KAILASH CHAND GUPTA Vs. STATE

JUDGEMENT

(1.) This revision petition is directed against the order dated 1.10.2004 of the Additional Sessions Judge directing framing of charge against the petitioner as well as against the other co-accused under Sections 328 and 273 of the Indian Penal Code (in short `IPC'). The facts of the case can be enumerated as under: Following a complaint of sale of adulterated mustered oil a raid was conducted in the premises of Ram Lalit and 50 gms. of oil from an open tin of mustered oil was seized. On Ram Lalit's disclosure that the mustered oil had been purchased from the petitioner, Kailash Chand Gupta, the raiding party went to his premises and recovered two iron tins of mustered oil. Ram Lalit and petitioner-Kailash Chand along with Gauri Shankar, who was the manufacturer of the mustered oil, were challaned for offences under Sections 272/273/328 IPC as well as for offences under Sections 7/16 of the Prevention of Food Adulteration Act (in short `PFA Act') all the three were charged under Sections 273 as well as under Section 328 of the IPC. The charge under Section 7/16 of the PFA Act was dropped because of non-compliance of mandatory provisions of Section 13 and 20 of the PFA Act. It is submitted on behalf of the petitioner that there is no evidence to link the petitioner with the offence under Sections 273 & 328 IPC and, therefore, he be discharged.

(2.) The seizure memo in respect of the recovery of mustered oil from Ram Lalit dated 12.2.1999 shows that the tin from which the sample of mustered oil was taken has not been described at all. All that it says was that the tin was open and it contained half a tin of mustered oil. There is no mention if the tin had any marking of the manufacturer or of the seller. As against this the tin recovered from the premises of the petitioner bears a label of " Nandi Brand Mustered Oil Kachhi Ghani 15 kg. filtered crushed by kolooh. Manufactured by Haryana Oil Industries, Bhiwani Road, Rohtak." and further a sticker carrying the words " Representative sample tested in competent laboratory and certified unadulterated" were fixed. Further on the cap of the tin the words "Nandi Brand double filtered 100% pure mustered oil Haryana Oil Industries, Rohtak - 124051" were printed. No bill of any kind showing sale of mustered oil by the petitioner to co-accused Ram Lalit has been recovered by the investigation.

(3.) It appears, therefore, that the only link between the petitioner, Kailash Chand Gupta, and the offence of sale of adulterated mustered oil which was poisonous, is the statement of co-accused, Ram Lalit. The investigation has not procurred any evidence to show that the contents of the tin recovered from Ram Lalit could not have been supplied to him by anyone other than the petitioner. The label, sticker and the print on the tin recovered from the petitioner showed that the manufacturer of the oil was Haryana Oil Industries. Therefore, the oil recovered from Ram Lalit could have been supplied to him by any manufacturer of oil and even if it was the same oil which was produced by Haryana Oil Industries the same could have been supplied to him directly by Haryana Oil Industries or by any other middle-man. Thus the very foundation of the charge against the petitioner, namely, the link of the sale of adulterated/poisonous mustered oil and the petitioner is missing. Thus the petitioner cannot be charged for the offence under Section 328 IPC.