Crl. Revision No.1473 of 2004. 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Crl. Revision No.1473 of 2004. DECIDED ON : 08.05.2009. Ram Petitioner VERSUS State of Haryana. Respondent. Respondent. CORAM HON'BLE MR. JUSTICE JORA SINGH Present: Mr.Gurnam Singh, Mr. Sanjay Pal Singh and Mr. Virender Partap Singh, Advocates, for the petitioner. Ms. Rajat Goyal, Assistant Advocate General, Punjab for the respondent. JORA SINGH,J. Ram son of Chaman Lal, through the instant revision has challenged the impugned judgment dated 15.7.2004, rendered by the Additional Sessions Judge, Panipat. Vide the impugned judgment, appeal against the judgment dated 14.6.2000, passed by the Chief Judicial Magistrate, Panipat, was dismissed, whereby the Crl. Revision No.1473 of 2004. 2 revisionist was convicted under Section 16(1)(a)(i) read with Section 7 of the Prevention of Food Adulteration, Act 1954 and was sentenced to undergo rigorous imprisonment for a period of one year and to pay a fine of Rs.2000/-. In default of payment of fine, to further undergo rigorous imprisonment for three months. Prosecution story, in brief, is that Teja Singh, Food Inspector along with Dr. Arun Sehgal, Medical Officer, General Hospital, Panipat while present on 25.10.1991 at 9 A.M., intercepted the accused at Court road while in possession of 30 kgs of cow milk containing in two drums. Food Inspector demanded a sample of cow milk by issuing notice in Form VI prescribed under the Act. 750 ML of cow milk was purchased against payment of Rs.3/- vide receipt Ex.PB. Notice Ex.PA and receipt Ex.PB were signed by the revisionist. Sample was purchased which was divided into three equal parts and bottled into three dry, clean and empty bottles. Two drops of 40% formalin per 25 mls were added in each of the bottles as preservative. The bottles were stoppered tightly and sealed on the neck with the seal of the Medical Officer and the same were labelled and wrapped in a strong thick paper and the ends of the paper were pasted with gum, a paper slip Crl. Revision No.1473 of 2004. 3 bearing code No. KN-CS-/FI-I/FI-2/305 and signature of the Local Health Authority was pasted on each bottle from top to bottom. Each bottle was secured by means of strong twine and sealed with the seals of the Medical Officer and the Food Inspector at the spot. Signature of the accused was obtained in such a manner that both the paper slip and the wrapper on each sealed sample bottle carry a part of his signature. One sealed sample bottle along with a memorandum in form VII was sent to the Public Analyst, Haryana, Chandigarh, for analysis and the other two sealed bottles along with two copies of memo in form No.VII were deposited with the Local Health Authority, Karnal in a sealed packet. A copy of the memo in form VII and the specimen impression of the seals used to seal the sample and the packet were sent to the Public Analyst, Haryana, Chandigarh separately by registered post. The certificate of the Public Analyst, Haryana, Chandigarh shows the sample as milk fat 37.8% deficient and milk solids not fat 7% deficient of the minimum prescribed standard and in this manner, the milk sample does not conform to the standard prescribed under the Rules. Complaint was presented in Court by the Food Inspector. Revisionist was summoned. Crl. Revision No.1473 of 2004. 4 In pre-charge evidence, Dr. Arun Sehgal and Teja Singh, Food Inspector appeared. After that, the revisionist was charged under Section 7 read with Section 16(1)(a)(i) of the Prevention of Food Adulteration Act, 1954, to which he pleaded not guilty and claimed trial. After charge, Food Inspector Teja Singh was recalled for further cross examination. Lal Singh as PW- 3 and Dr. Arun Sehgal, also appeared as witnesses on behalf of the complainant. After the close of prosecution evidence, the revisionist was examined under Section 313 Cr.P.C. to explain the allegations. Revisionist denied all the allegations and claimed to be innocent. Defence version of the revisionist is that he was falsely implicated. Opportunity was given to lead defence, but no defence was led. Ultimately, the revisionist was convicted and sentenced by the learned Chief Judicial Magistrate, Panipat as stated above. Feeling dissatisfied with the judgment of the trial Court, appeal was preferred but the same was also dismissed vide the impugned judgment. I have heard Mr. Gurnam Singh, Advocate, Crl. Revision No.1473 of 2004. 5 learned counsel for the revisionist, Ms. Rajat Goyal, Assistant Advocate General, Haryana, for the respondent and have gone through the file very carefully and thoroughly. Learned counsel for the revisionist argued that case was tried as warrant case and not as summons case. Sample purchased was not made homogeneous. No independent witness was joined. Mandatory provision of Act was not complied with. Learned counsel for the revisionist lastly argued that occurrence is dated 25.10.1991. At that time, revisionist was having five small children besides aged parents to support. Revisionist is a poor person and has already undergone more than five months out of the actual sentence. So, lenient view be taken and he be released on probation. Ms.Rajat Goyal, Assistant Advocate General, Haryana, for the State argued that proper procedure was adopted by the trial Court. No prejudice was caused to the revisionist. If complaint case was tried as warrant case, then full opportunity was given to the revisionist to cross examine the witnesses. Sample was purchased and made homogeneous. Offer was made to join independent witness, but no one was available. No objection, if lenient view is taken keeping in view this Crl. Revision No.1473 of 2004. 6 fact that revisionist has already undergone more than five months. First submission of learned counsel for the revisionist was that complaint under the pure Food Act was to be tried in a summary way. Summons case procedure is to be adopted but the complaint was tried as a warrant case. Revisionist was prejudiced but submission of the learned defence counsel carries no weight. After appearance of the revisionist, file shows that the complaint was to be tried as a warrant case. In the presence of revisionist, witnesses were examined. Full opportunity was given to the revisionist to cross examine them. Opportunity was also given to produce defence. Complaint is not to be dismissed if complaint is tried as a warrant case instead of summons case. Purpose is to afford an opportunity to the accused to cross examine the witnesses. When full opportunity was given to the accused to defend himself, then on mere technicalities, story of the prosecution is not to be ignored. Second submission of learned counsel for the revisionist was that before purchasing sample, contents of the drums were not stirred properly Sample purchased is not representative sample but submission Crl. Revision No.1473 of 2004. 7 of the learned counsel for the revisionist is not correct one. Witnesses appeared in Court categorically stated that before purchasing sample, contents of the drums were stirred properly and this fact was recorded in the spot memo also. No suggestion was given to the witnesses that contents of the drum were not made homogeneous before sending the same for analysis. Milk contained in both the drums was mixed properly and stirred before lifting the sample. Then nothing to opine that representative sample was not sent to laboratory for analysis. It was held in number of authorities that when as per report milk fat is found in excess of the minimum prescribed standard and milk solids not fat, are below the prescribed standard, then on this short ground, complaint is not to be quashed. Next submission of the learned defence counsel was that independent witness was not joined. Non joining of independent witnesses is fatal but submission of the learned counsel for the defence is not correct one. File no where shows that independent witnesses were available and without any reason, they were not joined. Suppose independent witnesses available are not joined then on this ground, the story is not to be ignored. Independent witness present on the spot could easily be Crl. Revision No.1473 of 2004. 8 produced in defence . Before the occurrence, Food Inspector or the Doctor had no enmity with the revisionist. There was no idea to choose the revisionist for false implication. If there was false implication, then revisionist could easily send complaint to different authorities. There was no idea to remain silent. Till today, no complaint to any authority. No respectable person appeared in defence to state that case is false. Moreover, common experience shows that when independent witnesses are joined, then they fail to appear in Court, and if appear in Court, then fail to support the prosecution story. Independent witnesses joined are normally given up as won over by the accused and after that, they appear in defence. When Food Inspector and the Doctor had no enmity with the revisionist, then why to disbelieve them. Last submission of the learned defence counsel for the revisionist was that lenient view be taken because the revisionist has already undergone about five months out of the actual sentence of one year. Admittedly, occurrence was on 25.10.1991, revisionist has children and old parents to support. He is a poor man. Revisionist is to become hard criminal, if sent to jail again to undergo imprisonment, as ordered by the Crl. Revision No.1473 of 2004. 9 trial court. Opportunity should be given to the revisionist to improve himself. Keeping in view the circumstances mentioned above, I am of the opinion that the ends of justice would be fully met, if the revisionist is directed to undergo imprisonment already undergone by him and to pay Rs.10, 000/- more as fine and order accordingly. Fine is to be deposited within two months before the learned Chief Judicial Magistrate, Panipat, failing which this revision shall stand dismissed and in that eventuality, the revisionist is to undergo imprisonment, as ordered by the trial Court. Accordingly, this revision stands disposed of. 08.05.2009 ( JORA SINGH ) Anoop JUDGE