IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH Criminal Revision No. 1652 of 2005 Date of decision: November 12, 2010 Furkan Ali .. Petitioner Vs. State of Haryana .. Respondent Coram: Hon'ble Mr. Justice A.N. Jindal Present: Mr. S.S. Dinarpur, Advocate for the petitioner. Mr. J.S. Rattu, DAG, Haryana for the respondent A.N. Jindal, J Challenge made in this petition is to the judgment dated 25.8.2005 passed by the Additional Sessions Judge, Jagadhri, dismissing the appeal filed by the accused-petitioner (herein referred as, 'the accused') against the judgment dated 9/12.7.2004 passed by the Chief Judicial Magistrate, Jagadhri, convicting and sentencing him 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 Prevention of Food Adulteration Act, 1954 ( for brevity, 'the Act' ). In nutshell, the allegations against the accused are that on 23.2.1994, at about 9.00 a.m. C.L. Sikri Government Food Inspector intercepted the accused who was having in his possession 35 litres of mixed milk for public sale. After proper stirring and mixing and after giving him notice Ex.PA on form No.VI, he purchased 750 mls of mixed milk against Rs.5/- vide receipt Ex.PB. The sample so drawn was divided into three equal parts and poured in three empty dry and clean bottles after adding requisite preservative. The bottles were properly stoppered, sealed and wrapped . One sealed sample was sent to the Public Analyst, Haryana, Chandigarh along with form No.VII in a sealed cover separately. The Public Analyst sent the report Ex.PD opining that the sample was adulterated inasmuch as the milk solids not fat were found to be 14% deficient of the minimum prescribed standard. The accused was apprised of the report and the complaint was filed. Criminal Revision No. 1652 of 2005 -2- After recording the pre-charge evidence, the accused was charged under Section 7 read with Section 16 (1) (a) (i) of the Act to which he pleaded not guilty and claimed trial. In order to substantiate the charges, the prosecution examined C.L. Sikri G.F.I. (PW1), Dr. Ramesh Kumar (PW2) and Sohan Lal Assistant (PW3). Besides, the prosecution has also placed on record notice Ex.PA, receipt Ex.PB, spot memo Ex.PC, report of the Public Analyst Ex.PD, complaint Ex.PE, forwarding letter Ex.PW3A, postal receipt Ex.PW3/B, undelivered registered envelope Ex.PW3/C and acknowledgment due Ex.PW3/D. When examined under Section 313 Cr.P.C. the accused denied all the incriminating circumstances appearing against him and pleaded his false implication in the case. He further explained that Farjand Ali a resident of his village had sent the milk through him to the house of his relative Rehamdin resident of old Hamida, Yamuna Nagar for the purpose of marriage of his daughter and was not for the public sale. In defence, he examined Farjand Ali (DW1) and Reham Deen (DW2). The trial resulted into conviction. His appeal also failed. Arguments heard. Record perused. The learned counsel for the petitioner has raised mutli fold contentions including that the milk was not meant for sale and was being taken for the purpose of marriage of the daughter of Rehamdeen of village Old Hamida, Yamuna Nagar. The sample was not drawn after proper stirring and making it homogenous, therefore, the same cannot be said to be representative sample. It was also contended that no reliance could be placed on the testimony of both the official witnesses unless corroborated by any independent witness. The link evidence is missing in the case. It was further argued that since there was no shortage of milk fat contents only milk solids not fat were found deficient, therefore, it could not be said that sample is not adulterated but the milking animal was not properly fed. As regards the stirring of milk and making it homogenous, both the witness have stated that the milk was properly stirred. More so, in the Act or Rules framed thereunder, there is no specific procedure prescribed Criminal Revision No. 1652 of 2005 -3- for churning or mixing the milk. Similar observations were made in case Food Inspector Municipal Corporation Baroda vs. Madan Lal Ram Lal Sharma and another, 1982 (2) FAC (SC) 372 wherein it was observed that there is nothing in the Act or Rules which prescribes that the churning must be done with some instrument and churning done by hand would not provide the homogenous and representative sample. In the instant case, C.L. Sikri (PW1), Government Food Inspector in so many words has uttered that he had properly stirred and mixed the milk and made it homogenous and he had no enmity or bias against the accused, thus, why his testimony should not be accepted. As regards the argument that the milk was not for sale, the accused was found in possession of 35 kgs of milk. He was served a notice and thereafter the Food Inspector purchased the milk from him then it cannot be said that the same possessed by the accused for sale. Any way the circumstance that the accused was not carrying small quantity of milk but a heavy quantity of 35 kgs was recovered from his possession, then presumption would be drawn that it was meant for sale as heavy quantity of milk in possession of the accused cannot be for any other purpose except for sale. As regards the non examination of the independent witness, it is specifically mentioned in the complaint Ex.PE by the Food Inspector that some persons were present at the spot and he requested them to become witness but they refused to exceed to his request. Thus, since despite efforts made by the complainant, no witness offered to join, therefore, non joining of the independent witness would not vitiate the trial. In any case, the evidence of the Food Inspector finds corroboration from the testimony of Dr. Ramesh Kumar (PW2). Both are consistent in all material particulars. Barring minor discrepancies nothing has been elicited from their statements which could enable the court to impeach their credibility and reliability. Further there is no hard and fast rule that the conviction could not be maintained on the sole testimony of the Food Inspector if it inspires confidence. Reliance could be placed on the judgment delivered in case Babu Lal Hargobind Dass vs. State of Gujarat, AIR 1971 SC 1277 wherein it was observed that the provisions of Section 10 (7) of the Act being statutory should be complied with by the Food Criminal Revision No. 1652 of 2005 -4- Inspector, thus, however, does not mean that the evidence of the Food Inspector; who is not an accomplice; that he had complied with the requirement of law calling the panch witness and taking his signatures, cannot be accepted without corroboration. It is settled by now that the law does not require that the evidence of the Food Inspector must necessarily need corroboration from the independent witness. Bonafide efforts, if made, by the Food Inspector to join the independent witness would be sufficient compliance of the said provisions, as in this part of the country, witnesses are very reluctant to serve the cause of the State for diversity of reasons. The argument, that the link evidence is missing, is devoid of any merit. If some mistake in writing of year of taking sample by the carrier Dev Raj SSK occurred due to inadvertence. The same could be cured by giving no effect to it. The report Ex.PD as proved on the record completes the whole chain and removes the doubt in the mind of the court that the sample was received by the Public Analyst on 23.2.1994 and not on 23.2.1993 as mentioned in the affidavit Ex.PX. Thus, this argument is brushed aside. No other argument has been raised. Faced with the situation, learned counsel for the petitioner has pleaded for taking a lenient view in the matter. Keeping in view the fact that the sample was drawn as back as on 23.2.1994 and the accused has suffered agony of the protracted trial, therefore, the ends of justice would be met if some reduction in the sentence is made. Resultantly, this petition is dismissed with the modification in the sentence which is reduced to six months without any alteration in the sentence of fine. Copy of the judgment be sent to the learned Chief Judicial Magistrate, Jagadhri, for compliance. November 12, 2010 (A.N. Jindal) deepak Judge