Crl. Revn. No.1532 of 2002 --1-- IN THE HIGH COURT OF PUNJAB & HARYANA, CHANDIGARH Crl. Revn. No.1532 of 2002 Date of decision. 20.03.2009 Ramesh Chand son of Kanhaiya Lal, resident of Khera, Tehsil and District Mahendergarh. ....... Petitioner Versus State of Haryana ........ Respondent CORAM: HON'BLE MR. JUSTICE SHAM SUNDER Present:None for the petitioner. Mr. P.S. Sullar, DAG, Haryana for the respondent. **** Sham Sunder, J. This revision-petition is directed against the judgment dated 26.07.2002, rendered by the Court of Additional Sessions Judge, Narnaul, vide which it dismissed the appeal, against the judgment of conviction and the order of sentence Crl. Revn. No.1532 of 2002 --2-- dated 30.10.2000, rendered by the Court of Sub Divisional Judicial Magistrate, Mohindergarh, convicting the accused, for the offence, punishable under Section 2(ia)(J) read with Section 16(1)(a) (i) of the Prevention of Food Adulteration Act, 1954 (hereinafter referred to be as the 'Act' only) and sentenced him to undergo RI for a period of one year, and to pay a fine of Rs.1000/-, in default of payment of the same, to undergo further rigorous imprisonment, for a period of three months. 2. The facts, in brief, are that on 20.01.1989 at about 1.00 PM, Megh Nath, Government Food Inspector, alongwith Dr. M.P. Lamburia, went to the shop of the accused, namely Ramesh Chand, situated in village Khaira. The accused was present, at his shop. He was keeping 3 Kgs. Dal Moong Dhuli, for public sale. After disclosing his identity, the Government Food Inspector, expressed his intention to take sample of Dal,aforesaid. He served notice upon the accused. Thereafter, he purchased 750 grams of aforesaid Dal as sample. At that time, one Laxminarain, independent witness was joined with the investigating Agency. The Crl. Revn. No.1532 of 2002 --3-- sample was divided into three equal parts, and packed in three dry clean and empty bottles. The bottles were stoppered, labelled and then wrapped, in a strong thick paper. One sealed bottle of the aforesaid sample, was sent to the Public Analyst, Haryana, Karnal, who found the same to be adulterated. Thereafter, the prosecution was launched against the accused. 3. On his appearance, the accused was supplied a copy of the complaint and other relevant documents, under the provisions of law. 4. In pre-charge evidence, Megh Nath, Government Food Inspector,(PW-1) was examined, who reiterated the allegations, levelled in the complaint. Thereafter, the pre-charge evidence was closed. 5. After hearing the Counsel for the parties, and, on going through the pre-charge evidence, the trial Court, found that a prima-facie case was made out, for the commission of offence, punishable under Section 2((ia)(J) read with Section 16(1-A) of the Act, against the accused. Accordingly, charge was framed against him, to which he pleaded not guilty and claimed judicial Crl. Revn. No.1532 of 2002 --4-- trial. He also stated that he wanted to cross- examine the witness, examined before charge. 6. In the after charge evidence, Megh Nath,Government Food Inspector, was cross-examined. He also proved various documents. Dr. Shish, DHO, Gurgaon, appeared as PW-2. Dr. H.P. Lamburia, who was with Megh Nath, Government Food Inspector, at the time of drawing the sample, appeared as PW-3. Laxminarain, independent witness, who was joined, at the time of taking the sample, was given up, as won over by the accused. Thereafter, the after charge evidence was closed, by the complainant. 7. The statement of the accused, under Section 313 of the Code of Criminal Procedure, was recorded. He was put all the incriminating circumstances, appearing against him, in the evidence of the complainant. He pleaded false implication. He, however, did not lead any evidence, in defence. 8. After hearing the Counsel for the parties, and, on going through the evidence, on record, the trial Court, convicted and sentenced the accused, as stated hereinbefore. Crl. Revn. No.1532 of 2002 --5-- 9. Feeling aggrieved, against the judgment of the trial Court, an appeal was preferred by the accused-appellant, which was dismissed vide judgment dated 26.07.2002, by the Court of Additional Sessions Judge, Narnaul. 10. Still feeling dis-satisfied, the instant revision petition, was filed by the revision-petitioner. 11. On 17.03.2009 Mr. Paramjit Jakhar, proxy Counsel for Mr. N.S. Shekhawat, Advocate for the revision-petitioner, put in appearance and sought a date, on the ground, that the arguing Counsel was busy before some other Bench. The prayer was allowed, and the revision-petition was adjourned to 18.03.2009, for arguments. On 18.03.2009, none appeared, on behalf of the revision-petitioner, despite due notice, that the revision-petition was fixed for final hearing. In these circumstances, the question arose, as to whether the revision-petition could be disposed of, on merits in the absence of the Counsel for the revision-petitioner. In Madan Lal Kapoor v. Rajiv Crl. Revn. No.1532 of 2002 --6-- Thapar and others 2007(4) RCR (Criminal) 157 (Supreme Court), it was held that revision petition could be decided, on merits, if none appears, on behalf of the revision-petitioner, despite service of notice. Similar principle of law, was laid down in Bani Singh v. State of Uttar Pradesh, 1996(3) RCR (Criminal) 201 (SC), and Dharampal v. State of UP, 2008(1) Law Herald (SC) 225. In this view of the matter, I am going to dispose of the revision- petition on merits. 12. I have heard the Counsel for the respondent,and have gone through the evidence, record of the case, and the judgments of the Courts below, carefully. 13. The Courts below, on correct appreciation of the cogent, convincing, reliable and trust-worthy evidence of Megh Raj, Government Food Inspector, (PW-1), who drew the sample from Moong Dal, being kept by the accused, for human consumption, Dr. M.P. Lamburia, (PW-3), who was present alongwith Mr. Megh Nath, Government Food Inspector and report Ex.PG of the Public Analyst,who found the sample to be adulterated Crl. Revn. No.1532 of 2002 --7-- being coloured with added Tartrazine coaltar dye of yellow shade, rightly came to the conclusion, that the accused committed the offence, punishable under Section 16(1)(a)(i) of the Act. It is settled principle of law, that the Court, in its revisional jurisdiction, cannot re-evaluate and re-appreciate the evidence, produced by the parties, until and unless, it comes to the conclusion, that the findings recorded by the Courts below, are perverse or erroneous, on account of mis-reading of evidence. The careful perusal of the judgments of the Courts below, in context with the evidence, produced by the complainant, does not indicate that the findings of guilt, recorded by the Courts below, are either perverse or illegal or erroneous on account of mis-reading of evidence. There is, therefore, no warrant to interfere with the judgment of conviction recorded by the trial Court, and affirmed by the Appellate Court. 14. It is evident from the record, that, at the time of issuance of notice of motion, on 02.08.2002, the Counsel for the revision- petitioner, contended that Tartarzine sunset yellow FCF colour as also Tartarzine coal tar dye of Crl. Revn. No.1532 of 2002 --8-- yellow shade was permissible in the food articles, as per Rule 28 of the Prevention of Food Adulteration Rule, 1955 and, as such, the conviction of the petitioner was wholly illegal. Rule 28 of the Act reads as under:- “28. Synthetic food colours, which may be used. No synthetic food colours or a mixture thereof except the following shall be used in food: Sr.No. Colour Common name Colour Index (1956) Chemical Class 1 2 3 4 5 1 Red Ponceau 4R Carmoisine Erythrosine 16255 14720 45430 Azo Azo Xanthene 2 Yellow Tartrazine Sunset Yellow FCF 19140 15985 Pyrazolone Azo 3 Blue Indigo Carmine Brilliant Blue FCF 73015 42090 Indigoid Triarylmethane 4 Green Fast Green FCF 42053 Triarylmethane As per item 2, given in the table above, under Rule 28 of the Rules, only Tartrazine Sunset Yellow FCF colour is admissible, in the food articles. Tartarzine coal tar dye of yellow shade colour is not permissible, in the food articles. The Public Analyst was, thus, right in coming to Crl. Revn. No.1532 of 2002 --9-- the conclusion that the sample was adulterated, on account of the addition of Tartarzine coal tar dye. Such a contention, which was raised by the Counsel for the revision-petitioner, at the time of issuance of notice of motion, thus, was not based on the correct reading of Rule 28 of the Rules and, as such, no help can be drawn by the revision -petitioner from the said Rule, to support his contention, that the sample was not adulterated. 15. Laxminarayan, independent witness, was joined, in this case, but was given up by the complainant, as having been won over by the accused. There was, thus, compliance with the provisions of 10(7) of the Act. He, however, joined hands with the accused, during the course of trial of the case, and, as such, he was given up, as won over by the Government Food Inspector. It means that the Government Food Inspector, complainant, exercised the discretion, vested in him, in giving up Laxminarayan, independent witness, as won over by the accused, in a bona-fide manner. It could not be said that the discretion exercised by the Government Food Inspector, in giving up Laxminarayan, independent witness, as won Crl. Revn. No.1532 of 2002 --10-- over by the accused, was, in any way, arbitrary or capricious. The evidence produced by the complainant was rightly held to be reliable. In Masalti Vs. State of Uttar Pradesh, AIR 1965 (S.C.) 202, it was held that it is, undoubtedly, the duty of the prosecution to lay before the Court, all material witnesses, available to it, whose evidence is necessary for unfolding its case, but it would be unsound to lay down it, as a general rule, that every witness, must be examined, even though his evidence, may not be very material or, even if, it is known that he has been won over or terrorized. In Roop Singh Vs. State of Punjab 1996 (1) RCR 146, a Division Bench of this Court, held that no adverse inference can be drawn, when the only independent witness, was given up by the prosecution, as won over by the accused. It was further held, in the said authority, that the panch witnesses, being human beings, are quite exposed and vulnerable to human feelings of yielding, browbeating, threats and inducements, and giving up of the public witnesses, as won over, is fully justified, in the present day situation, prevailing Crl. Revn. No.1532 of 2002 --11-- in the society. In Karnail Singh Vs. State of Punjab 1983 Criminal Law Journal, 1218, a Division Bench of this Court, held that where the independent witness, was won over by the accused, and only the officials witnesses, were examined, who were considered to be not interested persons, their evidence cannot be doubted, on the ground of their official status. The principle of law, laid down, in the said authorities, is fully applicable to the facts of the present case. This ground, therefore, does not hold good, and the same stands rejected. 16. For the reasons recorded above, the revision-petition, being devoid of merit, is dismissed. The judgment of conviction, and the order of sentence, dated 30.10.2000, rendered by the Court of the Sub Divisional Judicial Magistrate, Mohindergarh, and the judgment dated 26.07.2002 rendered by the Appellate Court, affirming the judgment of the trial Court, are upheld. If the revision-petitioner is on bail, his bail bonds shall stand cancelled. Crl. Revn. No.1532 of 2002 --12-- 17. The Chief Judicial Magistrate, shall take necessary steps, to comply with the judgment promptly,in accordance with the provisions of law, on receipt of a copy thereof. March 20,2009 (SHAM SUNDER) dinesh JUDGE