Research › Search › Judgment

Himachal Pradesh High Court · body

2000 DIGILAW 110 (HP)

STATE OF HIMACHAL PRADESH v. AMAR CHAND

2000-05-19

C.K.THAKKER

body2000
JUDGMENT C.K. Thakker, C.J.—This appeal is filed by the State against an order of acquittal recorded by Sessions Judge, Bilaspur, on 8th January, 1997 in Criminal Appeal No. 7/10 of 1992. 2. Briefly stated the facts are that on 7th August, 1989, one Mr. I.D. Verma Food Inspector for the local area of District Bilaspur visited Halwai shop of respondent-accused situated at Shri Naina Devi Ji in the presence of Sukhdev Singh and Dila Ram. On inspection of the shop of the accused, the complainant found a bag containing 50 kg of Suji kept in the shop by the accused for preperation of Halwa for sale to general public as Mela of Sawan Ashtami was in progress. The complainant disclosed his identity to the accused and expressed his intention to take sample of Suji for analysis. A notice for the said purpose was issued to the accused and 600 gram of Suji was purchased by the complainant for a consideration of Rs. 2.40 paise. A receipt to that effect was also issued. The sample was thereafter taken by the complainant after making a homogenous mixture of the Suji lying in the bag with the help of hard Bambu. The sample was divided in three equal parts and those parts were put in three different dry and clean bottles. It was the case of the prosecution that on analysis the article was found to be adulterated and as the report of the Public Analyst Ex. PW 1/K dated 14th September, 1989, discloses "contents of the sample contained 15 living Insects", a case was registered against the accused. 3. At the conclusion of the trial, the Chief Judicial Magistrate, Bilaspur, by a judgment and order dated 5th February, 1992, held the prosecution case proved against the accused and convicted him for the offence punishable under Section 7 (1) read with Section 16 (1)(a) (i) of the Prevention of Food Adulteration Act, 1954, (hereinafter referred to as "the Act"). After hearing the accused on the question of sentence, the learned Chief Judicial Magistrate ordered him to undergo simple imprisoment of one year and to pay a fine of Rs. 1,000/-. In default of payment of fine the accused was further ordered to undergo simple imprisonment for three months. 4. The respondent accused carried the matter in appeal. Before the Appellate Court, two contentions were advanced by the learned Counsel for the accused. 1,000/-. In default of payment of fine the accused was further ordered to undergo simple imprisonment for three months. 4. The respondent accused carried the matter in appeal. Before the Appellate Court, two contentions were advanced by the learned Counsel for the accused. It was urged that the provisions of Section 13 of the Act were mandatory in nature and as the said provisions were not complied with, the trial stood vitiated and the conviction and sentence was liable to be quashed and set aside. It was also contended that sample was taken by the Food Inspector on 7th August but it was analysed on 11th August. Thus, there was a gap of about four days during which, it was quite possible, that there might have been insects. The accused was, hence, entitled to benefit of doubt. Both the above contentions weighed with the Appellate Court and the appeal filed by the accused was allowed and the conviction and sentence recorded by the trial court were set aside. Against that acquittal recorded by the Sessions Judge, the present appeal is filed by the State. 5. Mr. M.L. Chauhan, learned Deputy Advocate General, appearing for the appellant State strenuously argued that the lower Appellate Court has committed an error of law in holding the provisions of sub-section (2) of Section 13 of the Act as mandatory. He submitted that several decisions, the Honble Supreme Court has held that the test is not whether the accused received the report within a stipulated period but the real test is as to whether any prejudice was caused to the accused thereby. If no prejudice is caused to the accused, the trial cannot be said to be vitiated. 6. In this connection Mr. M.L. Chauhan also submitted that it was open to the accused to make a complaint before the learned Magistrate that he had not received the report of the Public Analyst, and in that case, the court would have passed an appropriate order directing the prosecution to supply a copy of the said report. When no such demand was made, it would not be appropriate for the accused to take a technical contention without any proof of prejudice and to contend that the trial was vitiated. When no such demand was made, it would not be appropriate for the accused to take a technical contention without any proof of prejudice and to contend that the trial was vitiated. He also submitted that once the report was exhibited and the opinion of the Public Analyst was recorded in which it was stated that the sample contained 15 living insects, the provisions of the section were attracted and the article was proved to be adulterated. If it is so, the argument proceeds, the conviction and sentence recorded by the learned Magistrate was in accordance with law and the appeal filed by the accused was liable to be dismissed. Mr. Chauhan, therefore, submitted that the order of acquittal recorded by the lower Appellate Court deserves to be quashed and set aside by convicting the accused for the offence with which he was charged. 7. Mr. Shashi Kant, appearing for Mr. R. Maniktala, learned Counsel for the respondent, on the other hand, supported the order of acquittal passed by the lower Appellate Court. He submitted that after considering the facts of the case and relevant case law on the point, acquittal was recorded which does not deserve interference. He also submitted that even if two views are possible, when acquittal was recorded by the appellate court, ordinarily this court will not interfere with such order. 8. In my opinion, no interference with the order of acquittal recorded by the lower Appellate Court is called for by this Court. In the facts and circumstances of the instant case, it is not necessary to express final opinion one way or the other with regard to directory or mandatory nature of the provisions of Section 13 of the Act. 9. An interesting argument was advanced by Mr. Chauhan, on ambit and scope of the expression "or is otherwise unfit for human consumption" and as to whether the said phrase should be read conjunctively or disjunctively. He also drew my attention to certain decisions of the Honble Supreme Court of India in which different views were taken by Division Benches of equal number of Judges. In my view, however, it is not necessary to enter into larger question. 10. He also drew my attention to certain decisions of the Honble Supreme Court of India in which different views were taken by Division Benches of equal number of Judges. In my view, however, it is not necessary to enter into larger question. 10. In State (Delhi Administration) v. Puran Mal, (1985) 2 SCC 589, a Division Bench of two judges of the Honble Supreme Court considered previous cases and observed that different views were taken by Benches of two Judges. The Court, refrained from expressing final opinion one way or the other as to which of the two views was correct. The Court also observed that it was not necessary to express such opinion having regard to the facts of the case. 11. In paragraph 13 of the Report, Their Lordships observed: "Even if the nine worms found by the Public Analyst in the sample are considered to be insects, the certificate of the Public Analyst does not support the case of the prosecution that the lal mirchi powder was adulterated, for the Public Analyst has not expressed his opinion that the lal mirchi powder was either worm-infested or insect-infested or that on account of the presence of the meal worms the sample was unfit for human consumption. Therefore, I am of the opinion that the prosecution has not established by any satisfactory evidence the requirement of Section 2(l)(f) of the Act. Consequently, no interference is called for with the judgment of the High Court which, as stated above, has dismissed the criminal revision in limine. The appeal is accordingly dismissed." Similar view was taken by the Apex Court in Delhi Administration v. Satsarup Sharma, (1994 Supp (3) SCC 324). 12. In Puran Mai, the Court observed that finding of worms would not be sufficient to hold that the article was adulterated. The Public Analyst must express an opinion that such article was either worm-infested or insect-infested or on the account of the presence of meal worms, the sample was unfit for human consumption. As no such opinion was expressed by the Public Analyst in Puran Mal, the Court held that the order of acquittal recorded by the High Court was in consonance with law and did not deserve interference. 13. In Sat Sarup Sharma also the question was of adulteration of Suji , as in the instant case. As no such opinion was expressed by the Public Analyst in Puran Mal, the Court held that the order of acquittal recorded by the High Court was in consonance with law and did not deserve interference. 13. In Sat Sarup Sharma also the question was of adulteration of Suji , as in the instant case. There also a report of the Public Analyst was placed on record and the opinion expressed by the Analyst reads thus : "The sample contains eight living meal worms and one living weevil." 14. Following the ratio laid down in Puran Mal, the Court held that the prosecution failed to establish by any satisfactory evidence that the requirement of Section 2(ia) (f) of the Act was complied with and hence the order of acquittal was not interfered with. 15. In the instant case also, the opinion expressed by the Public Analyst reads : "Contents of the sample contained 15 living insects". The above opinion does not further state that on account of the presence of living insects, the sample was unfit for human consumption. It, therefore, cannot be said that the article was adulterated within the meaning of Section 2 (l)(b) of the Act. If it is so, an order of acquittal recorded by the lower Appellate Court cannot be said to be contrary to law or otherwise illegal. The said order, therefore, does not deserve interference by this Court. 16. For the foregoing reasons, I see no infirmity in the order of acquittal recorded by the learned Sessions Judge and the appeal filed by the appellant-State deserves to be dismissed and is accordingly dismissed. Bailable warrant issued on 30th May, 1997, stands cancelled. Appeal dismissed.