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2001 DIGILAW 60 (HP)

STATE OF H. P. v. DESH RAJ

2001-04-25

C.K.THAKKER

body2001
JUDGMENT C.K. Thakker, CJ.—This appeal is filed against an order of acquittal recorded by the learned Sessions Judge, Hamirpur in Criminal Appeal No. 6 of 1987 on December 23, 1996 by which she set aside an order of conviction and sentence recorded by the Chief Judicial Magistrate, Hamirpur dated December 9, 1986 in case No. 6-III of 1985. 2. The respondent was the original accused. A complaint was filed against him by the Food Inspector, Inspector, for an offence punishable under Section 16(l-A)(i) of the Prevention of Food Adulteration Act, 1954 (hereinafter referred to as the Act). The case of the prosecution was that in 1984 the complainant was serving as Food Inspector in Hamirpur District. The accused was having a Kirana shop at Mahal in Hamirpur District. On November 13,1984, at about 1.1.5 p.m., the complainant visited the business premises of the accused. The accused had kept about 6 kgs. of Ajwain for sale to public. The complainant showed his willingness to take sample of Ajwain for analysis. Accordingly, the accused sold the commodity under the notice as required by Rule 12 of the Prevention of Food Adulteration Rules, 1955 (copy of which was reproduced at Ex. PA) to the complainant. Payment of Rs. 6 vide receipt Ex. PB was also made by the complainant to the accused for such sale. The article of food purchased by the complainant was then divided into three equal parts in three clean and dry bottles. The bottles were duly packed, labelled and sealed. Observing necessary formalities, including taking of signatures on each bottle by Panchas as well as by the accused, the samples were sent to Local Health Authority at Kandaghat. Sampling was done in the presence of both the Panchas; Amar Nath (PW 3) and Mool Raj (PW-4). The Public Analyst caused the sample analysed and vide his report, Ex. PE declared the result of the analysis as under: 1. Organic extraneous matter = 4% 2. Inorganic extraneous matter = 5% 3. Living insects = 2 living larva on 22.11.84. 4. Insect fragments = Nil. 5. Rodent contamination = 3 pieces of rodent excreta. 3. The Public Analyst was of the opinion that the organic extraneous matter was in excess by 1% and inorganic extraneous matter was in excess by 3% than the maximum prescribed limit. Inorganic extraneous matter = 5% 3. Living insects = 2 living larva on 22.11.84. 4. Insect fragments = Nil. 5. Rodent contamination = 3 pieces of rodent excreta. 3. The Public Analyst was of the opinion that the organic extraneous matter was in excess by 1% and inorganic extraneous matter was in excess by 3% than the maximum prescribed limit. He also opined that the sample contained two living larva and three pieces of rodent excreta. From the report, thus, prima facie, it was felt that the accused had committed offence punishable under the Act and hence sanction was granted to prosecute him. The Food Inspector, drafted a complaint, Ext. PG and presented the same in the Court on January 31, 1985. Notice was sent to the accused under Section 13(2) of the Act (Ext. PW-2/A) which was received by the accused on February 9, 1985. The Court in the light of the averments made in the complaint and accompanying documents found sufficient grounds to proceed against the accused under Section 16(l-A)(i) of the Act. Accordingly, a summons was issued to him in response to the notice under Section 13(2) of the Act. The accused applied to have an opinion of the Director of Central Food Laboratory. The prayer was allowed vide an order dated March 26, 1985 and second part of the sample which was with the Local Health Authority was sent to the Central Food Laboratory with seals intact. As per report of the Central Food Laboratory (Ex. PX), the sample was not found to be in accordance with the standard. The relevant part of the report of the Central Food Laboratory read thus : "The sample does not conform to the standard of Ajwain laid down in item A.05.23 of PFA Rules (1955) in that (i) inorganic and organic extraneous matter are above the maximum prescribed limits (ii) sample showed live and dead insects as well as contamination with rodent excreta". 4. At the trial, prosecution examined four witnesses, PW 1 K.S. Verma, Food Inspector, Hamirpur; PW 2 Daljit Singh.. Clerk of Chief Medical Officer, Hamirpur; PW 3 Amar Nath, Panch No. 1; and PW 4 Mool Raj, Panch No. 2. 4. At the trial, prosecution examined four witnesses, PW 1 K.S. Verma, Food Inspector, Hamirpur; PW 2 Daljit Singh.. Clerk of Chief Medical Officer, Hamirpur; PW 3 Amar Nath, Panch No. 1; and PW 4 Mool Raj, Panch No. 2. On the basis of the evidence, the learned Magistrate held that it was proved by the prosecution beyond reasonable doubt that on November 13, 1984, the accused had sold a sample of Ajwain to the Food Inspector which was found to be adulterated and, thereby he committed an offence punishable under Section 16(1-A) of the Act. After hearing the accused on sentence, the learned Magistrate was pleased to order him to undergo rigorous imprisonment for one year and to pay a fine of Rs. 2,000; in default, to undergo simple imprisonment for six months more. 5. Being aggrieved by the order passed by the learned Magistrate, the accused preferred an appeal. Before the learned Sessions Judge, it was contended that the provisions of the Act had not been complied with by the prosecution and the conviction was liable to be set aside. It was also urged that questions which ought to have been put to the accused under Section 313 of the Code of Criminal Procedure, 1973 (hereinafter to be referred as "the Code") were not put to the accused and it caused prejudice to him and the order of conviction was liable to be set aside. It was urged that there was non compliance with the provisions of subsection (2B) of Section 13 of the Act inasmuch as the Local Health Authority had not forwarded the sample upon requisition being made by the Court within a period of five days and non compliance resulted in miscarriage of justice. Moreover, in none of the reports, it was mentioned that the sample was adulterated or was found to be unfit for human consumption and, hence, no conviction could have been recorded. It was argued that the commodity in question i.e. Ajwain was not meant for human consumption nor it was for sale to public but it was for cattle and a statement was also made by the accused to that effect at the time of visit of Food Inspector. A play-card was found on the commodity and the said fact had been specifically and unequivocally stated by both the Panchas. The provisions of the Act, hence, were not applicable. 6. A play-card was found on the commodity and the said fact had been specifically and unequivocally stated by both the Panchas. The provisions of the Act, hence, were not applicable. 6. The learned Sessions Judge after considering the facts and circumstances, as also reappreciating the evidence on record, upheld some of the contentions of the accused and set aside conviction recorded and sentence imposed by the trial Court by allowing the appeal. It is against the said order that the present appeal is filed by the State. 7. I have heard Mr. Vivek Thakur, learned Assistant Advocate General for the appellant and Mr. Shrawan Dogra, learned Counsel for the respondent. 8. Mr. Thakur contended that an error of law has been committed by the learned Sessions Judge in interfering with conviction recorded by the learned Magistrate, in allowing the appeal and in setting aside the order passed by the trial Court. He submitted that the learned Sessions Judge was not right in upholding the contention that there was non-compliance with the provisions of Section 13 (2-B) of the Act. 9. Section 13 (2-B) enacts that on receipt of the part or parts of the sample from the Local (Health) Authority under Section 13 (2-A), the Court shall first ascertain that the mark and seal or fastening as provided in clause (b) of sub-section (1) of Section 11 are intact and the signature or thumb impression, as the case may be, is not tampered with, and despatch the part or, as the case may be, one of the parts of the sample under its own seal to the Director of the Central Food Laboratory who shall thereupon send a certificate to the Court in the prescribed form within one month from the date of receipt of the part of the sample specifying the result of the analysis. 10. The learned Sessions Judge, following a decision of this Court in M/s. Sukh Chain and Co. v. State of Himachal Pradesh, 1989 Sim LJ 498, held that the provisions of Section 13(2-B) are mandatory and non-compliance thereof vitiates the proceedings. 10. The learned Sessions Judge, following a decision of this Court in M/s. Sukh Chain and Co. v. State of Himachal Pradesh, 1989 Sim LJ 498, held that the provisions of Section 13(2-B) are mandatory and non-compliance thereof vitiates the proceedings. The defect in failure to comply with Section 13 (2-B) was held "fatal" by a Single Judge of this Court observing that the law enjoins on the Court to observe certain formalities and if they have not been complied with imperative conditions could not be said to have been fulfilled and trial would get vitiated. 11. Relying upon a decision of the Supreme Court in Dal Chand v. Municipal Corporation, Bhopal and another, AIR 1983 SC 303, Mr. Thakur submitted that all the provisions of the Act and the Rules cannot be held to be imperative and mandatory, non-compliance of which would necessarily result in vitiating the proceedings. In Dal Chand, the Court observed that there are no ready tests or invariable formulae to determine whether a particular provision of a statute is mandatory or directory. Broad purpose of the statute must be kept in mind. It was observed that weighing of the consequence of holding a provision to be mandatory or directory is material and more often than not, determinative of the question whether it should be held permissive or imperative. The Court then stated : "Whether the design of the statute is the avoidance or prevention of public mischief, but the enforcement of a particular provision literally to its letter will tend to defeat that design, the provision must be held to be directory, so that proof of prejudice in addition to non-compliance of the provision is necessary to invalidate the act complained of." 12. In the opinion of the Court, mere prescription of a period within which an act should be done, is not something like a period of limitation with painful consequences if the act is not done within the stipulated period. Sometimes a period is prescribed with a view to expedition and with the object of giving sufficient time to the person from whom the sample is taken so as to enable him to take appropriate action if he is aggrieved by such action. Where the effect of non-compliance with the provision deprives the right of the person to challenge the action, it may result in prejudice to him. Where the effect of non-compliance with the provision deprives the right of the person to challenge the action, it may result in prejudice to him. In such cases, the provisions may be held mandatory but if it is not so, the action cannot be held bad or unlawful. 13. Mr. Thakur also submitted that in the instant case, there is nothing to show that the provisions of Section 13(2-B) had not been complied with. For that he invited the attention of the Court to Zimni orders and relevant dates to show that the contention which weighed with the learned Sessions Judge was not well founded. 14. On March 26, 1985, Mr. K.S. Verma, Food Inspector was present. Similarly, accused Desh Raj was also present with his counsel Mr. S.L. Sharma. The learned Chief Judicial Magistrate stated as under: "26.3.1985 Pr: Sh. K.S. Verma, Food Inspector. Accused person with counsel \ Sh. S.L. Sharma, Advocate. The accused person has applied to have the opinion of Director, Central Food Laboratory. A sample of Ajwain was taken from the accused person which on analysis by the Public Analyst was found adulterated. Notice of the application filed by the accused person was given to the Local Health Authority. The Local Health Authority has produced two parts of the sample of Ajwain. The seals of the sample are intact. The samples have not been tampered with. Accordingly, the second part of the sample is ordered to be sent to the Director of Central Food Laboratory, Ghaziabad for report. The accused person shall deposit the fees as also postal charges box etc. The third part of the sample is returned to the Local Health Authority. Put up on 14.5.1985 for report of the Director Central Food Laboratory, Ghaziabad. Sd/- Senior Sub Judge, (sic) Hamirpur, H.P." 15. On May 14, Mr. Verma, Food Inspector as well as accused were present. The following order was passed by the learned Magistrate: "14.5.1985 Pr. Sh. K.S. Verma, Food Inspector. Accused person Desh Raj with Csl. Sh. S.L. Sharma, Advocate. Report of the Director, Central Food Laboratory also received. The accused person released on bail of Rs. 2,000. For evidence of the complainant. PW-1 K.S. Verma and Daljit Singh be summoned for 2.9.1985. The following order was passed by the learned Magistrate: "14.5.1985 Pr. Sh. K.S. Verma, Food Inspector. Accused person Desh Raj with Csl. Sh. S.L. Sharma, Advocate. Report of the Director, Central Food Laboratory also received. The accused person released on bail of Rs. 2,000. For evidence of the complainant. PW-1 K.S. Verma and Daljit Singh be summoned for 2.9.1985. Sd/- Chief Judicial Magistrate, Hamirpur (HP)." The learned Sessions Judge has observed in the judgment impugned in the present appeal : "The above extracted relevant orders of the trial Court clearly negative the non-compliance (sic) of Section 13 (2-B) of the Act." 16. The above sentence conveys the meaning as if the learned Sessions Judge rejected the argument on behalf of the accused of non-compliance with Section 13(2-B). The sentence undoubtedly means and conveys that there was nothing to show regarding non-compliance with Section 13(2-B) of the Act. Submission of Mr. Dogra, learned Counsel for the accused, however, appears to be well founded that either there is an error on the part of the learned Sessions Judge in making the above observations or on the part of the Stenographer in taking the dictation and/or typing inasmuch as the learned Sessions Judge has upheld the contention of the accused that in fact there was non-compliance with the provisions of Section 13(2-B) of the Act. This is also clear from the earlier part of the judgment wherein the learned Sessions Judge observed as under: "In the instant case also, there is absolutely nothing on the lower Court record as to point out the compliance of Section 13 (2-B) of the Act". 17. In my opinion, the limited submission of Mr. Dogra, that there is some error somewhere is correct. On merits, however, the argument advanced by Mr. Thakur deserves to be upheld that there is nothing to show that there was non-compliance with the provisions of Section 13 (2-B) of the Act as there is no evidence to show that the despatch was not made within a period of one month from the receipt of the part of the sample as required by sub-section (2-B) of Section 13of the Act. The learned Sessions Judge was, therefore, in my considered opinion, not right in acquitting the accused on the ground that the provisions of Section 13 (2-B) of the Act had not been complied with and the accused was entitled to acquittal. 18. The learned Sessions Judge was, therefore, in my considered opinion, not right in acquitting the accused on the ground that the provisions of Section 13 (2-B) of the Act had not been complied with and the accused was entitled to acquittal. 18. Since it cannot be concluded that the provisions of Section 13(2-B) had been contravened, it is not necessary for me to enter into larger question whether the said provisions are mandatory or merely directory and I refrain from expressing any opinion in the instant case. 19. The next ground weighed with the learned Sessions Judge was that there was non-compliance with the provisions of Section 313 of the Code in not putting a relevant question to the accused when his statement was recorded. Section 313 of the Code requires the Court to put circumstances appearing in the evidence of the prosecution against the accused so as to enable him to explain them. 20. In the present case, a question was put by the Court to the accused under Section 313 of the Code that the sample of Ajwain was found to be adulterated as per the report of Director, Central Food Laboratory, Ghaziabad, and what he had to say about it. According to the learned Sessions Judge, the report of the Director, Central Food Laboratory, Ghaziabad, made no mention that the sample was "adulterated". In the opinion of the learned Sessions Judge, therefore, no such question could have been put by the learned Magistrate to the accused that the sample was "adulterated" as per the report of Director, Central Food Laboratory, Ghaziabad and the accused should not have been asked whether he wanted to state anything on that aspect. According to the learned Sessions Judge, the learned Magistrate while recording the statement of the accused under Section 3*13 of the Code, "imported" the word "adulterated" on his own and by describing the sample to be "adulterated", a question was put. The course adopted by the learned Magistrate was, thus, in the opinion of the learned Sessions Judge, not in consonance with law and the trial and conviction were vitiated. 21. With respect, I am unable to uphold the above view of the learned Sessions Judge. In my view, the learned Sessions Judge was not right. It is true that the report, Ex. 21. With respect, I am unable to uphold the above view of the learned Sessions Judge. In my view, the learned Sessions Judge was not right. It is true that the report, Ex. PX by the Director of Central Food Laboratory, Ghaziabad, did not state that the sample was "adulterated". The question, however, is whether any illegality has been committed by the learned Magistrate in putting the question to the accused in the statement under Section 313 of the Code, when he asked the accused to explain as to what he had to say about the article in question found to be "adulterated". In my considered opinion, the learned Magistrate has not committed any error. In this connection, it is necessary to keep in mind the definition of the term "adulterated" in sub-section (ia) of Section 2 of the Act. As per the definition, if an article of food falls within any of clauses (a) to (m) of sub-section (i-a), it shall be "deemed" to be "adulterated". The legal position, therefore, is that if the case is covered by one or more of clauses (a) to (m) of Section 2(i-a) of the Act, the article of food shall be deemed to be "adulterated" within the meaning of the Act. Once a report is submitted by the Director, Central Food Laboratory, Ghaziabad, with his opinion that the article falls below the prescribed standard, it is deemed to be "adulterated" and there cannot be two opinions about it. Obviously, therefore, the learned Magistrate was wholly right in putting the question to the accused under Section 313 of the Code that an article of food purchased by the Food Inspector from him was found to be "adulterated" as per the report of the Director, Central Food Laboratory, Ghaziabad and what he had to say. The learned Sessions Judge was not right in observing that something was "imported" by the learned Magistrate on his own and question was put by adding the word "adulterated", which had caused prejudice to the accused. On the contrary, it appears to me that it was expected by the learned Magistrate to put such question so as to enable the accused to put forward his defence in his statement under Section 313 of the Code against the report of Director, Central Food Laboratory, Ghaziabad, since as per legislative mandate, the sample was deemed to be adulterated. On the contrary, it appears to me that it was expected by the learned Magistrate to put such question so as to enable the accused to put forward his defence in his statement under Section 313 of the Code against the report of Director, Central Food Laboratory, Ghaziabad, since as per legislative mandate, the sample was deemed to be adulterated. The finding recorded by the learned Sessions Judge that there was non-compliance of Section 313 of the Code, therefore, cannot be upheld. 22. Mr. Dogra, learned Counsel for the accused then contended that none of the sub-clauses (e) to (1) of clause (i-a) of Section 2 had been attracted and the order of conviction and sentence was illegal and contrary to law. For such submission, the counsel referred to the charge framed by Chief Judicial Magistrate, Hamirpur. In the charge, it was alleged that the accused had committed an offence punishable under Section 16(1-A) (i). Section 16(1-A) enacts that if any person whether by himself or by any other person on his behalf, sells (i) any article of food, which is adulterated within the meaning of any of the sub-clauses (e) to (1) (both inclusive) of clause (i-a) of Section 2, he shall be dealt with in accordance with law and be punished. The argument of learned Counsel is that when charge was framed under Section 16(1-A), sub-clauses (e) to (1) could be invoked and nothing more. Since the case was not covered by sub-clauses (e) to (1), no conviction could be recorded under any other clause and the order passed by the learned Magistrate was illegal and unlawful. 23. Mr. Thakur fairly conceded that none of the sub-clauses (e) to (1) was applicable and the case on hand was not covered by any of them. He, however, referred to sub-clause (m) which declares that if the quality or purity of the article falls below the prescribed standard or its constituents are present in quantities not within the prescribed limits of variability, it is an article of food which shall be deemed to be "adulterated". According to Mr. Thakur, the report of the Director of Central Food Laboratory, Ghaziabad, Ex. According to Mr. Thakur, the report of the Director of Central Food Laboratory, Ghaziabad, Ex. PX, clearly shows that "the sample does not conform to the standard of Ajwain laid down in item A.05.23 of PFA Rules (1955) in that (i) Inorganic and organic extraneous matter are above the maximum prescribed limits (ii) sample showed live and dead insects as well as contamination with rodent excreta". Thus, it is an article of food deemed to be "adulterated" within the meaning of the Act. 24. The argument on behalf of the accused is that since the allegation did not relate to clause (m) and specific charge was under Section 16 (1-A) (i) of the Act, it was not open to the prosecution to rely on clause (m). A similar contention, however, was negatived by the Supreme Court in K. Krishna Iyer v. State of Kerala, (1993) 3 SCC 226 : 1993 (1) FAC 119 (SC). The Apex Court in that case held that even if the accused is charged under Section 16 (1-A), he could be convicted under Section 16 (l)(a) (i) of the Act. In the opinion of the Supreme Court, since the penalty for an offence under Section 16 (l)(a)(i) is less than the penalty prescribed for the offence under Section 16(1-A), which is graver offence, there is no impediment in the way of the Court on the finding of fact to convert the conviction from the one under Section 16 (1-A) to one under Section 16 (l)(a) (i) of the Act, notwithstanding the fact that the accused had been charged under Section 16(1-A) of the Act. Such an action on the part of the Court cannot be said to be illegal or contrary to law. The Court stated : "We are unable to accept the argument of the learned Counsel for the appellant that since the appellant had been charged for an offence under Section 16 (1-A) of the Act, he could not be convicted for an offence under Section 16(l)(a)(i) of the Act. There is no basis for such an argument. The Court stated : "We are unable to accept the argument of the learned Counsel for the appellant that since the appellant had been charged for an offence under Section 16 (1-A) of the Act, he could not be convicted for an offence under Section 16(l)(a)(i) of the Act. There is no basis for such an argument. The penalty for an offence under Section 16(l)(a)(i) is admittedly less than the penalty prescribed for the offence under Section 16(1-A), which is a graver offence and therefore, there is no impediment in the way of the Court, on the findings of the fact recorded by it, to covert the conviction of the appellant from the one under Section 16(1-A) to the one under Section 16(l)(a)(i) of the Act, notwithstanding the fact that the appellant had been charged-sheeted for an offence under Section 16(1-A) of the Act. In view of our findings recorded above, we alter the conviction of the appellant from the one under Section 7(1) read with Section 16(1-A) of the Act to the one under Section 7(1) read with Section 16(l)(a)(i) of the Act." 25. Even that contention, therefore, has no force and deserves to be rejected. 26. The last submission of Mr. Dogra, however, has substance and it has been upheld by the learned Sessions Judge. It was argued before the learned Sessions Judge that Ajwain, which was kept by the accused in his shop was not for human consumption and the provisions of the Act were not applicable to the said commodity. For such submission, the attention of the Court was invited to deposition of prosecution witnesses. Now, over and above, Food Inspector Verma, both the Panch witnesses have been examined by the prosecution. In their examination-in-chief they supported the case of the Food Inspector. In cross-examination, however, they stated that Ajwain was not for sale or for human consumption but was kept for cattle. It was submitted that when the witnesses of the prosecution themselves have stated that Ajwain was not kept for sale or for human consumption, the learned Magistrate had committed an error in applying the provisions of the Act and in convicting the accused. PW 3 Amar Nath and PW 4 Mool Raj, both supported the accused on that point and further stated that even a play-board was kept to that effect. PW 3 Amar Nath and PW 4 Mool Raj, both supported the accused on that point and further stated that even a play-board was kept to that effect. The accused also in his statement under Section 313 of the Code admitted that Food Inspector Verma had come to his shop and had taken sample of Ajwain from his business premises, but further stated; "I had kept the Ajwain for consumption by cattle and had displayed signboard to such effect." 27. In view of the above categorical statement by both Panch witnesses PW 3 Amar Nath and PW 4 Mool Raj as also statement of the accused under Section 313 of the Code, though on several points, the learned Sessions Judge was wrong in acquitting the accused and committed an error of law, the final conclusion arrived at by her in acquitting the accused cannot be said to be contrary to law or otherwise illegal and, hence, does not called for interference. The order of acquittal deserves to be upheld and is hereby upheld. 28. For the foregoing reasons, in my opinion, the appeal deserves to be dismissed and is, accordingly, dismissed. Acquittal of the respondent-accused is hereby confirmed. The bail bonds stand discharged. Appeal dismissed.