Krishan vs State of Haryana

S.S. Saron, J.—This revision petition has been filed by the Petitioner against the order dated 17.2.2009 passed by the learned Additional Sessions Judge, Hisar, whereby his appeal against the order dated 10.2.2005 passed by the learned Chief Judicial Magistrate, Hisar has been dismissed and his conviction and sentence for the offence u/s 16(1)(a)(i) of the Prevention of Food Adulteration Act, 1954 ("Act" - for short) has been upheld.

The Petitioner was sentenced to undergo rigorous imprisonment for one year and to pay a fine of Rs. 1,000/-by the learned Chief Judicial Magistrate which has been reduced by the learned Additional Sessions Judge, Hisar to six months'' imprisonment.

Learned Counsel for the Petitioner contented that Subhash Chander Government Food Inspector (PW-1) has not categorically stated that the milk from which sample was taken, was stirred clockwise and anti-clockwise before taking sample. Therefore, the manner in which the sample was taken was defective and the milk sample that was taken cannot be said to have been properly analysed and tested so as to record a finding of guilt against the Petitioner. In any case, it is submitted that, the Petitioner is facing agony of trial and prosecution for the last thirteen and a half years and therefore, his release on probation may be considered.

Learned Counsel for the State has submitted that the Petitioner is not entitled to the benefit of probation in view of the provisions of Section 20(AA) of the Act. Besides, the order of conviction and sentence is based on material and evidence on record and, therefore, does not warrant any interference of this Court.

After giving my thoughtful consideration to the matter, it may be noticed that the contentions of the learned Counsel for the Petitioner that the milk from which the sample was taken was not stirred properly i.e. clockwise and anticlockwise is not tenable. A complaint u/s 16 of the Act was filed by Subhash Chander Government Food Inspector (PW-1), a copy of which has been placed on record. It is inter alia stated that the Food Inspector intercepted the premises of Krishan Kumar (Petitioner) and found 15/20 lts + 15/20 lts cow milk on his moped for public sale which was in two drums. The Government Food Inspector demanded a sample of cow milk by giving him notice in writing on Form VI prescribed under the Prevention of Food Adulteration Rules, 1955. It is then stated that 750 mls of cow milk was purchased after mixing the whole contents properly and made uniform for analysis. Therefore, evidently it is specifically stated that the sample of milk was purchased after mixing the whole contents properly and was made uniform for analysis. Both the Courts below have held that the evidence on record is reliable and convicted the Petitioner for the offence u/s 16(1)(a)(i) of the Act. Besides, it was noticed that the Government Food Inspector in his deposition in Court stated that the milk was properly stirred and thereafter, the sample of 750 mls was taken from the drum. Therefore, the finding having been recorded that the milk was properly stirred, it cannot be said to be without basis. In Food Inspector Palghat Municipality v. Karingarappully Co-operative Milk Supply Society Ltd. and Ors. 1986 CriLJ 719, a Division Bench of the Kerala High Court considered a case of sale of milk by the vendor to the Food Inspector on the latter serving an appropriate notice and demanding sale of a sample for analysis. The evidence showed that the milk was measured from the container by the vendor and delivered to the Food Inspector. It was not a case where in the absence of the vendor or in the face of his non-cooperation, the Food Inspector took the sample. It was observed that neither the Act nor the Rules contain any provision to the effect that the entire quantity of milk in the container in possession of the vendor should be stirred before effecting the sale to the Food Inspector. If the normal mode of serving or selling a part of the milk contained in a larger container involves stirring the entire quantity, the vendor should have done it. If that was not the normal mode, that would not be done when the sale is made to the Food Inspector also. Therefore, the contention of the learned Counsel for the Petitioner in the present case that the milk was not properly stirred by the Government Food Inspector and this fact is not mentioned in the complaint (Ex.PC), is devoid of merit.

As regards the contention regarding release of the Petitioner on probation, it may be noticed that Section 20(AA) of the Act provides that nothing contained in the Probation of Offenders Act, 1958 or Section 360 Code of Criminal Procedure shall apply to a person convicted of an offence under the Act unless that person is under 18 years of age. The Petitioner is admittedly more than 18 years of age. Therefore, the Probation of Offenders Act, 1958 or that of Section 360 Code of Criminal Procedure relating to release on probation of good conduct are not applicable to cases under the Act. The contention of the learned Counsel that the Petitioner has faced the agony of prosecution and trial for the last thirteen and a half years is also baseless as he has been imposed the minimum sentence of six months.

Accordingly, there is no merit in this petition and the same is dismissed.