Criminal Revision No.1454 of 2000 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Revision No.1454 of 2000 Date of decision: March 04, 2008 Giri Raj … Petitioner Versus State of Punjab … Respondent CORAM: HON’BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA Present: Mr. Prem Kumar, Advocate with Mr. Kuldeep Singh, Advocate for petitioner. Mr. Mehardeep Singh, Assistant Advocate General, Punjab for the State. KANWALJIT SINGH AHLUWALIA, J. (Oral) Petitioner was convicted by the Court of Chief Judicial Magistrate, Mansa under Section 16(1)(a)(i) of Prevention of Food Adulteration Act, 1954 to undergo RI for a period of one year and to pay a fine of Rs.3000/-, in default of payment of fine to undergo further RI for three months. Petitioner had filed an appeal and the same was also dismissed on 20th November, 2000. This revision petition was filed by Mr.Kuldeep Singh and various orders reveal that nobody had put in appearance and this Court had requested the registry to appoint amicus curiae. Mr.Prem Kumar has put in appearance for the petitioner as amicus curiae. At this juncture, Mr.Kuldeep Singh, counsel for the petitioner has also appeared and has Criminal Revision No.1454 of 2000 2 regretted for his absence to conduct the case. However, he has stated that he may be given an opportunity to assist Mr.Prem Kumar, who has prepared the case as an amicus curiae. Mr.Prem Kumar assisted by Mr.Kuldeep Singh has stated that they will not be in a position to contest conviction of petitioner as they have perused the record and are of the firm view that all necessary rules regarding procedure of taking the sample were followed. They further stated that they will not be able to point out any illegality and infirmity in the orders of two courts below. It has been very fairly stated that except an argument that independent witness was not called at the time of taking sample, there is no other argument available in their arsenal. Since two courts below have observed that even though independent witness was not examined, the fact that testimony of official witness is trustworthy, they will not be in a position to press argument that non-examination of independent witness is fatal to the prosecution. They have prayed that they may be allowed to modify their prayer and prayed for reduction in the sentence. In the present case, the case of the prosecution is that on 14th July, 1994 at about 11.10 a.m., Govt. Food Inspector, Dr.K.K.Singla had inspected the premises of Giri Raj petitioner, situated at Gaushala Road, Mansa. He had purchased a sample of Desi Ghee (Gopal) after giving due notice. Out of 1 kg plastic tin, 450 gms Desi Ghee was purchased from the petitioner and it was sealed in three equal parts in dry and clean bottles. On the each bottle, petitioner had signed. No request was made under Section 20-A at the initial stage of the trial to implead the manufacturer as an accused. However, after prosecution evidence was concluded, in the defence Ex.DA Bill was tendered to show that Ghee has been manufactured by Punjab Specialists Food, Amritsar. Neither at the time of taking sample, as per the counsel, Criminal Revision No.1454 of 2000 3 name of the manufacturer was disclosed to the Food Inspector, nor Section 20-A was invoked at the earlier stage. The argument raised whether Ex.DA can be construed as warranty and petitioner, who is a retailer, can be absolved of offence, has been dealt with by the lower appellate Court in para 18 of its judgment. The same is reproduced below: “18. It was next submitted by the counsel for the appellant, that the accused tendered into evidence Ex.DA, the bill in the form of Warranty. He further submitted that Ghee was in a sealed tin when the sample was taken there from. He further submitted that the ghee was stored and kept in the same manner in which it was purchased at the time of taking of sample and as such Giri Raj, vendor, who is appellant was absolved of his liability and only the manufacturer and the distributor could be fastened with criminal liability. It is no doubt, true that Ex.DA a photo copy of the bill was produced on record. It was not proved in accordance with the provisions of law. Ex.DA is not a Warranty, Rule 12-A of the Rules lays down that every manufacturer, distributor or dealer selling the article of food to a vendor shall give either separately or in the bill cash memo or label, a warranty in Form VI-A prescribed in Rule 12-A. There is no specific mention in Ex.DA by the dealer distributor or the manufacturer that the article of food sold was in the same nature and quality of the article of food sold was in the same nature and quality of the article of food, as the case may be. No terms and conditions are contained in Ex.DA. Under these circumstances, such a document cannot be considered to be a Warranty sufficient to absolve the appellant of his criminal liability. A similar question arose in M/s Murlidhar Shamlal and another vs. State of Assam 1996 (1) RCR 538 (SC). The Hon'ble Supreme Court in clear terms stated that the vendor of the article has to prove that he purchased the article of food with a written warranty. There must be specific mention therein by the dealer or distributor or manufacturer, that the article of food, sold was in the same nature and quality of the article of food, as the Criminal Revision No.1454 of 2000 4 case may be. It was further held in the aforesaid authority that in case such mention is not made in the bill or warranty by the dealer distributor or manufacturer then vendor is not absolved of his criminal liability, under the Act. The principle of law, laid down in the aforesaid authority, is fully applicable to the facts of the present case. As stated above, there is no mention in Ex.DA in respect of the aforesaid facts. No help, can be drawn by the counsel for the appellant there-from.” Counsels appearing for the petitioner are unable to satisfy this Court as to why at the first opportunity, when the sample was taken or in the trial Court, as to why the name of the manufacturer was not disclosed at the first available opportunity. At this stage, counsels state that petitioner was taken into custody on 20th November, 2000 and was released on bail by this Court on 28th February, 2001. Thus, petitioner has undergone about 100 days of his actual sentence of one year. It has been further stated that in the present case, occurrence pertains to year 1994. A period of more than 13 years is going to elapse. Mr.Kuldeep Singh has further stated that during this period, petitioner has not committed any other offence. Even though, minimum sentence of six months is prescribed under the Act, this Court, since 1997 in various judicial pronouncements, has taken a consistent view that the protracted trial can be taken not only as a mitigating circumstance, but as a special circumstance for reduction of the sentence. Taking into account the protracted trial and antecedents of the petitioner, ends of justice will be met in case his sentence is reduced to already undergone. Sentence of the petitioner is reduced to already undergone. However, sentence of fine is enhanced to Rs.10,000/-. Fine shall be deposited within a period of three months from today. Criminal Revision No.1454 of 2000 5 Non deposit of fine by the petitioner shall render the present revision petition as dismissed. [Kanwaljit Singh Ahluwalia] Judge March 04, 2008. rps