S.S. Dewan, J.
1. This revision petition has been directed against the judgment and order of the Additional Sessions Judge Sangrur, dated Feb. 22, 1983, affirming the convictions-aid sentence of the petitioner Under Section 16(1)(a)(i) of the Prevention of Food Adulteration Act, 1954 (for short, the Act) for storing 300 bottles of adulterated sweetened carbonated water for public sale.
2. On 28 the April, 1981, N.C. Goel, Govt. Food Inspector, along with Dr. Parveen Kumar, visited the shop of the accused-petitioner at Sangrur and purchased 9 bottles of sweetened carbonated water from him for analysis on payment of Rs. 9/- against receipt Ex. PB. The sample sent to the Public Analyst was subsequently found to be adulterated as it contained sucrose to the extent of 2.53% instead of 5% minimum and saccharine to the extent of 100.0 ppm and there was also violation of Rule 47 of the Prevention of Food Adulteration Rules, 1955 (for short, the Rules). Second sample was sent to the Director, Central Food Laboratory, Ghaziabad for analysis who, vide his report Ex. PK, found that the sample did not conform to the standard of sweetened carbonated water as laid down in item No. 1.01.01 of Appendix B of the Rules and the presence of saccharine was in excess of the prescribed limit of 100 ppm.
3. The case against the petitioner rests primarily on the unimpeached testimony of N.C. Goel, Govt. Food Inspector and Dr. Parveen Kumar. The petitioner denied the prosecution allegations and pleaded false complicity in the case but led no evidence in defence.
4. Identical contentions were raised before the appellate Court as well as the trial Court and the same have been so adequately and lucidly met by the Courts below in their judgments that it would be obviously wasteful and repetitive to cover the same grounds over again. Affirming the views of the learned Courts below in their judgments, I would reject the contentions raised on behalf of the petitioner.
5. The only argument laboured with little persistence on behalf of the petitioner is that in this case there has not been proper examination of the petitioner Under Section 313, Criminal P.C. as the report of the Director, Central Food Laboratory and its contents were not put to the petitioner at the time of his examination. According to him, the accused has been prejudiced in his defence. In support of this contention, reliance is placed on the decisions in Bhim Sen v. State of Punjab : 1976CriLJ293 , Jang Bahadur v. Union Territory of Chandigarh (1983) 2 FAC 312 (Punj & Har), Ram Chander v. State of Haryana (1982) 2 FAC 331 (Punj & Har) and Municipal Committee, Amritsar v. Om Parkash (1969) 71 Pun LR 793.
6. The facts of Bhim Sain's case 1976 Cri LJ 293 (SC) (supra) are clearly distinguishable and the ratio thereof is not applicable to the facts and circumstances of this case. In that case, sample of aerated water was taken from the accused. The Public Analyst found that the sample was adulterated as sucrose contents in the sample were 0.38% whereas it should not, have been less than 5%. During the trial, on the application of the accused, second part of his sample was sent to the Director, Central Food Laboratory, which revealed that the sucrose content was absent and there was non-permitted coal-tar dye in the sample. The trial Magistrate did not take into account the certificate of the Director since that did not form the subject-matter of the charge against the accused. He, however, convicted the accused on the ground that under item A.ol.Gl of Appendix (B) of the Rules, the sucrose content should not be less than 5% and, thus, the sample of aerated water was adulterated. On appeal, the Sessions Judge confirmed his conviction. The revision filed by him was also dismissed by the High Court. The accused then went up in appeal to the Supreme Court which was accepted. Their Lordships remarked (Para 6):
Before we part with this case, we must refer to one other contention urged on behalf of the respondent in a desperate attempt to sustain his conviction. That contention was that according to the certificate of the Director, Central Food Laboratory, which superseded the report of the Public Analyst, the sample of 'aerated water' sold by the appellant contained non-permitted coal-tar dye and consequently, it was adulterated and the appellant was rightly convicted for selling it. But the short answer to this contention is that it did not form the subject-matter of the charge against the appellant no was it put to him in his examination under Section 342 of the Criminal P.C. and it is, therefore, not open to the State to urge this ground for the first time at this stage in order to support the conviction.
7. The learned Counsel for the petitioner relied upon the aforementioned observation made by their Lordships which has reference to the examination of an accused Under Section 342, Cr.P.C. That reference is to be considered in. the light of the facts of that case. In that case, there was no mention of the prohibited coal-tar dye even in the charge. From that passage, it cannot be concluded that if the examination of the accused Under Section 313, Cr.P.C. is defective then the accused will be deemed to have been prejudiced in all cases.
8. The learned counsel for the petitioner has also cited two single Bench and one Division Bench Judgments of this Court. The report of the Public Analyst and that of the Director were not properly put to the respective accused of those cases during their examination Under Section 313, Cr.P.C. and, consequently, the accused in those cases were acquitted. Before I consider the effect of the called irregular examination of the petitioner, I would like to state the position of law as enunciated by the Supreme Court in the case of Shivaji Sahebrao v. State of Maharashtra : 1973CriLJ1783
It is trite law, nevertheless fundamental, that the prisoner's attention should be drawn to every inculpatory material so as to enable him to explain it. This is the basic fairness of a criminal trial and failure in this area may gravely imperil the validity of the trial itself, if consequential miscarriage of justice has flowed. However, where such an omission has occurred it does not ipso facto vitiate, the proceedings and prejudice occasioned by such defect must be established by the accused.
9. Thus, it would be seen that effect of failure of the Court to bring to the notice of the accused the inculpatory material appearing against him, that itself will not render the conviction bad. The accused has to show that by such omission on the part of the Court, he has been prejudiced which has resulted in consequent miscarriage of justice. Let me see whether the defect, if the omission is at all to be considered as a defect, has occasioned and caused any prejudice to the accused. It is not disputed that the petitioner was represented by a lawyer throughout the trial and the statements of the witnesses were recorded in the presence of the petitioner; he cannot now take up the plea that he was prejudiced for not putting any relevant question to him and for not fashioning the question most desirable by him. The pertinent question and answer were:
Q. 1 It is in evidence against you that on your request the second sample of soda water purchased from you was sent to the Director, Central Food Laboratory, Ghaziabad, and vide his report Ex. PK., the sample was found adulterated. What have you to say?
Ans. It is correct that the sample was sent to the Director.
10. In my view, the material facts were brought to the notice of the petitioner and there was no occasion for him to complain that he has been in any way prejudiced in explaining the prosecution case affecting him. Therefore, I am unable to hold that the petitioner suffered any injustice for this reason. Indeed, he had not even raised such a question in the trial Court or before the Sessions Judge. If he had done so, the alleged defect, if any, could have been easily cured. The objection raised before me seems to me to be most technical and flimsy. The defect could not have possibly vitiated the conviction of the petitioner.
11. Inevitably, a prayer has been made for reduction in the sentence awarded to the petitioner. There is marginal scope for reduction in the sentence. I accordingly reduce his sentence of imprisonment to six months. The sentence of fine with its default clause shall, however, remain. With this modification in the sentence, the revision petition is dismissed.