Crl. Revision No. 1123 of 2003 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Crl. Revision No. 1123 of 2003 Date of decision: January 7, 2011 Roshan ...Appellant Versus State of Haryana ...Respondent CORAM:- HON'BLE MR. JUSTICE GURDEV SINGH Present: Mr. Ashwani Talwar, Advocate, for the petitioner. Mr. Shekhar Mudgal, AAG, Haryana. GURDEV SINGH, J. The petitioner/accused Roshan was tried for the offence under Section 16 (1) (a) (i) of the Prevention of Food Adulteration Act, 1954 (hereinafter referred to as 'the Act'), by the Chief Judicial Magistrate, Panipat and was convicted and sentenced to undergo rigorous imprisonment for a period of six months and to pay a fine of ` 1,000/- and in default thereof to further undergo rigorous imprisonment for a period of one month. He preferred an appeal against that conviction and sentence but the same was dismissed by the Additional Sessions Judge, Panipat, vide judgment dated 15.5.2003. Now he has preferred the present revision against that conviction and sentence. A.N. Sharma-complainant (PW-1), who was appointed as Food Inspector by the Haryana Government, vide notification dated 9.6.1970, intercepted the accused on 26.12.1992 at about 10 a.m. and at that time, he Crl. Revision No. 1123 of 2003 2 was found in possession of about 80 letres of buffalo milk for public sale contained in four containers. The complainant was accompanied by K.R. Sarawal, Medical Officer, in whose presence, he served a notice in form No. IV Ex. PA showing his desire to purchase the milk for the purpose of analysis. Jagat Singh was joined as independent witness. He purchased 750 ml of milk, after mixing the contents of drums and making the same uniform, for a price of ` 5/- against receipt Ex. PB. That milk was divided into three equal parts and all those parts were put in three different bottles. 20 drops of formaline 40% were added as preservative in each bottle. Those were stoppered, packed, securely fastened and wrapped and were duly sealed by the complainant. Specimen impression of the seal was also prepared. Three copies of form VI were prepared, including Ex. PC. All those documents were duly signed by the accused. Two parts of the sample and two copies of form VI were deposited with the Local Health Authority, Panipat. The third part of the sample, alongwith specimen impression of the seal and form VI, was sent to the Public Analyst, who after analysis, reported, vide his report PD, that the milk fat was deficient by 33% and, as such, the same was not as per the minimum prescribed standard. The copy of the report was duly served upon the accused alongwith covering letter. He never approached the CJM for sending the other part of the sample to the Central laboratory for analysis. The complaint was filed by the complainant before the CJM. As the complaint was filed by the Public Servant in the discharge of his official duties, so the accused was summoned to stand his trial for the aforesaid offence without recording any preliminary evidence. On appearance of the accused in the court, the complainant appeared himself in the witness box as PW-1 in the pre-charge evidence. From that Crl. Revision No. 1123 of 2003 3 evidence, the CJM found sufficient grounds for presuming that the accused committed an offence punishable under Section 16 (1) (a) (i) of the Act. He was charged accordingly, to which he pleaded not guilty and claimed trial. After framing of the charge against the accused, an opportunity was granted to him to further cross-examine the complainant which was availed by him. After examining Ram Singh Steno as PW-2 the complainant closed his evidence. After the close of the evidence of the complainant, the accused was examined and his statement was recorded by the CJM, under Section 313 the Criminal Procedure Code. All the incriminating circumstances appearing against him in the prosecution evidence were put to him in order to enable him to explain the same. He denied all those circumstances and pleaded that he was having in his possession the cow milk and even that fact was mentioned on the drums. The Food Inspector wrongly mentioned that it was buffalo milk. The contents of the documents Exs. PA, PB and PC were not disclosed to him in Hindi. The accused was called upon to enter on his defence and he examined Om Parkash (DW-1), Jai Pal Singh (DW- 2), Jagat Singh (DW-3) and Suraj Parkash (PW-4). After going through the evidence, so produced and hearing counsel for both the sides, the CJM convicted and sentenced the accused, as aforesaid. I have heard learned counsel for both the sides. It has been stated by the learned counsel for the accused that the accused was having in his possession cow milk. That fact stands proved from the statement of the witnesses examined by him in his defence. That fact was also painted on the drums in which he was carrying the milk. The Crl. Revision No. 1123 of 2003 4 sample so taken was found conforming to the standard prescribed for the cow milk and, as such, it cannot be said that the accused committed any such offence. Jagat Singh was not examined by the prosecution and was examined by the accused in his defence and even from his statement it stands proved that it was cow milk which was being carried by the accused in the drums. He further submitted that no reliance can be placed on the statement of the complainant (PW-1) that the contents of the drums/containers were made homogenous before taking the sample as he no where stated that as to what type of instrument was used for stirring the contents and making the same uniform. According to him, the conviction of the accused cannot be recorded on the solitary statement of the complainant in the absence of any corroboration of his statement. He placed reliance on Rama Balawant Hegde versus Food Inspector, Nippani Municipality 2004 Crl. L.J. 3605. On the other hand, he has been submitted by the learned State counsel that it is very much clear from the contents of the complaint and the statement of the Food Inspector/complainant (PW-1) that it was the buffalo milk which was possessed by the accused for sale and the sample of the buffalo milk was taken. The accused is estopped from alleging that it was cow milk in view of the contents of the documents which were duly signed by him at the time sample was taken. One part of the sample was sent to the Public Analyst and it did not conform to the standard prescribed for the buffalo milk. It was correctly held by the trial court and the appellate court that the accused committed the offence under Section 16 (1) (a) (i) of the Act. There is no rule of law that before placing reliance on the statement of the complainant the same should be corroborated by some other evidence. Crl. Revision No. 1123 of 2003 5 The accused has not been able to extract any such circumstance during the cross-examination of the complainant on the basis of which it may be held that the statement so made in the court is not reliable. No doubt, it has mentioned in the complaint Ex. PE that the accused was having in his possession buffalo milk but it is not incorporated therein as to how the Food Inspector came to the conclusion that he was possessing such milk and not cow milk. Even while making the statement in the court, he did not depose about any such fact. It is not his statement that the accused made a representation that he was having buffalo milk for sale. When he was cross-examined he denied the suggestion that cow milk was written on the drums of the accused. He voluntarily added that nothing was written thereon. Then how he came to the conclusion, in the absence of any representation of the accused, that he was having buffalo milk. The witnesses examined by him in the defence have stated that he was selling only cow milk. Reference in that regard can be made to the statements of Om Parkash (DW-1), Jai Pal (DW-2) and Jagat Singh (DW-3), who was joined by the Food Inspector but was not examined by him in the court for corroborating his statement. He categorically stated that on the drums of the accused cow milk was written and that fact was also told by him to the Food Inspector. This witness was not examined by the complainant on the ground that he has been won over by the accused. Merely making of that statement in the court will not make this witness a condemned witness. His testimony was not challenged by cross-examining him on the aspects on which he made the statement. Only a suggestion was put that after siding with the accused he has made a false statement. His statement creates a doubt in the statement of the complainant that the accused was having in his possession Crl. Revision No. 1123 of 2003 6 buffalo milk. The accused has been able to prove that he was having in his possession the cow milk. In the report of the Public Analyst Ex. PD it has been mentioned that the milk fat was found to be 33% deficient. He found the milk fat to be 4% as per standard prescribed for the cow milk. The milk fat so far State of Haryana is concerned is required to be upto 4%. Therefore, it cannot be said that the sample was found to be adulterated. The trial court committed an illegality while recording finding to the contrary, which was endorsed by the appellate court. In the result, this revision is hereby accepted. The conviction and sentence of the accused is set aside. The fine, if already deposited, be refunded to him. Records be returned forthwith. January 7, 2011 (GURDEV SINGH ) prem JUDGE