Criminal Revision No.365 of 2001 (O&M) [1] IN THE HIGH COURT FOR THE STATES OF PUNJAB & HARYANA AT CHANDIGARH ... Criminal Revision No.365 of 2001 (O&M) Decided on : August 24, 2010 Joginder Singh ... Petitioner VERSUS State of Haryana ... Respondent CORAM : HON'BLE MR.JUSTICE A.N.JINDAL Present: Mr.Kamal Sharma, Advocate for the petitioner. Mr.Amandeep Singh, Assistant Advocate General, Haryana A.N.JINDAL, J.- Having suffered a jolt from both the courts below, wherein, the conviction of the accused – petitioner Joginder Singh (herein referred as `the accused') under Sections 7 and 16(1)(a)(i) of the Prevention of Food Adulteration Act, 1954 (for brevity `the Act') was maintained, the accused has come up in revision. On 12.9.1986 at about 8.30 AM, the Government Food Inspector intercepted the accused at Gohana Road, Pilukhera and found him in possession of 25 kilograms of cow milk for public sale. After disclosing his identity and serving a notice on Form-VI, he purchased 750 milliliters of cow milk for a sum of Rs.3/- and after completing all the formalities, the purchased milk was divided into three equal parts and then after adding required preservatives, the same was poured in three clean and dry bottles, Criminal Revision No.365 of 2001 (O&M) [2] which were wrapped and sealed according to law. Paper slips bearing Code number was also affixed. One part of the sample in sealed cover along with the memorandum and Form-VII was sent to the Public Analyst, Haryana Chandigarh separately and remaining two parts of the sample were deposited with the Local Health Authority. The specimen impression of the seal along with a copy of memorandum in Form-VI was also sent to the Public Analyst, Haryana, Chandigarh separately. On receipt of the report of the Public Analyst, which indicated the deficiency in milk solids not fat to the extent of 12%, the complaint was preferred. After recording the preliminary evidence in the form of statement of the complainant (PW1), the accused was summoned. Charge was framed against him and, thereafter, Dr.(Mrs.) J.Chandna (PW2) and Satpal Sheokand (PW3) clerk in the office of the Local Health Authority were examined. Complainant (PW1) had also appeared for further examination. In his statement under Section 313 of the Code of Criminal Procedure, the accused denied all the incriminating circumstances appearing against him and pleaded his false implication in the case. The Trial Court vide judgment dated 24/25.11.1998 convicted and sentenced the accused to undergo rigorous imprisonment for one year and to pay fine of Rs.1000/- under Section 7 read with Section 16(1)(a)(i) of the Act. The appeal preferred by him was also dismissed on 16.2.2001 maintaining his conviction, however, reducing the sentence to six months. As regards the contention that the accused was deprived of his right under Section 13(2) of the Act, it does not weigh with the mind of this Court. No weight could be attached to the argument that mere sending of Criminal Revision No.365 of 2001 (O&M) [3] the report to the accused is not significant, but receipt of the report is also to be established, as the record transpires that a notice along with the report of the Public Analyst was sent to the accused. Shri Satpal Sheokand (PW3), Clerk in the office of the Local Health Authority has proved the sending of the report under registered cover on 17.11.1986. He has proved the postal receipt (Ex.PW3/A) and that the acknowledgment due was not received back. The well-settled proposition of law is that when one says that the document is dispatched on the correct address, then the presumption would be that the same had been received by the addressee, unless proved otherwise. The onus is upon the accused to prove that either the address was not correct or the post was received by some other person than the accused or the envelope was blank or the document did not convey about his right. In the absence of the proof of any of the aforesaid circumstances, the presumption would be treated as not rebutted. In any case, on receipt of the copy of the complaint, the accused was to appear on 17.12.1986 and he could avail the right of re-analysis at that time also, but he chose not to exercise that option. Thus, the accused cannot be said to have been deprived of his right as provided under Section 13(2) of the Act. As far as the argument with regard to the stirring of the milk is concerned, Dr.(Mrs.) J. Chandna (PW2) has categorically stated in her statement that there was about 15 kilograms of milk in the drum and the same was stirred properly. Similarly, the complainant Shri Kali Ram (PW1) is also consistent regarding stirring and making it homogeneous and, thereafter, making purchase of the same. It has normally been seen that the people, who bring buffalo's milk extract fat or cream out of it and when it becomes of lesser standard, they sell it representing it as of cow's milk. Criminal Revision No.365 of 2001 (O&M) [4] In this way, they in order to earn more money throw non-standardized milk in the market after extracting its qualitative produce. In the Full Bench judgment of this Court in case State of Punjab vs. Teja Singh, 1977 F.A.J. 237, it has been laid down that it is not permissible to add the percentage of various constituents of milk disclosed by the Public Analyst and to deduce a conclusion therefrom about the over-all deficiency or otherwise of the milk. The Court is not entitled to assume a slight or reasonable margin of error in the conclusion recorded by the Public Analyst. Negligible or marginal deviation from the prescribed standard cannot be ignored. Thus, the argument that since the percentage of the milk fat was in excess of the prescribed standard, would be said to be persuasive to take the case out of the term of `adulterated food article'. It may be mentioned that according to the definition of “adulterated” as given in Section 2 of the Act, if the quality or purity of the article falls below the prescribed standards or its constituents are present in quantities not within the prescribed limits of variability, the same is “adulterated”. Hence, while deriving the ratio from the observations made by the Full Bench judgment, as referred to above, the milk in question being not in conformity with the prescribed standard can certainly be said to be adulterated. The argument that the case was not tried as a warrant case, but was tried in a summary manner, is also without merit. The accused was tried as a warrant case. As a matter of fact, the Chief Judicial Magistrate, Jind vide order dated 29.9.1988 had sent the case to the Sub Divisional Judicial Magistrate, Safidon with a direction to try it as a regular warrant case. Consequently, the Sub Divisional Judicial Magistrate vide order dated 4.11.1988 passed the following order:- Criminal Revision No.365 of 2001 (O&M) [5] “Present: Sh.Sube Singh, TSI for the State. Accused on bail with counsel. File has been received back with the direction that the case is to be tried as warrant case. As there was no order earlier that whether the case was tried as summons case or as warrant case which is required under the Food Adulteration Act, 1954, so the earlier proceedings were not in conformity with the provisions of the F.A.Act and after the passing of order dated 29.9.88, the case is to be tried again as warrant case. In such circumstances, fresh evidence is to be received from the pre-charge stage. So, now the case to come up on 10.2.89 for the evidence of the complainant. Sd/- SDJM/Safidon 4.11.88” Thus, in the light of the order dated 4.11.1988 passed by the Chief Judicial Magistrate, Jind, the argument raised by the accused, at this stage, cannot be sustained. The counsel for the accused has repeatedly stressed for minutely appreciating the evidence, and by taking into consideration the contradictions, ignore the statements of the prosecution witnesses. I have scrutinized the judgments of both the courts below. The same has been passed after meeting the material points. The High Court in its revisional jurisdiction has very limited scope of interference. It cannot re-evaluate and re-appreciate the evidence produced by the parties, unless and until it comes to the conclusion that the findings recorded by the courts below are perverse, erroneous or on account of misreading of evidence. No such defect, illegality or irregularity in the procedure has been pointed out, so as Criminal Revision No.365 of 2001 (O&M) [6] to dub the judgment under challenge to be perverse, arbitrary and without application of mind. Thus, I hasten to further scrutinize the evidence minutely. It would be suffice to say that all the material witnesses available to the complainant to unfold the case have been produced in the court and the court after examining the evidence and evaluating the same on the altar of credibility and reliability preferred to place reliance upon them. Now, coming to the quantum of sentence, it is observed that it was the accused, who was responsible for delay in trial as he preferred Criminal Misc.No.2140-M of 1989 before this Court for quashing the charge on 9.3.1989, which remained pending here till 6.2.1997, he does not deserve any concession. The day in and a day out, the clever businessmen find a device to earn easy money by illegal means, which results into cheating of not only an individual, but the society as a whole, to whom they sell their deficient goods. As such, the concession in the sentence, in the given circumstances of the case, would amount to doing injustice to the whole society. For the aforesaid reasons, finding no merit in the revision, the same is dismissed. August 24, 2010 ( A.N.JINDAL ) `gian' JUDGE