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Himachal Pradesh High Court · body

2001 DIGILAW 348 (HP)

STATE OF HIMACHAL PRADESH v. KAMLESH CHAND

2001-11-23

M.R.VERMA

body2001
JUDGMENT M.R. Verma, J. :- This appeal by the State is directed against the judgment dated 4.3.1997, passed by the learned Sessions Judge, Solan in criminal appeal No.l2-S/10 of 1989 whereby the conviction of and sentence awarded to the respondent - accused (hereafter referred to as the accused) under Section 16(l)(a)(i) of the Prevention of Food Adulteration Act (hereafter referred to as the Act) by the learned Chief Judicial Magistrate, Solan vide judgment dated 4.1.1989 had been set aside. 2. The prosecution case against the accused is that on 21.2.1987 at about 9 a.m. the accused was carrying about eight liters of tonned milk for sale. He was intervened by the food Inspector H.L. Pathak (PW-1) who took a sample of the milk from the accused. The accused, however, did not receive the price of the milk. The sample of milk so purchased was dealt with in accordance with the relevant rules and one part of the sample was sent to the Public analyst. On analysis, the Public analyst vide his report Ext.PW-1/F found the sample milk deficient in milk solids not fat by 44% that the minimum prescribed standard for tonned milk. After obtaining the requisite sanction Ext.PW-1/G, PW-1 lodged a complaint Ext.PW-1/H against the accused in the Court of the learned chief Judicial Magistrate, Solan. The accused pleaded not guilty to the accusation put to him under Section 7 read with Section 16(1) (a)(i) of the Act and claimed that the milk, sample where of was taken, was not his milk. 3. To prove the accusation against the accused, prosecution examined five witnesses. The accused was examined under Section 313 Cr.P.C. wherein he denied the prosecution case as a whole and claimed that the ease against him has been falsely made out. In defence, he examined Path Ram (DW-1). 4. On consideration of the evidence on record, the learned chief Judicial Magistrate found the accused guilty of the commission of an offence punishable under Section 16(l)(a)(i) of the Act and accordingly convicted and sentenced him to rigorous imprisonment for six months and to pay a fine of Rs. 1000/- and in default of payment of fine to suffer rigorous imprisonment for three months. 5. The accused preferred an appeal against the said conviction and sentence in the Court of the learned Sessions Judge, Solan. 1000/- and in default of payment of fine to suffer rigorous imprisonment for three months. 5. The accused preferred an appeal against the said conviction and sentence in the Court of the learned Sessions Judge, Solan. After hearing the parties, the learned Sessions Judge vide his judgment dated 26.5.1990 accepted the appeal, set aside the conviction and sentence and acquitted the accused of the accusation against him. The said judgment of the learned Sessions Judge was challenged by the State in this Court by way of Criminal Appeal No.62 of 1991. The said appeal was accepted by a learned Single Judge of this court vide judgment dated 30.11.1996 and the case was remanded to the learned Sessions Judge for a fresh decision in accordance with law and in the light of the observations made in the said judgment. After re- admitting the appeal and hearing the parties, the learned Sessions Judge accepted the appeal of the accused and set aside his conviction and sentence and acquitted him of the accusation. Hence, the present appeal. 6. I have heard the learned counsel for the parties and have also gone through the records. 7. It is the case of the prosecution that though the notice about the seizure of the sample was given by the Food Inspector and he offered price of the milk taken as sample to the accused but neither the notice was acknowledged nor the price of the milk was received by the accused. It is also case of the prosecution that the accused made the container of the milk to tumble after the seizure of the sample and leaving the measure and the container of the milk on the spot he bolted away. The version, in itself, seems to be unnatural in the sense that had it been the intention of the accused to prevent the Food Inspector from taking the sample of milk from him, he would have thrown away the milk/container before the alleged taking of the sample of milk by the Food Inspector. There was no fun in throwing away the milk by the accused after the sample had allegedly been taken by the Food Inspector. This aspect of the matter has to be kept in view while appreciating the evidence on record. There was no fun in throwing away the milk by the accused after the sample had allegedly been taken by the Food Inspector. This aspect of the matter has to be kept in view while appreciating the evidence on record. The Food Inspector, though has by and large, supported the version regarding seizure of the sample as aforesaid but in the facts and circumstances of the case, his statement appears to have been rightly disbelieved by the learned Sessions Judge. 8. Sub section (7) of Section 10 of the Act provides that when the Food Inspector takes any action inter alia under clause (a) of sub section (1) of Section 10,. he shall call one or more person(s) to be present at the time when such action is taken and take his/their signatures. This requirement, as provided by law, is not an empty formality. The Food Inspector is required to call such persons to be present at the time of his taking sample to ensure that the sample has been seized and dealt with in accordance with the provision so flaw and that the version of the Food Inspector is corroborated by such witness(s) at the trial, to lend credence to his version. In view of the provisions as contained in the proviso to clause (b) of sub section (1) of Section 11 of the Act, calling of such person or persons is all the more necessary in a case where the person from whom the sample is seized, refuses to sign or put his thumb impression on such papers which he is required to sign/thumb mark. 9. In the case in hand, the Food Inspector claims that he had joined N.K. Sharma (PW-2), Bhola Nath (PW-4) and Sant Ram (PW-5) to witness the process of taking the sample by him from the accused. A perusal of the statements of PW-2 and PW-4 reveals that they have not supported the version of the Food Inspector though admittedly they are his neighbors. Their statements not only suffer from various contradictions and infirmities but also do not corroborate the statements of the Food Inspector on material particulars. Being neighbors of the Food Inspector and government servants, they cannot be said to be interested in the accused nor any suggestion has been put to them when they were cross examined by the prosecution that they are interested in the accused in any manner. Being neighbors of the Food Inspector and government servants, they cannot be said to be interested in the accused nor any suggestion has been put to them when they were cross examined by the prosecution that they are interested in the accused in any manner. 10. Sant Ram (PW-5), though has supported the statement of the Food Inspector, but he is admittedly a person who assists the Food Inspector, in taking the sample and is invariably a witness in all cases instituted by the Food Inspector. Thus, being interested in the success of the prosecution case and in the cause of the Food Inspector, he cannot be said to be an independent witness. 11. The above discussion leads me to the conclusion that there is no cogent, reliable and trustworthy evidence to prove the accusations against the accused. Therefore, the learned Sessions Judge cannot be said to be wrong in holding that the prosecution case was of doubtful nature. 12. In view of the above discussion and conclusions the impugned judgment does not call for any interference by this Court. 13. As a result, this appeal merits dismissal and is accordingly dismissed. -