IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Revision No.862 of 2002 Date of decision: 31 st March, 2010 Sunil Dhingra … Petitioner Versus State of Haryana … Respondent CORAM: HON'BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA Present: Mr. N.C. Kinra, Advocate with Mr. Harsh Kinra, Advocates for the petitioner. Mr. Manish Deswal, Deputy Advocate General, Haryana for the State. KANWALJIT SINGH AHLUWALIA, J. (ORAL) Present revision petition has been preferred by Sunil Dhingra, who was tried in a complaint filed by the Government Food Inspector, Karnal under Section 7 of the Prevention of Food Adulteration Act, 1954 (hereinafter referred to as, ‘the Act’) punishable under Section 16(1)(a)(i) of the Act. The Court of Chief Judicial Magistrate, Karnal vide its judgment dated 22.01.2000 found the petitioner guilty of the offence punishable under Section 16(1)(a)(i) of the Act and sentenced him to undergo rigorous imprisonment for a period of six months and to pay a fine of Rs.1000/-, in default of payment of fine to further undergo simple imprisonment for one and a half month. Aggrieved against the same, petitioner had filed an appeal. The same was dismissed by the Court of Additional Sessions Judge, Criminal Revision No. 862 of 2002 Karnal, vide its judgment dated 26.04.2002 by upholding the conviction of the petitioner and maintaining his sentence. Briefly stated, facts of the case are that on 5th June, 1991 at about 7.00 p.m., Kali Ram Government Food Inspector PW-1 inspected the shop of the petitioner in the area of Nilokheri. The petitioner was having a Karyana shop and had stored 5 kilograms of chili powder contained in a tin for public sale. Government Food Inspector purchased 450 grams of chili powder on payment of Rs.16.20 and prepared three samples in consonance with the rules. One of them was sent to the Public Analyst, who, vide his report Ex.PE, opined as under: “The sample is coloured with added prohibited Red oil soluble coaltar dye whereas it should be free from the same.” The accused made an application and the second sample was sent to the Central Food Laboratory, Pune which also found the sample to be sub-standard and held the same to be adulterated. The opinion of the Central Food Laboratory reads as under: “Mixture of synthetic non-permitted red and orange oil soluble colours detected and I am of the opinion that the sample does not conform to the standards of chilly powder as per PFA Rules 1955.” The testimony of PW-1 Kali Ram Government Food Inspector was duly corroborated by Dr.R.K. Goyal PW-2, who was present when the sample was drawn. The complainant also examined Lal Singh, an Assistant from the office of Local Health Authority as PW-3, to prove sending of the sample to the Public Analyst. Thereafter, statement of the accused under Section 313 Cr.P.C. was recorded and all incriminating circumstances were put to him. The accused stated that when the Food Inspector arrived, the chili powder 2 Criminal Revision No. 862 of 2002 was contained in a gunny bag and on that gunny bag, name of M/s Teju Ram, G.T. Road, Taraori (Karnal) was mentioned. At that time, the accused was shifting the chili powder from that gunny bag to a tin, from which, a sample was drawn. At that time, the accused made an attempt to search the bill, but the bill was not available, however, the accused had orally disclosed to the Food Inspector that chili powder was purchased from M/s Teju Ram, G.T. Road, Taraori (Karnal). Thereafter, when the bill was found, the same was shown to the Government Food Inspector. A request was made that Teju Ram, being the manufacturer, be summoned to stand trial. Both the Courts below have placed implicit reliance upon the testimony of PW-1 Kali Ram Government Food Inspector and PW-2 Dr.R.K. Goyal, and held the petitioner to be guilty of the offence. Mr.Kinra, appearing for the petitioner, has made following three arguments before this Court: Firstly, it has been submitted that the report of Central Food Laboratory, Pune was not exhibited, therefore, the same cannot be relied upon against the accused. Secondly, learned counsel has submitted that once the report of Central Food Laboratory, Pune is ignored, then the report of the Public Analyst cannot be relied upon, as the same is based upon paper chromatic test, which according to a Division Bench of this Court in ‘State of Haryana v. Rattan Lal’ 1993 Criminal Law Times, 79, is held not to be a safe test to conclude the presence of prohibited colour die. Thirdly, it is stated that from the cross examination of Government Food Inspector and the defence evidence, it is evident that the petitioner is a Vendor, therefore, he enjoys the statutory immunity and cannot be convicted for the offence, once it is proved that petitioner being Vendor had purchased the adulterated article from a manufacturer. 3 Criminal Revision No. 862 of 2002 I find no merit in the first two arguments and they are to be rejected outrightly. The petitioner himself opted for analysis of second sample and relied upon the report of Central Food Laboratory to secure his acquittal, therefore, the accused cannot say that the report of the Central Food Laboratory should be read to his advantage qua one part and regarding the second part it be ignored, as the same has not been exhibited. However, there is a merit in the third argument raised before this Court and the same is to be examined. In his statement recorded under Section 313 Cr.P.C., the accused had taken a definite stand that on the gunny bag, it was printed as under: “M/s Teju Ram, G.T. Road, Taraori (Karnal)” The Government Food Inspector, in his cross examination, stated as under: “The accused told at the spot that he purchased the said chillis powder from M/s Teju Ram, G.T. Road, Taraori. I asked him regarding the purchase of bill which he could not produce the same at the time of seizing sample. The accused tried to trace the bill but at the spot bill was not available. The accused after launching the prosecution came to me along with the bill but I advised him to produce the same in the Court. The accused showed the bag from which he has converted chillis powder into a tin. I do not remember whether there was address of the manufacturer on the bag. It is correct that bill No.241 dt. 5.6.91 which was shown by the accused to me after launching the prosecution. Again said the bill was prepared in Urdu language which I cannot read or understand.” Smt. Shanno Devi daughter of Teju Ram appeared as DW-1. She proved the signatures of her father on the bill. The accused himself stepped into the witness box and appeared as DW-2. He also proved the bill and stated that the chili powder was purchased from Teju Ram. 4 Criminal Revision No. 862 of 2002 Section 14 of the Act requires that a Manufacturer, Distributor and Dealer ought to give warranty to the Vendor. The proviso to Section 14 of the Act states that bill, cash memorandum or invoice can be treated as warranty. Section 14A of the Act further states that a Vendor has to disclose to the Food Inspector the name, address and other particulars of the person, from whom he purchased the food article. Section 14A of the Act was complied with by the accused, when he disclosed the name of the Manufacturer and gave his address. Furthermore, on the gunny bag, the name of the Manufacturer was printed. If at that time the bill was not readily available, the petitioner cannot be penalized for the same. The very objective of Sections 14 and 14A of the Act is to protect a Vendor. Thus, no such immunity flows to the dealer or distributor. The petitioner, who was a petty shopkeeper, had purchased the chili powder against a bill from the manufacturer. Therefore, in these circumstances, conviction of the petitioner cannot be sustained and the same is liable to be set aside. Accordingly, the present revision petition is accepted, petitioner is acquitted of the charges and the judgments of both the Courts below, whereby the petitioner was convicted and sentenced, are set aside. [KANWALJIT SINGH AHLUWALIA] JUDGE March 31, 2010 rps 5