IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH Criminal Revision No.1540 of 2003 Date of decision: September 17, 2010 Mathura Dass .. Petitioner Vs. State of Haryana .. Respondent Coram: Hon'ble Mr. Justice A.N. Jindal Present: Mr. Ashwani Verma, Advocate for the petitioner. Mr. J.S. Rattu, DAG, Haryana for the respondent. A.N. Jindal, J Accused-petitioner Mathura Dass (herein referred as, 'the accused') was prosecuted for having in possession adulterated “desi Khand”. Consequently, he was tried and vide judgment dated 2/3.11.2000 passed by the Sub Divisional Judicial Magistrate, Tohana, convicted and sentenced to undergo rigorous imprisonment for six months and to pay fine of Rs.1000/- under Section 16 (1) (a) (i) of the Prevention of Food Adulteration Act (herein referred as, 'the Act'). The appeal preferred by him was also dismissed vide judgment dated 18.7.2003 passed by the Additional Sessions Judge, Fatehabad. The broad facts, leading to the prosecution of the accused are that on 30.5.1991, Government Food Inspector Tek Ram having powers to inspect food articles to ensure its quality inspected the shop of the accused situated at Zamalpur Road, Tohana in the presence of Dr. N.K. Ahuja, DHO Hisar and found a bag containing “Desi Khand” weighing 20 kgs meant for public sale. After disclosing his identity and serving notice purchased 600 grams of Desi Khand on payment of Rs.5.40. He had made the contents of the bag homogenous before taking sample. Thereafter, the desi khand was put into three dry and clean bottles which were wrapped and stoppered tightly and sealed on the neck with the seal of Dr. N.K. Ahuja. Then all the three bottles were labeled and wrapped in a thick paper which was secured by means of paper strips bearing code No.HIR-TN-III/F H/176 and twine. The signatures of the accused were also received on the samples. One Criminal Revision No.1540 of 2003 -2- *** sealed bottle along with memo in form No.VII was sent to the Public Analyst, Haryana Chandigarh who reported that the sample was adulterated as it was found containing sulpher dioxide 6 PPM, whereas, it should have been free from the same. After recording preliminary evidence, the accused was summoned and notice of accusation was served. The sample was also got re-analyzed from Central Food Laboratory, Mysore which also found the sample to be adulterated as sulpher dioxide was found to be 53 parts per million. After pre-charge evidence, the accused was served with notice of accusation to which he pleaded not guilty and claimed trial. Thereafter, the witnesses were again re-called for cross examination. When examined under Section 313 Cr.P.C. he denied all the allegations and pleaded his false implication in the case. Ultimately, he was convicted and sentenced accordingly. His appeal also failed. Arguments heard. Record perused. As regards the argument that the accused was not responsible for the presence of sulpher dioxide in the commodity as the article of food was lying under the bag. But this contention cannot be accepted as there is nothing on the file to show that the contents of sulpher dioxide could travel from one bag to upper bag, thereby resulting in the excess sulpher. As a matter of fact sulpher dioxide is used for cleaning the sugar, therefore, the same cannot be increased because of the faulty storage or by faulty sampling of the food article, but it could be due to faulty procedure in purifying the sugar. So far as the argument with regard to sampling procedure, it may be observed that the Government Food Inspector has specifically stated that before the sample was taken, the food article was duly mixed up and made homogenous and the sample so taken was put into three dry and clean bottles. No defect in the procedure could be pointed out which may result into causing prejudice to the accused. No other argument has been advanced. Faced with the situation, learned counsel for the petitioner has urged that the accused is a first offender and he being an old man is in the Criminal Revision No.1540 of 2003 -3- *** evening of his life, therefore, he should be extended benefit of probation. Having heard the rival contentions, the petitioner is stated to be 65 years of age at the time of taking the sample i.e. on 30.5.1991. Now he must be about 84 years old. He has not misused the concession of bail. He has also remained in custody for some time. He has already suffered a lot due to protracted proceedings pending in the court for the last 19 years. In the similar circumstances of the case, this Court in case Sarwan Singh v. State of Punjab 2006 (1) RCR (Criminal) 331 was pleased to extend benefit of probation to the accused. Learned counsel for the accused has further placed reliance on the judgment rendered by this Court in case Ramesh Chand alias Ramesh Kumar vs State of Haryana 2005 Criminal Law Journal (1569), wherein it has been held as under: “19. No doubt, the cases under the Prevention of Food Adulteration Act should be seen with strictness, yet in view of the judgments of this Court in Narain Dass v. State of Haryana, 1997 (3) RCR (Crl.) 311 (P&H) and Jog Dhian v. State of Haryana, 2001(2) RCR (Criminal) 331 and keeping in view the facts and circumstances of this case i.e. the petitioner has already faced the protracted trial of more than 16 years, he is first offender, was a petty shop keeper in rural area and was selling the branded non-iodised salt; which was prohibited vide notification just one year prior to the taking of sample and the fact that his case is covered by the second proviso of Section 16 of the Act, I am of the opinion that ends of justice will be met if the petitioner is let off on probation.” Learned counsel has also relied upon the judgments delivered in the cases of Balbir v. State of Haryana 2006 (1) RCR (Criminal) (723) and Puran Mal v. State of Haryana, 2009 (4) RCR (Criminal) 527. Criminal Revision No.1540 of 2003 -4- *** Taking totality of circumstances into consideration, it would be just to release the petitioner on probation under Probation of Offenders Act, 1958. Resultantly, while dismissing the petition, sentence passed against the petitioner is modified to the extent that he be released on probation under Section 4(1) of the Probation of Offenders Act, 1958 on his executing a bond in the sum of Rs.5,000/- with one surety in the like amount to the satisfaction of the trial Court for a period of one year within which period he shall continue to be of good behaviour and keep peace and in case of breach of conditions of the bond, he will be ready to serve sentence as and when called for. However, the fine is enhanced to Rs.20,000/- and same shall be converted as cost of litigation. Non payment of fine will render the present revision petition as dismissed. Copy of the judgment be sent to the Chief Judicial Magistrate, Fatehabad for compliance. September 17, 2010 (A.N. Jindal) deepak Judge