PW-3 and a witness from the office of Local Health Authority, namely PW-2 R.L. Gupta, to prove his case.

Learned trial Magistrate held the Petitioners guilty and convicted and sentenced them, as aforesaid. Appeal, filed by the Petitioners against their conviction and sentence, stands dismissed by the learned Sessions Judge.

I have heard learned Counsel for the Petitioners and learned Assistant Advocate General and gone through the record.

According to the statement of PW-1 I.D. Verma, Food Inspector, Petitioner Desh Raj, was conducting the business in the premises, at the time of his visit. Petitioner Bakhtawar Mal, is the father of Petitioner Desh Raj. There is no evidence on record, showing that Petitioner Bakhtawar Mal, has anything to do with the business, named and styled as M/S Ganesh General Store, except that in cross examination, I.D. Verma, PW-1 stated, that he was told by Desh Raj, at the time of taking of sample, that his father was a partner with him, in the aforesaid firm. Both Desh Raj and Bakhtawar Mal, in their statements u/s 313 Cr.P.C., admitted that they were partners in the firm. However, there is no evidence, suggesting that Bakhtawar Mal is responsible for running the business, or that he is an active partner. So, Bakhtawar Mal''s conviction and sentence cannot be upheld.

As regards Petitioner Desh Raj, learned Counsel submits, that as per Rule 22 of Prevention of Food Adulteration Rules, hereinafter referred to as Rules, as it existed at the time when sample was taken, 300 grams of hard boiled sugar confectionary, was required to be sent to the Public Analyst. It is true that as per Rule 22, as it was there prior to the amendment of 2003, 900 grams of hard boiled sugar confectionary, was required to be divided into three parts, but Rule 22 is not mandatory. It is only directory.

Hon''ble Supreme Court, in State of Kerala etc. etc. v. Alaserry Mohammed etc. etc. 1978 (1) F.A.C. 145, held that Rule 22 of the Rules, is directory and that unless the Public Analyst says that the quantity was not enough to analyze the food stuff, accused cannot claim that he is entitled to acquittal, on account of short quantity of the sample.

Next submission, made on behalf of the Petitioners, is that there is non compliance of Rules 17 and 18 of the Rules, inasmuch as sample and the specimen impression of the seal, had not been sent to the Public Analyst, separately on the working day, next following the day of taking of the sample. This submission is also without merit. Sample was taken on 31.3.1991, per documents on record, i.e. notice, copy Ex.P-1, receipt, Ex.P-2 and panchnama, Ex. P-3, as also the testimony of Dila Ram, PW-3. One part of the sample was sent to the Public Analyst on 1.4.1991, or say the next following day, vide memo Ex.P-4. Sample was sent by registered parcel. Postal receipt is Ex.P 5. This bears the date, 1.4.1991. Similarly, specimen impressions of seal were sent separately, on form VII, copy Ex.P-6, by registered post. Postal receipt is Ex.P-7 and it also bears the date 1.4.1991.

Another submission, made on behalf of the Petitioners, is that the adulteration, noticed by Public Analyst, is not injurious to health. The submission, in no way, comes to the rescue of the Petitioners. An article of food, has to conform to the standards, laid down in the Act and the Rules framed there-under. Food article, sample of which was taken from Petitioner Desh Raj, having failed to conform to such standards, is adulterated, within the meaning of Section 2(i)(a)(l) of the Act.

No other point has been urged.

It has been argued that the sentence imposed by the trial Court and as upheld by the Sessions Court, may be reduced. I do not find any reason to reduce the sentence, because adulteration of food articles, has attained alarming proportions and it is affecting the health of people and in this case, where hard boiled confectionary was adulterated, health of small children, who normally enjoy this kind of confectionary, was at risk.

As a result of the above discussion, Bakhtawar Mal''s conviction and sentence are set aside and the revision petition, to this extent, is allowed. Conviction and sentence of Petitioner Desh Raj, are upheld and his prayer for acquittal, made in the revision petition, is rejected. Revision petition stands disposed of accordingly.