Hanif vs State Of Haryana
2022 Latest Caselaw 6714 P&H

      IN THE HIGH COURT OF PUNJAB & HARYANA
                  AT CHANDIGARH

                                          CRR-1474-2012
                                          Reserved On: 04.07.2022
                                          Pronounced On: 13.07.2022

HANIF                                                     ...Petitioner
                                        Versus
STATE OF HARYANA                                          ...Respondent

CORAM:       HON'BLE MR. JUSTICE SURESHWAR THAKUR

Present :   Mr. Sarfraj Hussain, Advocate
            for the petitioner.

            Mr. Tanuj Sharma, AAG, Haryana.
                        ****

SURESHWAR THAKUR, J.

1. The learned Judicial Magistrate Ist Class, Ferozepur Jhirka,

through a verdict of conviction drawn, on 22.11.2011, upon Criminal Case

No.12/31.01.2006, drew a verdict of conviction against the accused. The

above verdict of conviction was made against the accused in respect of a

complaint, constituted under Section 7 read with Section 16 of the

Prevention of Food and Adulteration Act (hereinafter referred to as "the

Act"). Through a separate sentencing order drawn on 23.11.2011, by the

learned trial Magistrate concerned, he proceeded to sentence the convict to

undergo Rigorous Imprisonment for a period of six months, and, also

sentenced him to pay a fine of Rs.1,000/-, for commission of an offence

punishable under Section 7 read with Section 16(1)(a)(i) of the Act. Further,

upon default of payment of fine amount, the convicting Court sentenced the

accused to undergo further simple imprisonment for one month.

2. The aggrieved-convict preferred thereagainst, criminal appeal

No.190 of 2011, before the learned Additional Sessions Judge, Nuh, and,

through a decision made thereons, on 25.04.2012, the learned Appellate

Court, after affirming the findings of conviction recorded against the

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accused, by the learned trial Magistrate concerned, hence proceeded to

sustain the verdict (supra), and, also proceeded to validate the consequent

therewith sentence (supra), as become initially imposed, upon him, by the

learned convicting Court. The convict became aggrieved from the

concurrently made verdicts of conviction, and, consequent therewith

sentence(s) (supra), as become imposed, upon him, by both the learned

Courts below, and, has chosen to assail them, through his instituting the

instant revision petition.

3. In the complaint allegation is made against the accused that,

on 20.11.2005 at 12.00 P.M. Govt. Food Inspector intercepted accused

having in his possession of about 10 Can's of 40 liters of mixed milk for

public sale in Tata-407 No.HR-28-1738. The complainant demanded a

sample of mixed milk by giving notice in writing on Form VI prescribed

under the Act and purchased 1500 Mls. of mixed milk against payment of

Rs.18/-, which was divided into three equal parts and bottled in three dry,

clean empty bottles. Two drops of 40% formalin per 25 Ml were added as

preservative in each bottle. Said bottles were stoppered tightly and sealed,

labelled and wrapped in strong thick papers as per rules and a paper slip

bearing Code No.GN-CS/FH/F1-2=111. Thumb impressions of accused were

taken on each wrapper. One sealed bottle along with memorandum in Form

II was sent to the Public Analyst, Haryana Chandigarh for analysis in sealed

packet through messenger Sh. Sajjan Singh, CIV. The other two bottles were

deposited with Local Health Authority on 21.11.2005 vide No.GFI/05/325 in

a sealed packet. A copy of memo in form VII and a specimen impression of

seals used to seal the sample and packet were sent to Public Analyst,

Haryana, Chandigarh. The report of public Analyst shows that the sample

contains 6.30% of milk solids not Fat against the minimum specified limit of 2 of 7

CRR-1474 of 2012 (O&M) -3-

8.5% laid down for mixed milk in the Table below item No.A.11.01.11 of the

PFA Rules, 1955 and thus the sample was found adulterated.

4. The samples of the purportedly adulterated food items were

taken through Ex. PA, at the crime site concerned, by the Food Inspector. At

the relevant time, he was also accompanied by PW-2 Dr. N.D. Khangwal,

and, on Ex. PA rather exist the thumb impressions of the convict-revisionist

herein Hanif. Prior to the drawing of Ex. PA, the Food Inspector concerned,

as divulged by Ex.PC, had made the relevant purchase, in a sum of Rs.18/-,

from the convict-revisionist herein. A reading of clause 5 of Ex.PC reveals,

that at the crime site, the Food Inspector, had divided the sample of 1500

mls/mgs of mixed milk, into three equal parts, and, had thereafter put them

into three dry, clean bottles/packets, and, after his making the sample

representative, his labelling, fastening, and, sealing besides making marks,

upon each part, as required under Section 11 of the Act. Moreover, it is also

echoed in Ex. PC, that the paper slip, issued by Local Health authority

became pasted from top to bottom, on each part of the sample(s). Ex. PC

also unfolds that, the sample was taken in the presence of Shri Kallu Khan.

Even on Ex.PC, the thumb impressions of the convict-revisionist herein are

carried. Ex. PE is the intimation by the Food Inspector to the Local Health

Authority, Gurugram (erstwhile Gurgaon) about the despatch thereto, of the

food samples hence for their examinations being made there. The Public

Analyst concerned, whereto, the seized samples became sent, for analyses,

his in his report embodied in Ex.PF, made the hereinafter extracted opinion.

"The sample contains 6.30% of Milk Solids not fat against the minimum specified limit of 8.5% laid down for Mixed Milk in the table below item Number A.11.01.11 of the PFA Rules, 1955. Hence the sample is adulterated."

5. After the making of an opinion by the Public Analyst 3 of 7

CRR-1474 of 2012 (O&M) -4-

concerned, upon the seized samples concerned, the Local Health Authority,

Gurugram (erstwhile Gurgaon) proceeded to, through Ex.PW-3/A, transmit

the apposite report to the convict, with an intimation to him, that in case he

intends, to controvert the report of the Public Analyst, as carried in Ex.PF, he

may choose to ask for further analysis thereof, by the Director, Central Food

Laboratory Mysure. Ex. PW3/A was sent through receipt, to which Ex.PW-

3/B is assigned.

6. It appears that, despite an intimation being made through

Ex.PW-3, to the convict about the report of the Public Analyst, as carried in

Ex.PF, and, appertaining to the recovered samples being an adulterated

sample(s) of the recovered food item concerned, yet, he did not choose to

controvert the findings as made against him, and, as carried in Ex.PF, hence

through his asking for a further analyses thereof, from the Director, Central

Food Laboratory, Mysure. The effect of above is that, there is a rife, and,

open abandonment, by the petitioner, with respect to his statutory right to

controvert the findings against him, as made, by the Analyst concerned, upon

the recovered samples of the purportedly adulterated food item, and, as

became collected, at the crime site. The further consequence thereof, is that,

the petitioner becomes estopped to make any contention before this Court,

that, the findings adversarial to him, and, as become embodied in Ex.PF, are

unworthy of any evidentiary vigor becoming assigned thereto.

7. As above stated, the convict had appended his thumb

impressions on Ex.PA, and, also appended his thumb impressions on Ex. PB,

besides had appended his thumb impressions also on Ex.PC. However, if the

existences thereons of the thumb impressions of the convict, were forged or

were false, thereupon, it was open to the convict to make a contest, and, to

also prove his contest, through his after his submitting in Court, his standard/ 4 of 7

CRR-1474 of 2012 (O&M) -5-

thumb impressions, his making a plea, before the learned trial Magistrate

concerned, that comparisons thereof be made, with his purportedly forged

thumb impressions, as carried on the above exhibits. However, he did not

take up the above plea, therefore, he has to be concluded that, he has

admitted that his authentic thumb impressions, rather becoming carried on

the above referred exhibits. The further sequel thereof is that, it is not open

to him, to deny all the displays, and, echoings, as carried therein, especially

with respect to the adoption of the statutory procedures relating to purchase

from him, at the crime site, of the purportedly adulterated food item, and,

nor it is open to him, to challenge the adoptions of the statutory procedure,

as reflected thereins, and/or, appertaining to the makings of samples, and,

also the makings of other markings thereons, besides, he becomes forbidden

to challenge all the relevant pastings, as become statutorily enjoined to be

done, at the crime site, by the Food Inspector concerned, and, which become

also made thereons.

8. The makings of the above exhibits, has been proven, by the

Food Inspector concerned, rather during the course of his stepping into the

witness box, as PW-1, and, in the cross-examination, as, made upon him, by

the learned defence counsel, there is no contest with respect to there being

any defect qua the adoption(s) of the statutory procedures, at the instance, of

the Food Inspector concerned, at the crime site. If so, and, when the

deposition of PW-1 has been corroborated by the unshattered deposition of

PW-2, thereupon the allegations carried in the complaint, as, instituted

against the accused, are to be concluded to be satisfactorily proven.

9. PW-1 has in his examination-in-chief unequivocally deposed

that, he had homogeneously stirred, the purchased food item, hence with a

plunger, and, with the above deposition remaining unattempted to be a 5 of 7

CRR-1474 of 2012 (O&M) -6-

ripped of its efficacy through any suggestion being meted to PW-1, during

the course of his cross-examination, and, nor when any admission thereto

ensued from PW-1. Therefore, it is not open, at this stage, for the learned

counsel revisionist, to make any contention before this Court that, the Food

Inspector concerned, had not homogeneously stirred the purchased

purportedly adulterated food item, and, nor can he argue, that the resultant

effect thereof, is that, it ultimately vitiating the uncontroverted report of the

Public Analyst, as made in respect thereof, and, as becomes comprised in

Ex.PF.

10. The learned counsel for the petitioner, has yet depended, upon

a judgment made by this Court, in Criminal Revision No.257 of 1994,

decided on 18.09.2007, verdict whereof, is titled as 'Gugan V. State of

Haryana'. He refers to the findings recorded therein that, since qua the

deficiencies, as observed in Ex.PF, deficiencies whereof, are also reported to

exist in the food items appertaining to the instant case, inasmuch as, theirs

being of "deficiency of milk solids only, and, not in the fat", it has been

propounded in the verdict (supra), to be a sequel of either the sample being

not properly analysed or the cow being not properly fed, and, also that the

above inference, becoming concluded to be amenable rather for benefit of

doubt being accorded to the accused. Therefore, he argues that, when in a

verdict (supra) a verdict of acquittal was made qua the revisionist therein,

thereupon a similar verdict of acquittal be pronounced even qua the

revisionist herein.

11. However, the above made argument is misplaced, and, cannot

be accepted. The reason being that, it is not open for the learned counsel for

the petitioner to argue, that the sample was not properly analysed, rather by

the laboratory concerned. The reason for the above inference, is that, it was 6 of 7

CRR-1474 of 2012 (O&M) -7-

open to the petitioner, to make the above contention, after his being

intimated through Ex.PW-3/A, about the making of a report by the Public

Analyst concerned, and, to which Ex.PF is assigned, his asking for the

apposite re-analyses. However, despite the petitioner becoming intimated

with respect to an adversarial opinion being pronounced qua the purchased

from him adulterated food item, he did not choose, to controvert it, through

his asking, within the statutorily stipulated period, rather qua it becoming re-

analysed by the Central Food Laboratory concerned. As above stated, the

above abondonment of a statutory right, does estop him, to rear the above

contention before this Court, hence the report of the Public Analyst,

obviously acquires the completest conclusivity.

12. Be that as it may, the above deficiencies (supra), though has

been detailed in verdict (supra), to be also amenable to stem from the cow,

being not properly fed, but if so, evidence even in that respect evidence was

to be adduced, as without any apposite support from cogent evidence, any

inference about the cow being not properly fed, rather would be completely

surmisal or hypothetical. Since evidence in respect of the cow being not

properly fed, and, thereupon the above deficiencies arising, has not become

adduced, thereupon, the inference/recorded qua the accused, in judgment

(supra), is not available to be accorded to the petitioner.

13. There is no merit in the petition, and, the same is dismissed.

The concurrently made verdicts of conviction, and, consequent therewith

sentence (supra), against the convict-revisionist are upheld, and, maintained.

Case property be dealt with, in accordance with law, after the expiry of

period of limitation. Records be sent down forthwith.

July 13, 2022                                ( SURESHWAR THAKUR )
'Ithlesh'                                               JUDGE
            Whether speaking/reasoned:-    Yes/No
            Whether reportable:           7 Yes/No
                                            of 7