R.N.Tyagi vs State of Haryana

S.S. Sudhalkar, J. (Oral)

The petitioner was convicted by the learned Chief Judicial Magistrate, Faridabad for the offences punishable under Sections 16(1)(a)(i) of the Prevention of Food Adulteration Act (hereinafter referred to as the Act) and was sentenced to undergo rigorous imprisonment for a period of one year and to pay a fine of Rs. 1,000/. The petitioner filed appeal in the court of Sessions, Faridabad, which was decided by the learned Additional Sessions Judge, who maintained the conviction but reduced the substantive sentence to rigorous imprisonment for a period of six months. Being aggrieved by the conviction and the dismissal of appeal, the petitioner has filed this revision petition.

I have heard Mr. Hemant Bassi, learned counsel for the petitioner and Mr. Gobind Dhanda, learned AAG for the respondentState.

The case of the complainant against the petitioner is that on 30.5.1982, Food Inspector Piare Lal along with Dr. R.K. Sharma, inspected the premises of Shiv Soda Water Factory at 6.00 a.m. The factory is situated at old Faridabad. The petitioner was found having in his possession 2 dalas (crates) of 24 bottles each for public sale. The bottles contained carbonated water lemon. A sample was demanded and Food Inspector purchased 9 bottles of 200 grams each. All the bottles were opened, the contents were mixed in a tub and again got refilled in the same bottles. Thereafter, the samples were sealed. On examination of the samples, it was found that it contained Saccharine 115 PPM against the maximum prescribed standard of 100 PPM. The addition of Saccharine was without any label declaration. The sample also contained suspended matter and one bottle was containing thin plastic piece of 2 cms.

The evidence was recorded in the trial Court and the prosecution has examined two witnesses, viz. Piare Lal, Food Inspector PW1 and Dr. R.K. Sharma, PW2. After the statement of the petitioneraccused was recorded, he examined Krishanvir as DW1 and Radhey Shyam Gupta, as DW2. The trial Court found the petitioner guilty of the offence and held the evidence reliable. The finding was confirmed by the lower appellate Court.

In this revision petition, following points are raised by the learned counsel for the petitioner :

(i) The bottles were emptied in a tub and no precaution was taken at the time of mixing that the tub was clean.

(ii) That the petitioner is neither the owner nor the servant of the factory in question, which was raided and, therefore, he is not liable of excess Saccharine which can lead to conviction under the provisions of the Act.

(iii) It is not shown as to by which mode the sample was sent to the Chemical analyst.

Taking the first point, the petitioner''s counsel has read over to me the deposition of PWs. PW1 has stated that :

"all the bottles were opened, mixed in a tub and again got refilled in the same bottles by the accused."

PW2 has stated that :

"nine bottles were opened, emptied in a cleaned tub and (the contents) were mixed properly and the contents were filled in the same bottles."

Learned counsel for the petitioner argued that the prosecution has failed to show that the tub was cleaned. Learned AAG for the State has argued to the contrary and submitted that PW2 has specifically stated that the tub was clean and there is no crossexamination of either of the witnesses on this point.

It can be seen that the contents which were examined, in addition to the Saccharine that was found, had one thin plastic piece and some suspended matter. Learned counsel for the petitioner has argued that this thin plastic piece could have been there because the tub was not clean. PW1 does not say that the tub was cleaned or that it was got cleaned. PW2 states that the tub was clean. A tub, which may appear to be clean may not be clean because it may contain some deposits of the things earlier contained in it, which may be dried up and the said deposits may not get wiped out even by just cleaning with a dry cloth. In such a case, if any liquid which is a solvent of the contents which might have remained in the tub is put in the tub, the solute may get dissolved into the solvent. The possibility of the tub containing some Saccharine deposits in this manner also cannot be ruled out. It is not in evidence as to from where the tub was brought. There is a force in the argument of the learned counsel for the petitioner that the lack of evidence of the tub being cleaned before the contents of the bottles were emptied in the tub, creates a doubt. If such a doubt is created, the benefit of it has to go to the petitioner.

Regarding the other points, it can be stated that I may not deal that points because the petitioner can succeed on point No. 1 mentioned above.

Learned AAG has argued that this is a revision petition and evidence should not be reappreciated. However, when a lacuna is apparent on the record, it will not be reappreciation of evidence, if the same is considered. The Court cannot shut its eyes to the fact clearly visible on record that there is no evidence to show that the tub was cleaned before the contents of the bottles were emptied.

In view of the above reasons, I do not find it necessary to consider the other arguments raised by the learned counsel for the petitioner. The revision petition can be allowed on the above finding alone.

As a result, this revision petition is allowed. The conviction and sentence against the petitioner are set aside and he is acquitted of the offence charged with. Bail bonds shall stand cancelled. Fine, if paid, is ordered to be refunded.