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Madhya Pradesh High Court · body

2007 DIGILAW 110 (MP)

State of M. P. v. Sukhlal

2007-01-25

U.C.MAHESHWARI

body2007
JUDGMENT 1. This appeal was preferred on behalf of the State of Madhya Pradesh through Food Inspector being aggrieved by the judgment dated 1.9.1994 passed by the Chief Judicial Magistrate, Seoni in Criminal Case No. 592/ 82 acquitting to the respondent from the charge punishable under section 7 (i) read with section 16 (1) (a) (i) (ii) of the Prevention of Food Adulteration Act (in short "the Act"). 2. The facts giving rise to this appeal are that the complainant Y.K. Shrivastava being Food Inspector posted in the respective area for the purpose of sampling the food substance under the provisions of the Act. On 17.1.1982 at about 11 :20 'O' clock in the morning he intercepted to the respondent at village Lughawara while he was carrying the mixed milk of buffalos and cows for selling the same. After giving requisite notice for the purpose of examination he purchased 660 ml. milk from him for which after payment of consideration a receipt was also taken. The same was sealed in three parts with official seal and signature of such officer, witnesses and the respondent. The seizure memo by mentioning the entire procedure adopted by him was also prepared. Subsequent to it two samples were deposited with the Local Health Authority, Seoni while one sample was sent to State Public Analyst along with Form No.7, from where the authority received the examination report. According to it, the seized milk was not found as per standard and norms prescribed under the Act. According to the opinion of expert the samples does not have the standard laid down under the Act. Besides this it was also alleged that he was selling the milk without having any requisite licence. The requisite sanction for prosecution against the respondent was taken from the competent authority and a complaint was filed against the respondent. 3. As alleged after filing the complaint the respondent was intimated regarding his right to get examine another sample from the Central Food Laboratory as per the provision of section 13 (2) of the Act. On appearance of the respondent plea was recorded, on denying the same, the trial was held. After recording the evidence at the stage of appreciation of it, the respondent was acquitted from the alleged charge. Hence, the present appeal was preferred at the instance of the State against the acquittal of the respondent. 4. On appearance of the respondent plea was recorded, on denying the same, the trial was held. After recording the evidence at the stage of appreciation of it, the respondent was acquitted from the alleged charge. Hence, the present appeal was preferred at the instance of the State against the acquittal of the respondent. 4. While arguing the appeal Shri Pramod Choubey, learned Government Advocate assailed the impugned judgment on the following grounds : (a) The provisions of the Act have been duly complied with by the Food Inspector Shri Y.K. Shrivastava (PW 1) regarding seizure and also for subsequent proceedings. The sufficient evidence was available before the trial Court but it was not considered in accordance with law. Hence, the impugned judgment requires re-consideration at this stage for holding conviction to the respondent by setting aside acquittal of the respondent. (b) By referring the depositions of witnesses and exhibited papers he said that not only the provisions of the Act but the rules regarding seizure, sending the samples for its examination to the Public Analyst are also complied with on receiving the report from Public Analyst, after filing the complaint the respondent was informed regarding his right to get examine another sample from the Central Food Laboratory as per the provision of section 13 (2) of the Act. with these submissions he prayed for allowing this appeal. 5. While responding the aforesaid arguments Shri A.D. Mishra and Shri R.S. Mehandiratta, learned counsels for respondent said that various lapses had been left by the prosecution and the same were considered by the trial Court in acquitting to the respondent. He further said that while taking the samples of the alleged milk the entire substance was not stirred for making homogenous. Hence, the samples were not taken as representative samples of the alleged bulk of the milk as it was not mentioned in Panchnama Ex. P-4. The seized substance was not properly sealed and sent to Public Analyst in accordance with the provisions of Rules 14 to 18 of the Prevention of Food Adulteration Rules. Besides this, the prosecution has failed to prove that the same sample was sent to Public Analyst for its examination as the postal receipt for sending the same was not produced and proved on record or the person concerned with whom it was sent has also not been examined. Besides this, the prosecution has failed to prove that the same sample was sent to Public Analyst for its examination as the postal receipt for sending the same was not produced and proved on record or the person concerned with whom it was sent has also not been examined. No explanation was put forth by the prosecution in this regard. In respect of sanction he said that the same was given without application of mind, as the date for giving such sanction was not mentioned in it. The same was given only on a cyclostyle form. Hence, it being without application of mind is not sustainable under the law. Lastly he said that after filing the complaint the respondent was not informed regarding his legal right to get examine another sample from the Central Food Laboratory as per the provision of section 13 (2) of the Act. All these aspect have been considered by the trial Court while acquitting to the respondent. Hence, the impugned judgment does not require any interference at this stage and prayed for dismissal of this appeal. 6. Having heard the learned counsels for the respective parties, I have gone through the record of the trial Court as well as the impugned judgment. So far seizure of the alleged milk is concerned, Food Inspector the complainant (PW 1) by mentioning the entire process prepared the Panchnama (Ex. P-4) but in such Panchnama I have not found anything showing that before purchasing the alleged sample of milk the entire milk was stirred for making the same homogenous by any method for taking the representative samples of it. In the absence of it, it could not be inferred that the alleged milk was purchased or taken after making entire milk homogenous. As per the settled position of the law if the samples were not representative then the accused like respondent could not be convicted for the alleged offence. 7. Coming to the other question, I have found form No.7 (Ex. P-6) in the record, as alleged the same was sent along with samples to the Public Analyst, Bhopal for its examination but through whom it was sent it has not been proved by examining such witness and if it was sent through registered post then postal receipt and acknowledgement due receipt should have been filed and proved on record. The same are neither filed nor proved. The same are neither filed nor proved. In the absence of it, it could not be assumed that the samples were sent to the Public Analyst. Mere oral testimony of Food Inspector in this regard is not sufficient to draw any inference in favour of the prosecution. I have not found such postal receipt or acknowledgement due receipt on the record. Counsel for the State was also not able to find out and apprise the same. This shows another lacuna in the case of the prosecution. It is settled position of law that the source of sending the samples to Public Analyst or its carrier should be proved beyond reasonable doubt on record as decided by this Court in the matter of Nagar Palika Bhind v. Manik Chand Jain reported in [1998 (1) MPWN 60]. 8. Coming to another question, that the sanction for prosecution was given by the Health Officer, Seoni vide dated 16.3.1982 (Ex. P-7). Mere perusal of the same, it appears that the same was given on a cyclostyle form by filling up some column in hand writing without mentioning any specific reason for granting the same. It shows non-application of mind of concerning Sanctioning Authority. As per settled provision of law sanction must be given by speaking and reasoned order. Hence, the approach of the trial Court in this regard could not be said to be contrary to law. 9. It is also apparent that after filing the instant complaint the respondent was not informed about his legal right to get examine another sample from the Central Food Laboratory as per the provision of section 13 (2) of the Act as copy of such notice as well as its postal receipt and acknowledgement due receipt has neither been produced nor proved on record, by committing this lacuna the prosecution has deprived the respondent from his valuable right by which his defence has been prejudice, consequently the respondent was entitled for acquittal. 10. Under the aforesaid premises, I have not found any perversity, illegality or infirmity in the impugned judgment or its finding acquitting to the respondent from the alleged charge. Therefore, this appeal has no merits. Hence, by affirming the findings of the impugned judgment this appeal is hereby dismissed. 11. The respondent was taken into custody in compliance of the order dated 1.12.2006 of this Court. Therefore, this appeal has no merits. Hence, by affirming the findings of the impugned judgment this appeal is hereby dismissed. 11. The respondent was taken into custody in compliance of the order dated 1.12.2006 of this Court. In view of the dismissal of this appeal the respondent be set at liberty forthwith if his presence is not required in any other case. 12. Appeal is dismissed accordingly.