Tek Chand vs State of Haryana

B.S. Yadav, J.

The present petitioner Tek Chand was prosecuted in the court of sub Divisional Judicial Magistrate Palwal, for being in possession of 35 kgs of milk meant for public sale. He was apprehended at the bye pass of Palwal town on 2nd December, 1978 at 8 A.M. by P.W.1.I.B.C. Verma, Government food Inspector. The petitioner was not found in possession of licence as required under rule 50 of the Prevention of Food Adulteration Act. That rule says that no person shall manufacture, sell or stock, distribute or exhibit or sale any of the articles mentioned in that rule except under licence. One of the articles mentioned is milk of all classes and designation. To support the prosecution version P.W.1.B.C. Verma and his peon P.W. 2 Arjan Dev appeared in the witness box.

At the close of the prosecution evidence the petitioner was examined under section 313 of the Code of Criminal Procedure. He pleaded that he did not use to sell any milk in Palwal and that he used to sell milk in Faridabad for which he had a licence. According to him, he was arrested at the Railway Station, which was outside the limits of Municipal Committee, Palwal. In his defence the petitioner produced Exhibit D. 1 which is a receipt issued by the Faridabad Complex about the deposit of licence fee by him for the years 197778 and 197879. This receipt is dated 30th May, 1978. He also produced Exhibit D. 2 which is copy of the form which is issued by the Government Food Inspector, Faridabad. This document shows that on 30th January, 1980 sample of milk was taken by the Food Inspector from Kishan Lal who was described as a servant while the petitioner was described as owner of the milk.

The learned trial Court a discarded the defence version and convicted the petitioner under section 16 (1) (a) (ii) of the Prevention of Food Adulteration Act and sentenced him to undergo rigorous imprisonment for 3 months and to pay a fine of Rs. 400/. It was also ordered that in default of payment of fine he would undergo further rigorous imprisonment for a period of one month.

The petitioner filed an appeal which was heard by learned Additional Sessions Judge, Faridabad. The said Court did not find any merit in the appeal and dismissed the same.

The learned counsel for the petitioner vehemently argued that on the file there is not an iota of evidence to show that the petitioner ever sold milk within the limits of Palwal Municipality and therefore, merely because he was found passing through the said limits with 35 kgs. of milk, it cannot be presumed that the petitioner intended to sell that milk at Palwal. He further argued that from the beginning the plea of the petitioner has been that he is selling milk at Faridabad. After taking into consideration the arguments of the learned counsel for the petitioner, I am of the opinion that the said arguments have force. P.W.1.B.C. Verma, Food Inspector, has stated that he had seen the petitioner selling milk in Palwal. However, he could not give the name of any person who might have purchased milk from the petitioner at Palwal. He also admitted that on the day he had apprehended the petitioner, he was not found selling milk in Palwal. It was specifically put to Verma that the petitioner had shown him the railway pass and had told him that he used to sell milk at Faridabad. The witness pleaded failure of memory on that point.

P.W. 2 Arjan Dev also stated that he had seen the petitioner selling milk in Palwal. However, on further crossexamination he had to state that he could not tell the place where he had seen the petitioner selling milk in Palwal.

Thus from the evidence it is difficult to gather that the accused was in possession of milk for sale within the limits of Municipal Committee, Palwal.

As noticed earlier, he produced Exhibit D. 1 on the file to show that long before the present occurrence he had deposited licence fee with the Faridabad Complex Administration for obtaining licences for the years 197778 and 197879. There is also evidence that sample of milk was taken from his servant by the Government Food Inspector, Faridabad, on 30th January, 1980. The learned lower Appellate Court discarded these documents on the ground that those were not sufficient to prove that the milk which the petitioner was found to be in possession on being intercepted by the Food Inspector, Palwal, on 2nd December, 1978, was not meant for sale at Palwal and was only meant for sale at Faridabad. The onus was upon the prosecution to show that the milk was meant for sale at Palwal. Thus there is nothing to belie the defence plea that on the day in question he was carrying milk for sale at Faridabad.

For the foregoing reasons I hold that the prosecution evidence was not sufficient on the basis of which the petitioner could have been convicted. Accordingly, I set aside the conviction and sentence of the petitioner and acquit him of the charge against him.