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Madhya Pradesh High Court · body

2002 DIGILAW 793 (MP)

State of M. P. v. Deemak Chand

2002-08-21

S.L.JAIN

body2002
JUDGMENT : S.L. JAIN, J. 1. Being aggrieved by the judgment and order of acquittal passed by the Chief Judicial Magistrate, Chhindwara, the State of Madhya Pradesh, has filed this appeal under section 378(3) of the Code of Criminal Procedure for setting aside the judgment and order of the trial Court. By the impugned judgment and order dated 30-8-1989 the accused/respondent Dimak Chand was acquitted of the offence punishable under section 7(i) read with section 16(1)(a)(i) of Prevention of Food Adulteration Act, 1954 (hereinafter referred to as the ‘Act’). Leave to appeal was granted on 10-1-1990. 2. The case of the prosecution, in short, is that the respondent was a milk vendor. On 13-8-1986 he was carrying two containers of milk on a bicycle. PW-1, T.P. Tiwari, the Food Inspector, exercising jurisdiction over Parasia accosted the respondent and disclosed his identity. On being questioned, the respondent informed the Food Inspector that he was carrying the mixed milk of buffalo and cow for sale. The Food Inspector expressed his desire to purchase the milk for the purpose of analysis. He served a notice in writing of his intention to have the milk analysed. He, having purchased 660 mili litre of milk from the respondent, divided it into three equal parts in three different bottles, marked, sealed fastened them and took signatures of respondent. 3. The Food Inspector sent one of the parts for analysis to the Public Analyist under intimation to Local Health Authority and sent the remaining two parts to the said Authority. The Public Analyist, after analysis of the sample, reported that the milk did not conform to the standard prescribed under the law for a mixture of buffalo and cow milk and was therefore, adulterated. A copy of the report with required intimation was forwarded to the respondent. After complying all the formalities the Food Inspector filed a complaint against the respondent for the offence punishable under section 7(i) read with section 16(1)(a)(i) of the Act. 4. A charge was framed by the trial Court against the respondent for an offence punishable under section 7(i) read with section 16(1)(a)(i) of the Act. The respondent abjured guilt. His defence is that he was a farmer and was not engaged in dairy farming. He was never a milk vendor. 5. 4. A charge was framed by the trial Court against the respondent for an offence punishable under section 7(i) read with section 16(1)(a)(i) of the Act. The respondent abjured guilt. His defence is that he was a farmer and was not engaged in dairy farming. He was never a milk vendor. 5. After concluding the trial, the learned Chief Judicial Magistrate, Chhindwara did not find the respondent guilty for the aforesaid offence and as such by the impugned judgment and order dated 30-8-1989 acquitted him of the charge levelled against him. It is against this judgment and order, the State has come up in appeal. 6. I have heard Shri Dinesh Joshi, learned Panel Lawyer, appearing for the appellant/State and Shri A.N. Choubey, learned counsel appearing for the respondent. 7. Learned Panel Lawyer assailed the acquittal of the respondent on the ground that from the evidence of T.P. Tiwari, PW-1, the Food Inspector, offence against the respondent was proved beyond all reasonable doubt. Learned Chief Judicial Magistrate, Chhindwara was not justified in acquitting the respondent. An against this, Shri A.N. Choubey, learned counsel for the respondent has supported the impugned judgment and order of acquittal. 8. I have carefully gone through the record of the trial Court. PW-1, T.P. Tiwari, the Food Inspector has stated in his evidence that on the relevant date he was posted as Food Inspector. His appointment order has also been proved by him. He has stated that on the relevant date at about 8 A.M. he saw the respondent selling milk. On enquiry the respondent stated that he was carrying mixed milk of cow and buffalo for sale. Respondent also informed him that he goes to Parasia regularly to sell the milk. The Food Inspector introduced himself to the respondent and served a notice in prescribed form No. 6 in presence of the witnesses. This notice bears signature of the respondent and the witnesses. The Food Inspector then purchased 660 mili litre of milk from the respondent, divided the sample then and there into three equal parts in three bottles. He marked and fastened seal on each part. He also affixed the slip provided to him by the Director, Central Food Laboratory. The signatures of the respondent were obtained on all the bottles. 9. The Food Inspector then purchased 660 mili litre of milk from the respondent, divided the sample then and there into three equal parts in three bottles. He marked and fastened seal on each part. He also affixed the slip provided to him by the Director, Central Food Laboratory. The signatures of the respondent were obtained on all the bottles. 9. Food Inspector has also stated that he prepared the Panchnama Ex.P-4 in respect of the proceedings taken by him on the spot. He sent one part for analysis to the Public Analyist and sent the remaining two parts to the Local Health Authority. Statement of PW-1, T.P. Tiwari is corroborated by documentary evidence. The Local Health Authority, after institution of the prosecution against the respondent forwarded a copy of the report of the result of the analysis to the respondent informing him that if he so desires, he may make an application to the Court within a period of ten days from the date, the copy of the report is served on him, to get the sample analysed by the Central Food Laboratory. PW-1, T.P. Tiwari was cross examined at length but nothing adverse has been brought forth rendering his evidence unreliable. 10. It is true that PW-2, Nanha and PW-3, Prahlad have not supported the Food Inspector, but PW-2, Nanha admitted in his cross examination that the Food Inspector Tiwari called him and his thumb impressions were obtained on Ex.P-2, Ex.P-3, and Ex.P-4. Prahlad, PW-3 has also admitted his signatures on Ex.P-2, Ex.P-3 and Ex.P-4. If the milk was not purchased in their presence and other formalities were not completed by the Food Inspector in their presence there was no reason for them to put their signatures on the Panchnama and other documents prepared by the Food Inspector. 11. The learned Magistrate acquitted the accused only on the ground that Panch witnesses did not corroborate the evidence of Food Inspector. But, there is no rule of law or prudence that the evidence of Food Inspector should be corroborated by independent witnesses. A conviction can be based on the sole testimony of the Food Inspector if found reliable. The Food Inspector had no animosity towards the respondent. No personal allegations are made against the Food Inspector by the respondent. But, there is no rule of law or prudence that the evidence of Food Inspector should be corroborated by independent witnesses. A conviction can be based on the sole testimony of the Food Inspector if found reliable. The Food Inspector had no animosity towards the respondent. No personal allegations are made against the Food Inspector by the respondent. Where the trial Court did not correctly appreciate the legal position and acquitted the accused only on the ground that the Panch witnesses did not corroborate the Food Inspector, the High Court can set aside the order of acquittal. The powers of the High Court in appeal against acquittal are not different from those while hearing the appeal against the conviction. 12. Learned counsel appearing for the respondent has submitted that it will not be proper to interfere with the order of acquittal after ten years as the respondent has already suffered sufficient harassment. There is no law prohibiting the Court from interfering with the order of acquittal solely on the ground of long lapse of time. 13. Learned counsel appearing for the respondent has submitted that from the evidence of defence witness it is clear that respondent was not a milk vendor. He was not involved in dairy-farming. T.P. Tiwari, PW-1, has stated that the accused informed him that he was carrying milk with him for sale. Even if the respondent was not a regular vendor of milk, from the evidence of Food Inspector it is established that on the relevant date was selling the milk. It has also been very well established from the evidence of T.P. Tiwari, PW-1 that the respondent sold him milk for using the same for analysis. A sale of an article of food to the Food Inspector for using it for analysis would be a sale as is specifically mentioned in clause (xiii) of section 2 of the Act, whether it is voluntary or not and even though there is an element of compulsion in it. [See: Mohd Yamin vs. State of U.P. and Another, AIR 1973 SC 484 and The Food Inspector, Calicut vs. Cherukattil Gopalan and Another, AIR 1971 SC 1725 ]. 14. When the seller readily agrees to allow the Food Inspector to take the sample and accepts the price it will be a case of voluntary sale. [See: Mohd Yamin vs. State of U.P. and Another, AIR 1973 SC 484 and The Food Inspector, Calicut vs. Cherukattil Gopalan and Another, AIR 1971 SC 1725 ]. 14. When the seller readily agrees to allow the Food Inspector to take the sample and accepts the price it will be a case of voluntary sale. If the vendor does not agree to the sample being taken, Food Inspector may take the sample even against his wishes. In that case also it will be a sale under Clause (xiii) of section 2 of the Act. When the Food Inspector tenders the price there is full compliance with section 10(3) of the Act and the transaction would be a sale irrespective of the fact that the seller declined to accept the price. It is not necessary for the prosecution to prove that the accused sold the article to other persons or carried on the business of sale of the article as a regular feature. Thus, the sale of an article of food for analysis will not take the case out of clause (xiii) of section 2 of the Act. 15. From the report of Public Analyist, Ex.P/7 it is clear that in the milk purchased from the respondent the fat percentage was 3.5 and solid non-fat percentage was 5.16. As per the standard prescribed for the mixed milk of buffalo and cow fat percentage should be 5.0 and non-fat percentage should be 9. Thus, the milk sold by the respondent to the Food Inspector was below the prescribed standard and was therefore, adulterated. Any document purporting to be a report signed by Public Analyist, unless it has been superceded by the report of Director, Central Food Laboratory, may be used as evidence of the facts stated therein in any proceedings under the Act. Thus, from the evidence of Food Inspector, T.P. Tiwari and the report of Public Analyist, it is established that the respondent sold adulterated milk. Simply because the Panch witnesses have been won over by the accused, the otherwise reliable evidence of the Food Inspector could not have been discarded. Even where the attesting witnesses turned hostile, the evidence of Food Inspector alone regarding purchase is sufficient. Where the Food Inspector completed all the formalities, required for taking sample and the sample was found adulterated, the Chief Judicial Magistrate was not justified in acquitting the respondent. 16. Even where the attesting witnesses turned hostile, the evidence of Food Inspector alone regarding purchase is sufficient. Where the Food Inspector completed all the formalities, required for taking sample and the sample was found adulterated, the Chief Judicial Magistrate was not justified in acquitting the respondent. 16. Accordingly, this appeal is allowed. The impugned judgment and order of acquittal dated 30-8-1989 passed by the Chief Judicial Magistrate, Chhindwara, in Criminal Case No. 3943/86 is set aside and the respondent Dimak Chand is convicted for the offence punishable under section 7(i) read with section 16(1)(a)(i) of the Act. 17. So far as the question of sentence is concerned, section 16 of the Act provides that offence of sale of adulterated article shall be punishable with imprisonment for a term which shall not be less than six months and with fine which shall not be less than Rs. 1,000/-. Thus, the minimum sentence is prescribed under the Act. there is no justification for awarding sub minimal sentence. I, therefore, imposes upon the respondent Dimak Chand a punishment of rigorous imprisonment for six months and a fine of Rs. 1,000/- (Rupees one thousand). In default whereof, he shall undergo a further rigorous imprisonment for a period of one month. The period of imprisonment, if any, already undergone by the respondent during pendency of trial or of the appeal shall be adjusted against the sentence imposed hereinabove. The respondent shall surrender within fifteen days from today, before the Chief Judicial Magistrate, Chhindwara, failing which all steps shall be taken by the trial Magistrate to take him in custody to serve out the sentence.