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2004 DIGILAW 286 (PNJ)

State of Punjab v. Jagdish Chand

2004-03-10

M.M.KUMAR

body2004
JUDGMENT M.M. Kumar, J. - This is State appeal filed under Section 378(3) of the Code of Criminal Procedure, 1973 against the acquittal of respondents in case FIR No. 5 dated 10.1.1990 P.S. Civil Lines, Patiala registered under Section 7 of the Essential Commodities Act, 1955 (for brevity the Act) for violation of Clause 3 of the Punjab Regulation of Compounded Cattle, Food, Concentrates and Mineral Mixtures Order, 1988 (for brevity the Order). 2. The prosecution version as disclosed in the FIR is that on 14.9.1989 Atma Singh, Deputy Director, Dairy Development Patiala accompanied by Parshotam Dass and Darshan Singh, Poultry Extension Officer, Ludhiana and Assistant Dairy Extension Officer, Hoshiarpur respectively visited the premises of the accused respondent Jagdish Chand son of Brij Lal. The cattle feed was available in the shop for sale and Jagdish Chand was present. Out of 5 bags one cattle feed bag was taken at random and sample was drawn. Three samples were taken out of the said bag. It is stated that they were spread on a newspaper which was dried and cleaned. Thereafter the sample was made homogeneous. Three samples of cattle freed weighing about 400 gms. each were taken. The cattled feed was put in dry and clean plastic bags and then air was relieved from those bags. The sealed bags were put in three cotton bags. Sample proformas were inserted in each of the bags and thereafter the cotton bags were tied with string and sealed with the seal of Dairy Extension Officer, Ludhiana Parshotam Dass at four different places. One part of the sample was handed over to the accused and the remaining two were retained by Parshotam Dass. Seizure memo was prepared and signed by Parshotam Dass and Darshan Singh. It was also signed by accused Jagdish Chand. On the basis of the complaint submitted by Atma Singh, FIR was recorded being FIR No. 5 of 10.1.1990, both the accused were charged under Section 7 of the Act for having violated the provisions of Clause 3 of the Order. They claimed trial. The special Judge, Patiala on the basis of the evidence led has found them not guilty of the charged offences. They claimed trial. The special Judge, Patiala on the basis of the evidence led has found them not guilty of the charged offences. The brief resume of the reasons given by the Special Judge is as under : a) Atma Singh, Deputy Director was not authorised to take the sample; b) the procedure adopted for taking sample is not in accordance with the law laid down by this Court in the case of Jarnail Singh and ors. v. State of Punjab, 1988(1) RCR(Crl.) 374 (P&H); c) no proper investigation has been carried out and it is has not been pointed out whether Jagdish Chand was the sole proprietor or partner of the firm; and d) it is not clear as to whether accused No. 1 Jagdish Chand was the manufacturer. 3. On the basis of the afore-mentioned reasons, the Special Judge recorded a finding that it cannot be said that charge has been proved and there is violation of Clause 3 of the Order which in turn is punishable under Section 7 of the Act. 4. Shri D.S. Bishnoi, learned State counsel has argued that all the witnesses namely PW.1 to PW.4 have supported the version disclosed in the FIR that the sample was not in accordance with the required standard as laid down by the Bureau of Indian Standards (for brevity BIS). The sample was found to the sub-standard and below BIS specifications. According to the ld. State Counsel, the discrepancy pointed out with regard to the procedure of sample cannot be considered fatal to the success of the prosecution. He has further submitted that in the cross-examination nothing worthwhile could be extracted from the afore-mentioned four witnesses. The learned counsel has maintained that no prejudice has been suffered by the accused respondent on account of the procedure followed for taking sample. He has also placed reliance on the report of the Analyst Ex.PW3/A and argued that it clearly showed that the sample was found to be sub-standard. The learned counsel has maintained that no prejudice has been suffered by the accused respondent on account of the procedure followed for taking sample. He has also placed reliance on the report of the Analyst Ex.PW3/A and argued that it clearly showed that the sample was found to be sub-standard. He has placed reliance on the opinion expressed by the Analyst in the afore-mentioned document which reads as under : "From examination of the sample herein referred to and the results obtained by analysis I am of the opinion that the Ash Insoluble in dilute Hydrochloric Acid of the contents of the sample is 4.80 percent against the maximum BIS requirement of 4.0 percent, the crude-protein and Crude Fat of the contents of the sample are 17.32% and 1.2 percent against the minimum BIS requirement of 20.0 percent 2.5 percent respectively. The seals affixed on the container of the sample were found intact on arrival and tallied with the specimen impression of the seal separately sent by you." On the basis of the above submissions, the learned counsel has argued that it was a simple case of conviction whereas the Special Judge has erred in acquitting the accused-respondents. 5. Shri Sunil Chadha, learned counsel for accused respondent No. 1 has submitted that in the statement made by PW 4 Atma Singh, Deputy Director it has been accepted in his cross-examination that he was not authorised to take the sample and once it is so then no conviction could be recorded by the Special Judge. Learned counsel has then argued that the accused is merely a dealer and was selling pre-manufactured item and the sample was taken from a stitched bag as is clear from entry No. 7 of Ex.PB. Learned counsel has further argued that sample was drawn on 14.9.1989. However, a reference has been made to non-existing document i.e. Form I which infact stood omitted by amendment dated 7.2.1989. In support of his submission, the learned counsel has placed reliance on a notification dated 7.2.1989 issued by the Department of Food and Supply, Government of Punjab omitting Form I on which reliance has been placed by the analyst in his report. A perusal of the report extracted above shows that the standard laid down by BIS has been relied upon stating that it requires 4 percent max. of Ash Insoluble in dilute Hydrochloric Acid. A perusal of the report extracted above shows that the standard laid down by BIS has been relied upon stating that it requires 4 percent max. of Ash Insoluble in dilute Hydrochloric Acid. According to the learned counsel the aforementioned Form I stood omitted on 7.2.1989 and no reliance could have been placed for relying on the requirement given in Form I. Learned counsel has further urged that under Clause 11 of the order, the power to enter, search and seizure has been given to the Registering Authority or any officer authorised by him in writing with a view to secure compliance of the provisions of the Order. The Registering Authority prescribed under clause 11 has been defined by clause 2(x) to mean the Milk Commissioner or any other person authorised by him to exercise the power of Registering Authority. Learned counsel has thus argued that in view of the admission made by Atma Singh he could not have obtained the sample as he was not authorised by virtue of Clause 11 of the Order. No document has been placed on record showing the authorisation to him by the Milk Commissioner. 6. Shri D.S. Brar, learned counsel for accused-respondent No. 2 has argued that no independent witness has been joined while taking the sample nor there is any evidence to connect accused No. 2 with accused No. 1 as no vouchers or bills showing the sale of cattle feed have been produced on record which might have been issued by accused No. 2 to accused No. 1. Learned counsel has maintained that the procedure prescribed by the Indian Standard Specifications for taking cattle feed sample should be adhered to as has been laid down in Jarnail Singhs case (supra). Learned counsel has maintained that the sample should be put in a clean, dry and air tight glass or other suitable container and sample taken in a polythene bag would be in violation of the standard for taking of sample. 7. After hearing the learned counsel for the parties, I am of the considered view that this appeal is devoid any merit because a perusal of Class 11 of the Order provides that it is only the Registration Authority or any officer authorised by him who have power of entry, search and seizure. 7. After hearing the learned counsel for the parties, I am of the considered view that this appeal is devoid any merit because a perusal of Class 11 of the Order provides that it is only the Registration Authority or any officer authorised by him who have power of entry, search and seizure. According to sub-clause (x) of clause 2 of the Order, the Registration Authority has been defined to mean Milk Commissioner or any other person authorised by him. The afore-mentioned Clauses 2(x) and 11 of the Order are reproduced hereunder for facility of reference : "2. Definitions. - In this order, unless the context otherwise requires, - (i) to (ix) xx xx xxx (x) "Registration Authority" means the Milk Commissioner or any other person authorised by him to exercise the powers of a Registration Authority on his behalf under this order; and" "11. Power or entry, search and seizure. - (1) The Registration Authority or any Officer authorised by him in writing in this behalf may, with a view to securing compliance with the provisions of this Order or to satisfy himself that any such provision had been complied with - i) at any time enter and inspect any place or premises which is used or believed to be used for the manufacture, distribution or sale of compounded cattle feed, concentrates and mineral mixtures. ii) search for the seizure of any compounded cattle feed, concentrates or mineral mixtures in any place or premises together with packages, covering, receptacles containing such compounded cattle feed, concentrates or mineral mixtures where he has reasons to believed that the contravention of the provisions of this Order has been, is being or is about to be caused : Provided that in exercising the power of entry and search under this clause due regard shall be paid by the Registration Authority or any other officer authorised by him, as the case may be, to the special and religious customs of the occupants of the place or premises so entered and searched. (2) The provisions of the Section 100 of the Code of Criminal Procedure, 1973 (Central Act No. 2 of 1974) relating to search and seizure shall, so far as may be, apply to searches and seizures made under this Order. (2) The provisions of the Section 100 of the Code of Criminal Procedure, 1973 (Central Act No. 2 of 1974) relating to search and seizure shall, so far as may be, apply to searches and seizures made under this Order. (3) Every dealer including his agent or servant incharge of the place or premises which is searched or sought to be searched under the provisions of clause (1) shall allow the authority making the demand and access to such place or premises and shall also answer truthfully and to the best of his knowledge or belief all questions put to him." 8. Clause 11(i) of the Order makes it abundantly clear that only an officer authorised by the Registration Authority or Registration Authority itself could enter and inspect any place or premises which is being used for manufacture, distribution or sale of compounded cattle feed, concentrates, minerals and mixtures. Sub-clause 2(x) of the Order defines Registration Authority to mean the Milk Commissioner or any other person authorised by him. It has been admitted by Atma Singh PW4, Deputy Director, in his cross- examination that there was no authorisation in his favour by the competent authority. Therefore, on this ground alone, the order of acquittal passed by the ld. Special Judge deserves to be upheld. 9. Another ground for recording agreement with the Special Judge is that Form I stood omitted on 7.2.1989 as per the notification issued by the Department of Food and Supply, Punjab. A copy of the notification has been placed on record as Mark "A". However, reliance has still been placed on Form I by the Analyst in his report Ex.PW 3A dated 18.10.1989 which is in respect of sample taken on 14.9.1989. In the afore-mentioned report specific reliance has been placed on BIS requirement which provided that Ash insoluble in dilute hydrochloric acid and the contents of the sample should not be exceeding 4 percent whereas the sample was found to have these contents to the extent of 4.80 percent. No reliance could have been placed on BIS specification as Form I stood omitted on 7.2.1989 which provided for BIS specification. No reliance could have been placed on BIS specification as Form I stood omitted on 7.2.1989 which provided for BIS specification. It has come on record that the sample was taken from a stitched bag as is apparent from Entry No. 7 of Ex.PB and the dealer namely accused No. 1 cannot in any case be held guilty if the sample has been found to be sub-standard. The method of taking sample can also not be approved. Although no procedure for taking of sample has been laid down in the Order but, reference has been made to the standard prescribed by BIS. With regard to sample of compounded feeds for cattle, it has been provided in the book titled as Indian Standard Specification for Compounded Feeds for Cattle (Third Revision) Appendix "C" that the sample is required to be taken in a clean and dry glass container which should be of such a size that the container is almost completely filled by the sample. The afore-metioned general requirement of sampling provided in Appendix "C" read as under : "APPENDIX C" SAMPLING OF COMPOUNDED FEEDS FOR CATTLE. GENERAL REQUIREMENTS OF SAMPLING. C-1.0 In drawing, preparing storing and handling samples, care should be taken that the properties of the material are not affected. The following precautions and directions shall be observed : C-1.1. Samples shall be taken in a protected place not exposed to damp air, dust or soot. C-1.2 The sampling instrument shall be clean and dry when used. C-1.3 Precautions shall be taken to protect the samples, the material being sampled, the sampling instrument and the containers for samples from Adventitious contamination. C-1.4 The samples shall be placed in clean and dry glass containers. The sample containers shall be of such a size that they are almost completely filled by the sample. C-1.5 Each container shall be sealed air-tight with a stopper or a suitable closure after filling in such a way that it is not possible to open and reseal it without detection, and marked with full details of sampling, date of sampling, batch or code number, name of the manufacturer and other important particulars of the consignment. C-1.6 Samples shall be stored in such a manner that there is no deterioration of the material. C-1.6 Samples shall be stored in such a manner that there is no deterioration of the material. C-1.7 Sampling shall be done by a person agreed to between the purchaser and the vendor and if desired by any of them, in the presence of the purchaser (or his representative) and the vendor (or his representative)." 10. The afore-mentioned procedure of sampling providing for general method which in other Control Orders like the one mentioned in the judgment of Jarnail Singh (supra) namely Fertilizer Control Order 1957 have been recognised and followed. Similar standard can be imported for taking sample under the instant Order also while dealing with the cattle feed. On that account also, the appeal is liable to be dismissed. 11. I am further of the view that accused No. 2 has not been connected with the sample showing that he was manufacturer of the cattle feed. The investigating agency has failed to seize any bill or voucher which may prove that the cattle feed was sold by manufacturer accused No. 2 to the retailer accused No. 1. It is well established that when the trial Court has acquitted the accused then the appellate Court should be slow to interfere unless compelling reasons exist on record. Merely because two views are possible, the appellate Court would not re-evaluate the evidence and take a different view. For the afore- said proposition, reliance can be placed on two judgments of the Supreme Court in the cases of Joseph v. State of Kerala, (2003) 1 SCC 465 and Garasia Ratubha Hanubha v. State of Gujarat, 1997 SCC (Crl.) 195. Therefore, the instant appeal is liable to be dismissed. For the reasons recorded above, this appeal fails and is dismissed. The cumulative effect of the above discussion is that the order of the Special Judge, Patiala acquitting the accused is maintained. The bail bonds of the accused and sureties, if any shall stand discharged. Appeal dismissed.