Crl. Revision No.143 of 2000. 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Crl. Revision No.143 of 2000. DECIDED ON : 5.2.2009. Basti Ram Petitioner VERSUS State of Haryana and anaother Respondents. CORAM HON'BLE MR. JUSTICE JORA SINGH Present: Mr. N.K.Sanghi, Advocate, with Mr. Munish Garg, Advocate, for the petitioner. Mr.K.S.Godara, DAG( Haryana) JORA SINGH,J. Basti Ram-petitioner has filed this revision against the judgment dated 1.2.2000, whereby appeal filed by him against the judgment/order dated 14.10.1998 passed by Sub Divisional Judicial Magistrate, Mohindergarh, was dismissed vide judgment dated 14.10.1999 the petitioner was directed to undergo rigorous for a period of one year and to pay a fine of Rs.1000/- under Section 16(1) (a) (i) of Prevention of Food Adulteration Act, 1954 (hereinafter referred to as 'the Act'). In default of payment of fine to further undergo rigorous imprisonment for a period of three months. Vide judgment dated 1.2.2000 passed by the First Appellate Court, judgment of the lower Court was modified. Petitioner was directed to undergo rigorous imprisonment Crl. Revision No.143 of 2000. 2 for a period of six months. As per the prosecution story, on 31.10. 1988 at about 5.30 P.M.,Meghnath, Government Food Inspector along with Dr.Lamuria had intercepted the petitioner opposite Government Hospital, Mahendergarh. Petitioner was found in possession of four kg of Cow Milk, for public sale. Milk was in a drum. Food Inspector after disclosing his identity, served notice Ex.PA directing the petitioner to sell the milk for sampling purpose. 750 ML of milk was purchased against payment of Rs.4.10 paise vide receipt Ex.PB. After making it uniform for analysis, the sample was divided into three equal parts and put into three equal dry bottles. Two drops of 402 of formalin per 25 ML/Mg, were added as preservatives in each bottle. While doing so, he observed the requisite formalities with regard to stoppering, labelling, wrapping, sealing etc. Memo Ex.PC was prepared. One sealed bottle along with memorandum form VII was sent to Public Analyst, Haryana, Chandigarh in a sealed packet. Other two sealed bottles with two copies of memorandum Form VII with the Local Health Authority in a sealed packet on the same day vide receipt Ex.PF. A copy of memorandum Form No.VII and specimen seal impression used to seal the sample was sent separately to the Public Analyst, Haryana, Chandigarh, through registered post vide receipt Ex.PE. As per report of the Public Analysis Ex.PG, dated 9.12.1988 milk fat was found 4.0% and Milk Solids not fat 6.3%. However, milk solids not fat were found 26% deficient. On receipt of report Crl. Revision No.143 of 2000. 3 of Public Analysis, Food Inspector launched prosecution. Notice was issued to the petitioner . Evidence was led by both the parties. Ultimately, petitioner was convicted under Section 16(1) (a) (i) of the Act and was sentenced, as aforesaid. Mr. N. K. Sanghi, Advocate, learned counsel for the petitioner argued that complaint should be tried as a summon case. Proper procedure was not followed. No independent witness was joined. Sample was not taken as per law. In fact, the petitioner was found to be in possession of four Kg cow milk, but he (the petitioner) was carrying milk for supply to his relative. Lastly, learned counsel for the petitioner argued that case is of the year 1988. Moreover, the petitioner remained in custody from 1.2.2000 to 15.3.2000. Requested to take lenient view. Mr.K.S. Godara, Deputy Advocate General,Haryana, argued that offence is of serious nature. No question of lenient view. First submission of the learned defence counsel for the petitioner was that complaint was not tried as a summon case. Procedure of warrant case was followed, but contention of the learned defence counsel carries little weight. No doubt, complaint should have been tried as a summon case because the punishment was less than two years but if the summons case is tried as warrant case, in case, no specific order to try summons case as warrant case then complaint is not to be dismissed. No prejudice is caused to the petitioner while Crl. Revision No.143 of 2000. 4 trying the complaint case as a warrant case. Witnesses appeared in the presence of petitioner. Opportunity was given to cross examine them. No prejudice was caused to the petitioner when opportunity was given to him to cross examine the witnesses. In the instant case, specific order dated 13.6.1990 was passed that keeping in view the gravity of the case, complaint is to be tried as a warrant case. Order was passed in the presence of the petitioner before starting the evidence. Irregularity does not vitiate the proceedings. Next submission of the defence counsel was that no independent witness was joined. Non-joining of independent witnesses is fatal. Report of the Chemical Analysis was put to the petitioner, but submission of the learned defence counsel carries little weight. Evidence on the file shows that according to Food Inspector, independent witnesses were present on the spot and they were requested to join the investigation, but they had refused to join. Doctor was accompanying the Food Inspector. Doctor was not subordinate. Effort was made to join independent witnesses, but nobody came forward to join. No prejudice was caused to the petitioner when the witnesses had no enmity against the petitioner. Statement of Food Inspector stands corroborated with the statement of the doctor. Report of the Public Analysis was put to the petitioner. Incriminating evidence appeared against the petitioner is to be put. In the presence of the petitioner pSre-charge evidence was recorded, then charge was framed. After charge, again Crl. Revision No.143 of 2000. 5 evidence was led by the Food Inspector. From the very beginning petitioner had the knowledge that as per report of the analysis, sample was found to be adulterated. Next submission of the learned defence counsel was that proper procedure was not followed to separate sample, but submission of the learned defence counsel is not correct one. Doctor has specifically stated that milk being carried by the petitioner was properly stirred and made homogeneous before separating sample. Statement of Food Inspector stands corroborated by Doctor MP Lamuria (PW2). As per both the witnesses, milk was made homogeneous by stirring clock-wise and anti-clockwise and after that sample was separated. Next submission of the learned defence counsel was that only four kg cow milk was being carried by the petitioner for supply to his relatives. I have gone through the evidence on the file. The petitioner has not stated a word to whom he was to supply milk. No one appeared as a defence witness to state that milk was to be supplied to him. No suggestion to the witnesses that milk was for supply to a particular person. After the sample is found to be adulterated, it is very easy to say that milk was to be supplied to a particular person. When there was no function in the family of the petitioner and the petitioner is silent to whom the milk was to be supplied, then I am of the opinion that the submission of the learned defence counsel is not correct one. Crl. Revision No.143 of 2000. 6 Last submission of the learned defence counsel was that occurrence was in the year 1988. Petitioner remained in custody for more than two months. Petitioner is a poor man with minor daughters. Requested to take lenient view. Submission of the learned defence counsel seems to be reasonable one. Petitioner was apprehended while carrying adulterated milk in the year 1988. Conviction of the lower Court was upheld by the Sessions Court vide order dated 1.2.2000 petitioner was directed to be released on bail. Meaning thereby, the petitioner remained in custody for more than two months, petitioner is a poor man. Only four Kg milk was being carried for public sale. Ends of justice would be met if the petitioner is ordered to undergo imprisonment already undergone instead of directing him to undergo imprisonment as ordered by the First Appellate Court. Impugned order is modified. Petitioner is sentenced to imprisonment already undergone by him and to pay a fine of Rs.5000/- more as fine. Rs.5000/- is to be deposited within two months with the trial Court. With the above observation Criminal Revision stands disposed of 5.2.2009 ( JORA SINGH ) Anoop JUDGE