Crl. Revision No 1493 of 2001. 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Crl. Revision No 1493 of 2001. DECIDED ON : Satish Kumar Petitioner VERSUS State of Haryana Respondent. CORAM HON'BLE MR. JUSTICE JORA SINGH Present: Mr.C.S.Verma , Advocate, for the petitioner. Mr. K.S.Godara, Deputy Advocate General, Haryana. JORA SINGH,J. Satish Kumar has filed this revision to impugn the judgment dated 29.9.2001 rendered by Additional Sessions Judge, Karnal. Vide which the appeal of the petitioner against the judgment/order dated 13.12.1999 passed by Chief Judicial Magistrate, Karnal, in Complaint under Section 7 read with Section 16(1) (a) (i) of the Prevention of Food Adulteration Act, 1954 was dismissed. Crl. Revision No 1493 of 2001. 2 Prosecution story, in brief, is that on 29.5.1991 at about 11.45 A.M. Mr. C.L. Sikri, Government Food Inspector along with R.P. Verma Medical Officer had intercepted the revisionist at bus stand Pundri. Revisionist was found in possession of 50 bottles of lemon carbonated sweetened water for public sale in three dalas. The Government Food Inspector after disclosing his identity had demanded a sample of lemon carbonated sweetened water by issuing a notice Ex .PA. 1600 MLS of lemon carbonated sweetened water was purchased against payment of Rs.12/- vide receipt Ex PB. After mixing whole contents properly and made it uniform for analysis, sample was divided into three equal parts. Each part was put into three dry, clean empty bottles. The bottles were stoppered tightly and sealed on the neck with the seal of Medical Officer. The bottles were labelled and wrapped with strong thick paper. A paper slip bearing code number and signatures of Local Health Authorities, Kaithal was pasted on each bottle from top to bottom and each bottle was secured by means of strong twins and sealed with the seal of Medical Officer and Food Inspector at the spot. Signatures of Satish Kumar were obtained in such a manner that it appeared both on paper slip and Crl. Revision No 1493 of 2001. 3 wrapper. Spot memo was also prepared at the spot and signed by the revisionist. One sealed bottle along with a memorandum on Form No. VII was sent to Public Analyst, Haryana, Chandigarh, for analysis in a sealed packet through special messenger. As per report Ex. PD by Public Analyst, sample was found to be adulterated. Sucrose 3.02% and Saccharine 124 PPM was found against the minimum and maximum prescribed standards of 5.0% and 100 PPM respectively. Public Analyst report was also sent to the Local Health Authority for compliance under Section 13(2) of the Act. Notice was issued to the revisionist. After appearance of the revisionist, pre charge evidence was recorded. After hearing learned APP for the complainant, defence counsel for the revisionist and also from the perusal of evidence on the file, trial Court opined that a prima facie case is made out to frame charge under Section 7 read with Section 16(1)(a)(i) of the Prevention of Food Adulteration Act, 1954, to which the revisionist pleaded not guilty and claimed trial. Evidence was led by the complainant after charge. After close of prosecution evidence, the Crl. Revision No 1493 of 2001. 4 revisionist was examined under Section 313 Cr.P.C. Revisionist denied all the allegations and pleaded to be innocent. Defence version of the revisionist was that two diabetic patients namely Ram Parkash and Raghbir gave order for lemon carbonated sweetened water and the same was not for sale. In defence, Raghbir was examined as DW-1. After hearing learned Public Prosecutor for the State, defence counsel for the revisionist and from the perusal of evidence on the file, trial Court had convicted the revisionist under Section 7 read with Section 16 of the Prevention of Food Adulteration Act, 1954 and sentenced to undergo rigorous imprisonment for two years and to pay a fine of Rs.2000/-. In default of payment of fine, he shall further undergo rigorous imprisonment for two months. Feeling dissatisfied with the order dated 13.12.1999 of Chief Judicial Magistrate, Kaithal, first appeal was preferred but the appeal was dismissed by the learned Additional Sessions Judge, Kaithal vide judgment dated 29.9.2001 under challenge. Learned counsel for the revisionist argued that as per story, revisionist was found in possession of 50 Crl. Revision No 1493 of 2001. 5 bottles of lemon carbonated sweetened water. 1600 MLS purchased was emptied in a jug but jug was not properly cleaned. Possibility of jug containing some Saccharine cannot be ruled out. Learned counsel further argued that no standard of lemon carbonated sweetened water has been fixed. Report of the Public Analyst no where shows that presence of 124 PPM saccharine was injurious to health. Occurrence is dated 29.5.1991. At that time, revisionist was about 40 years old. Revisionist remained in custody for about 20 days. Lenient view be taken and revisionist be released on probation. Mr. D.S.Brar, Deputy Advocate General, Punjab argued that recovery of 50 bottles of lemon carbonated sweetened water is an admitted fact. Only grievance is that against the order of diabetic patient, bottles were being carried. No witness stated a word that jug was not clean. Food Inspector or the Doctor accompanying the Food Inspector were not cross examined that presence of 124 PPM saccharine was not injurious to health. As per report of the Public Analyst Sucrose was found to be 3.02% and saccharine 124 PPM against minimum and maximum prescribed standard of 5.0% PPM and 100 PPM. Revisionist is the first Crl. Revision No 1493 of 2001. 6 offender. No objection if lenient view is taken. First submission of the learned counsel for the revisionist was that 50 bottles of lemon carbonated sweetened water were recovered from the possession of revisionist. 1600 MLS purchased was emptied in a jug but the jug was not properly cleaned. So, possibility of the jug containing Saccharine deposits cannot be ruled out but submission of the learned counsel for the revisionist seems to be not correct one because as per evidence on the file 1600 MLS lemon carbonated sweetened water was purchased against payment of Rs.12/- for the purpose of sample. After purchasing 1600 MLS lemon carbonated sweetened water, the same was made uniform. Purchased lemon carbonated sweetened water was emptied in a jug. Jug was washed properly and made dry. Sample was separated into three parts and transferred into different bottles for the purposes of analysis. Authority cited by the learned counsel for the revisionist i.e. R.N.Tyagi Vs. State of Haryana, 1999(1) FAC 311 is not helpful to the revisionist. In this case,petitioner was found in possession of 48 bottles, nine bottles were purchased. Bottles were opened. Contents were emptied in a tub and again got re-filled in the same bottle. As per report of the Crl. Revision No 1493 of 2001. 7 Public Analyst , Saccharine was found to be 115 PPM against the maximum prescribed standard of 100 PPM. Held that tub was not property cleaned. So, possibility of tub containing saccharine deposits cannot be ruled out but in this case suggestion to the PWs that jug was not washed properly and was not made dry. Next submission of the learned counsel for the revisionist was that no standard of lemon carbonated sweetened water has been fixed saccharine is a food and was not injurious to health but submission of the learned counsel for the revisionist is not correct one. Report of the Public Analyst Ex.PD is as under:- 1. Physical Appearance: Colourless liquid in one glass bottle having glass stopper in mouth. 2. Test for B.V.O. Negative 3. Lead Absent 4. Total reducing Sugars expressed as sucrose 3.02%. 5. Saccharine 124 PPM 6. Dulcin Absent 7. Cyclamate Absent 8. Phosphoric acid Absent 9. Tartaric acid Absent Crl. Revision No 1493 of 2001. 8 10. Citric acid Present 11. Taste for colour No added coal tar due detected As per report Ex.PD, found Sucrose 3.02% and saccharine 124 PPM against the minimum and maxim prescribed standards of 5.0% and 100 PPM respectively. No case of the prosecution that saccharine was injurious to health but the same was not as per the standard laid down in the Act and Rules. As per Appendix B of the Rules 1955 at Sr. No. A.01.01 standard of carbonated water has been given and it may contain saccharine not exceeding 100 PPM and sucrose shall not be less than 5.0%. As per the standard laid down under the Rules, sample was not found to be as per standard. Report Ex. PD show that the sample was found below standard prescribed under the Act and the Rules. When the sample was not upto the standard prescribed under the Act and Rules then the same is adulterated one. No authority was cited by the revisionist that if the sample is found to be below standard but no report of the analyst that contents of the sample were not injurious to health then no offence was committed. As per defence version, 50 bottles of lemon carbonated sweetened water were being carried Crl. Revision No 1493 of 2001. 9 for supply to two diabetic patients namely Ram Parkash and Raghubir. No case of the revisionist that he was no apprehended while carrying 50 bottles of lemon carbonated sweetened water or contents of the bottle were as per prescribed standard under the Act and the Rules made therein. Parmod Kumar Vs. State of Haryana, 1993(1) Prevention of Food Adulteration Cases 132 cited by the learned counsel for the revisionist not helpful to opine that sample was not to be found sub- standard. In the above cited authority two dalas (crates) of 24 bottles each of lemon carbonated sweetened water were found in possession of the petitioner. Bottles were emptied in a tub but the tub was not properly cleaned. Held that tub containing some Saccharine deposits cannot be ruled out but in the present case, 1600 MLS of lemon carbonated sweetened water was purchased. Contents of the bottles were made uniform then kept in a clean, empty and dry bottles. Last submission of the learned counsel for the revisionist was that occurrence is dated 29.5.1991. At that time the revisionist was about 40/41 years old. Revisionist is the first offender. Lenient view be taken. In support of this contention learned counsel for the revisionist cited Sektu Ram Vs State of Haryana, 2008(3) Crl. Revision No 1493 of 2001. 10 R.C.R.(Criminal) 364. In the above cited authority accused was convicted and sentenced under Food Adulteration Act- Faced trial for 12 years- Sentence reduced from six months to already undergone. In Tejbir Vs. State of Haryana, 2008(1) R.C.R.(Criminal) 817. On 28.4.1990 accused was found in possession of 14 liter of mixed milk for sale. Sample was found to be adulterated. Accused was released on probation because he was sole bread winner of family. In Krishan Kumar Vs. State of Haryana, 2008(3) R.C.R.(Criminal) 338. On 3.6.1988 accused was apprehended while carrying 10 kg. of cow milk for public sale. Accused was convicted and sentenced to six months rigorous imprisonment – Sentence reduced to already undergone, as the accused faced trial for 20 years. In the present case, revisionist was apprehended on 29.5.1991 while carrying 50 bottles of lemon carbonated sweetened water for public sale. At that time, the revisionist was 40/41 years old. Revisionist was the first offender. He was running a tea stall. Revisionist was the only bread winner of family He had two minor children and aged mother to support. Revisionist would become a hard criminal, if sent to jail to undergo imprisonment as ordered by the First Appellate Court i.e. one year and to pay a fine of Crl. Revision No 1493 of 2001. 11 Rs.2000/-. Ends of justice would be fully met, if revisionist is sentenced to imprisonment already undergone by him and to pay a fine of Rs.20,000/- more. Rs. 20,000/- is to be deposited within two months with the trial Court. With this modification, qua sentence, revision petition being without any merit is, hereby dismissed. ( JORA SINGH ) Anoop JUDGE