Bal Kishan vs State (Govt. Of Nct Of Delhi)
2009 Latest Caselaw 4255 Del

*       IN THE HIGH COURT OF DELHI AT NEW DELHI

%                       Judgment Reserved on: 14th October, 2009
                       Judgment Delivered on: 22ndOctober, 2009

+                             CRL.R.P.241/2001

        BAL KISHAN                                    ..... Petitioner
                              Through:    Ms. Anita Abraham, Advocate.

                        Versus


        STATE (GOVT. OF NCT OF DELHI)        ..... Respondent
                        Through:   Ms. Fizani Husain, APP.

CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR

     1. Whether the Reporters of local papers may be allowed
        to see the judgment?

     2. To be referred to the Reporter or not?                 Yes

     3. Whether the judgment should be reported in the         Yes
        Digest?

INDERMEET KAUR, J.

1. On 7.9.1992 at about 2 PM and again at 3 PM from the masala

stall on the patri adjacent to the shop no.17, Shastri Market, Narela,

Delhi two samples of chilli powder were taken, one from an open

container and the other from an open polythene bag having no label

declaration. This masala stall was being run by the petitioner Bal

Kishan.

2. The first sample taken was the subject matter of complaint

case no. 36/1992 dated 28.5.1992; the Investigating Officer being

Sh.V.P.S.Chaudhary. The second sample was the subject matter of

complaint no.46/1992 dated 10.6.1992; the Investigating Officer

being Smt.Suniti Kumar Gupta.

3. The samples were sent to the Public Analyst for testing. In

complaint case no.36/1992 vide report dated 24.2.1992, the sample

was found adulterated as it contained abundance of foreign starch

and coloured with an unpermitted oil soluble coaltar dye; further

A.I.H. exceeded the prescribed maximum limit of 1.3%. Vide report

of the same date i.e. report dated 24.2.1992 in complaint case

no.46/1992, the sample was found adulterated as the sample

contained abundance of foreign starch and coloured with an

unpermitted oil soluble coaltar dye.

4. Bal Kishan was prosecuted under the Prevention of Food

Adulteration Act (hereinafter referred to as the PFA Act). Three

witnesses were examined in each of the two complaint cases.

5. In complaint case No.36/1992 Gopal Singh, the LHA was

examined as PW-1; the Food Inspector V.P.S. Chaudhary was

examined as PW-2 and Public Analyst Sh.R.P.Gupta was examined as

PW-3.

6. In complaint case No.46/1992 Sh.Gopal Singh, the LHA was

examined as PW-1; Food Inspector Suniti Kumar Gupta was examined

as PW-2 and Mr.R.P.Guaba, public Analyst was examined as PW-3.

7. All the aforenoted witnesses were official witnesses and

deposed in the said capacity. The petitioner in spite of opportunity

did not exercise his right under Section 13 (2) of the PFA Act. Bal

Kishan in his respective statements under Section 313 Cr.P.C. had

stated that his signatures had been obtained on blank papers under

threat and coercion.

8. The trial judge vide a common judgment dated 13.10.1997

held the accused guilty for having violated the provisions of Section 2

(ia) (a) (j) (m) of the PFA Act and Rules and convicted him under

Section 7 read with Section 16 (1) (1A) of the said Act. He had been

sentenced to undergo RI for one year and to pay a fine of Rs.2000/- in

each case; in default of payment of fine to undergo SI for three

months.

9. In appeal the additional sessions judge vide judgment dated

4.4.2001, dismissed the appeal; no modification was made in the

sentence either as the court held that the Magistrate had given the

minimum punishment which is prescribed for such an offence. The

sentences had been directed to run concurrently in both the

complaint cases.

10. It is this judgment which is the subject matter of this present

revision petition.

11. The scope of the revisional powers of a court under Section 397

read with Section 401 of the IPC is limited. Two courts below have

given a concurrent finding of fact. Interference is called for only in

those cases where the correctness, legality or propriety of any

finding, sentence or order is under challenge.

12. It is in the light of these principles that this court will

appreciate the arguments addressed before it.

13. On behalf of the petitioner, it has been submitted that this is a

clear case of malafides; the complainant had within a span of one

hour lifted two samples of chilli powder i.e. at 2 PM and thereafter the

second sample at 3 PM. The same health officer i.e. Gopal Singh had

accompanied the two respective Food Inspectors; Gopal Singh had

accompanied V.P.S.Chaudhary at 2 PM and thereafter at 3 PM he had

accompanied Suniti Kumar Gupta; it appears that the health officer

had no other work except to in one way or the other falsely malign

and implicate the petitioner; the ulterior motive and purpose of the

health officer is writ large. It is further submitted that the two

samples taken at two different times were not representative

samples and this is borne out from the evidence of the respective

food inspectors. Attention has been drawn to the testimony of Gopal

Singh who had appeared as PW-1 in both the complaint cases. In

complaint case no. 36/1992 he had deposed that the chilli powder

was lifted after mixing with the help of a clean and dry big spoon; in

complaint case no. 46/1992 when the sample was lifted one hour

later, PW-1 has deposed that before taking the sample the food

inspector had mixed the contents of the chilli powder with the help of

a Karchhi lying in the plastic bag. It is submitted that at 2 PM PW-1

had used a big spoon to take out the sample and at 3 PM a Karchhi

had been used; where had the spoon disappeared? To the same

effect is the version of the health inspectors i.e. V.P.S.Chaudhary and

Suniti Kumar Gupta examined as PW-2 in their respective complaints;

samples not having been homogenized they were not representative,

benefit of doubt has accrued in favour of the petitioner entitling him

to an acquittal. In the alternative, the last submission addressed is

on the sentence which has been imposed upon the petitioner; it is

submitted that even in those cases where a minimum punishment

has been prescribed the court may in an appropriate case reduce the

sentence. For this proposition reliance has been placed upon a

judgment of this court reported in Subhash Chand vs. State 112

(2004) DLT 98 as also another judgment reported in N.Sukumaran

Nair vs. Food Inspector 1995 Crl.L.J. 3651.

14. On the perusal of the record, it is noted that there is no

discrepancy in the versions of any of the witnesses examined by the

prosecution. It is not in dispute that there is no bar for taking more

than one sample from a vendor on a particular day. It is also not the

case of the petitioner that the sample was taken from the same

container; one was taken from an open container and the other was

taken from an open polythene bag having no label declaration. Both

the samples were admittedly adulterated and did not conform to the

standards as laid down in the PFA Act and the Rules. Respective

Food Inspectors i.e. V.P.S. Chaudhary and Suniti Kumar Gupta as also

the health officer Gopal Singh had categorically deposed that the

sample had been taken after properly mixing the same with a clean

and dry spoon which was rotated in all directions thoroughly and

properly in the first instance and the second sample was taken with a

dry and clean Karchhi after mixing the contents of the chilli powder.

The receipt of selling the samples to the food inspectors has been

duly signed by the petitioner; this has not been disputed; his bald

defence that he was coerced to sign blank papers did not surface at

the time of the cross-examination of the witnesses of the

prosecution; it is an afterthought. The samples had been taken after

a proper mixing and homogenization. They were representative

samples.

15. Both the courts below have appreciated the evidence in the

correct perspective and nothing has been brought on record which

could in any manner discredit either the oral version of the said

witnesses or assail the documentary evidence which includes the

report of the public analyst opining the samples to be adulterated.

16. The conviction of the petitioner calls for no interference.

17. However, the sentence imposed upon the accused deserves a

modification. The offence is related to the year 1992 i.e. almost 17

years from date. The petitioner is a first offender; he has suffered a

long and protracted trial; besides mental agony of trial, he has also

suffered incarceration of almost seven months out of the sentence of

one year which has been imposed upon him. The fine stands

deposited.

18. In Haripada Das vs. State of W.B. and Anr. 1999 Crl.L.J. 603 the

Supreme Court in the four appeals preferred before it, while

maintaining the conviction of the appellant in three of the appeals,

modified the sentence under Section 16 (a) (i) of PFA Act and reduced

it to the sentence already suffered by him. In Subhash Chand (supra),

the petitioner had been convicted under Section 16 (1) (1A) of the

PFA Act and had been sentenced to undergo RI for one year and to

pay a fine of Rs.3000/-; in the said case the sentence had been

modified and he had been sentenced to undergo RI for the period

already undergone by him; i.e. a period of incarceration of eight

months and the fine had been enhanced from Rs.3000/- to Rs.10000/.

19. The petitioner is on bail. No useful purpose would be served in

sending him back to jail. He has a clean record and has re-built his

roots in society. It would be unjust to unroot him at this stage. In this

background, the ends of justice would be well met if the petitioner

who has suffered a sentence of almost seven months is sentenced to

undergo the sentence already undergone by him. He is, however

directed to pay a fine of Rs.10,000/- which be paid within a period of

three weeks, failing which he shall suffer the remaining sentence as

imposed vide order of sentence dated 4.4.2001.

20. The petition is disposed in the above terms.

(INDERMEET KAUR) JUDGE

22nd October, 2009 rb