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Madhya Pradesh High Court · body

2012 DIGILAW 686 (MP)

State of M. P. v. Nokelal

2012-07-10

N.K.GUPTA

body2012
JUDGMENT 1. The State has preferred this appeal against the judgment dated 17.2.1995 passed by learned CJM, Panna in Criminal Case No.56/1992, whereby the respondent was acquitted from the charges of offence punishable under section 7(1) read with section 16(1)(a)(1) of the Prevention of Food Adulteration Act, 1954 (hereinafter it shall be referred to as ‘P.F. Act’). 2. Prosecution’s case, in short, is that, the appellant Food Inspector was posted in District Panna as a Food Inspector to work in the entire district. On 22.8.1991, Food Inspector Shri Shrivastava (PW1) found that the respondent was present at Bus Stand of Village Simariya having a can of milk in which five liters of cow milk was available. A notice in Format 6 was given to the respondent and 750 ml of cow milk was purchased by the Food Inspector and a receipt of Rs.4.50 was given. Three parts of the sample were made and filled up in dry smell-less bottles. 20 drops of formalin were added in each of the bottle. Thereafter, bottles were properly sealed with slip issued by local health authority, Panna. Ultimately, one part of the sample was sent to the public analyst for analysis and thereafter, remaining two parts were deposited with local health authority. In report of public analyst, it was found that sample was adulterated and therefore, a sanction was obtained for prosecution from local health authority and therefore, a complaint was filed before CJM, Panna. Notice under section 13(2) of P.F. Act was also sent to the respondent. 3. The respondent abjured his guilt. No specific plea was taken by him but, he has stated that actually one Sitaram Rathore, Vaccinator in Simariya hospital told him to bring his wife for TT operation but, since he refused for that operation, a false case had been prepared by the Food Inspector with the instigation of Sitaram and therefore, Katte (DW1) and Chunna (DW2) were examined from the side of the defence. 4. Learned CJM, Panna, after considering the evidence adduced by the parties, acquitted the respondent from the charges of aforesaid offence. 5. Heard the learned counsel for the parties. 6. After considering the submissions made by learned counsel for the parties, it is apparent that sample was not taken in an appropriate manner. 4. Learned CJM, Panna, after considering the evidence adduced by the parties, acquitted the respondent from the charges of aforesaid offence. 5. Heard the learned counsel for the parties. 6. After considering the submissions made by learned counsel for the parties, it is apparent that sample was not taken in an appropriate manner. According to the standard given in Appendix ‘B’ of Prevention of Food Adulteration Rules applicable in Madhya Pradesh, in a sample of cow milk, percentage of solid fat must not be less than 3.5 and percentage of solid not fat should not be less than 8.5. In the present case, public analyst found in his report, Ex.P-12 that percentage of solid fat was 4.5, whereas percentage of solid not fat was 6.345 and therefore, the sample was adulterated. If cream is removed from the milk sample then, percentage of solid fat may be reduced but, percentage of solid not fat shall remain unaltered in such a case. If some water is added in the milk then, percentage of fat as well as percentage of solid not fat will be decreased. No such method of adulteration can be presumed in which percentage of solid fat increases and percentage of solid not fat decreases. Report of the public analyst indicates that some water was added in the milk but, Food Inspector took the sample in such a manner that pieces of floating cream on the surface were taken in the sample and therefore, percentage of solid fat was found more than the required quantity. Such a position is possible when the sample was taken without making the entire milk to be homogeneous and therefore, the sample taken from the respondent was not a representative sample which represents the milk contained in the can possessed by the respondent. 7. It is alleged that the sample was taken before witnesses Sitaram Pathak, Chhuna Khan and Kundanlal but, none of them were examined before the trial Court and no reason has been shown for their non-examination. It is alleged by the appellant that he had placed his signatures on the papers as he was directed by the Food Inspector. Under such circumstances, it was for the Food Inspector to prove that the sample was taken according to the law and it was sealed at the spot. It is alleged by the appellant that he had placed his signatures on the papers as he was directed by the Food Inspector. Under such circumstances, it was for the Food Inspector to prove that the sample was taken according to the law and it was sealed at the spot. It is apparent that sample was taken on 22.8.1991 and one part of the sample was sent to the public analyst vide memo dated 23.8.1991, whereas registry was done to despatch that sample on 26.8.1991. Remaining portion of the sample was deposited before the local health authority on 26.8.1991. Delay in despatch of sample and depositing before the local health authority is no where explained by the Food Inspector Shri Shrivastava and, therefore, learned CJM has rightly opined that delay was violative to rules as well as fatal to the prosecution. If sample was taken on 22.8.1991 then, when a memo was prepared on 23.8.1991, it can be despatched on same very day and remaining two parts of sample were to be deposited on 23.8.1991 before local health authority. No explanation was given by the Food Inspector for that delay in depositing the sample before the local health authority and in despatching one part of sample to the public analyst. Under such circumstances, where the evidence of Food Inspector is no where corroborated by any of the witnesses, it is highly doubtful that he took the sample in a proper manner or he sealed the sample in an appropriate manner immediately after taking the sample. Such doubts would give benefit to the accused. 8. Similarly, learned CJM found that there was no acknowledgment submitted by the Food Inspector to show that notice under section 13(2) of P.F. Act was given to the respondent. Original postal receipt was to be submitted and acknowledgment received from the respondent was also to be submitted. The respondent has not applied for reanalysis of the sample by Central Food Laboratory and therefore, he was deprived from his right given under section 13(2) of P.F. Act and therefore, the respondent could not be convicted for offence punishable under section 7(1)/16(1)(a)(1) of the P.F. Act. According to the provisions of section 13 of P.F. Act, it is for the local health authority to send the copy of the report of public analyst to the accused soon after the filing of the prosecution. According to the provisions of section 13 of P.F. Act, it is for the local health authority to send the copy of the report of public analyst to the accused soon after the filing of the prosecution. In rule 9(b) of the P.F. Rules, such period is shown to be of 10 days. In the present case, prosecution was made on 22.1.1992 and therefore, copy of the report must have been sent to the accused within 10 days of filing of the prosecution. Shri Shrivastava, Food Inspector, has shown the copyof the letter by local health authority, Ex.P-6 by which it would be clear that it was sent on 28.2.1992 i.e. violative to the provisions of rule 9(b) of the aforesaid Rules. Under such circumstances, the respondent could not be convicted for that offence and learned CJM has rightly acquitted the respondent from the charges of aforesaid offence. 9. There is no provision relating to the time period in provisions of section 13 of the P.F. Act but, it does not mean that the Food Inspector is free to file the complaint with undue delay. In the present case, report of the public analyst was received by the local health authority on 9.10.1991. Thereafter, it was sent to the Food Inspector vide letter Ex.P-11 for further proceedings after 19 days. Sanction for prosecution was obtained on 22.1.1992. No explanation has been given as to why the Food Inspector did not try to proceed with the case for two months and thereafter, a complaint was filed on 22.1.1992. It is apparent that sample was taken of cow milk, a substance which cannot be safely preserved for analysis for a lengthy period. Some preservative is required to be added in that sample. Food Inspector Shri Shrivastava has stated that he added formalin in the sample. However, it is laid down in case of Shiv Dayal Saligram Tiwari v. State of Madhya Pradesh [ 1977 JLJ 506 = 1977 MPLJ 169 ], that formalin is a preservative but, it loses its effect after six months and therefore, if the accused is not given any opportunity under section 13 of the P.F. Act within six months then, it may be said that the accused was deprived of his right under section 13 of the P.F. Act. In the present case, sample was taken on 22.8.1991, whereas complaint was filed on 22.1.1992 i.e. after five months of taking the sample and thereafter, a copy of the report was given to the respondent by letter dated 28.2.1992, Ex.P-6 i.e. much after completion of six months from the date of taking sample. There is no explanation given by the Food Inspector as to why the report was not sent within 10 days from filing of the complaint. Under such circumstances, the copy of the report of public analyst was sent to the respondent after completion of six months from the date of sample and therefore, he was positively deprived of his right given under section 13 of the P.F. Act. 10. Also, it is no where proved by the Food Inspector that letter dated 28.2.1992 was received by the respondent. For that purpose, copy of acknowledgment must have been filed by the Food Inspector but, no such copy is filed. Hence, it shall be inferred that no copy of report received from public analyst was given to the respondent. In this context, learned counsel for the respondent has placed his reliance on the judgtment passed by this Court in case of Harisingh v. State of Madhya Pradesh [1992(I) MPWN 27], in which it is held that in case of such lapses, results would be acquittal of the accused. 11. On the basis of aforesaid discussion, it is apparent that learned CJM has rightly acquitted the respondent from the charges of offence punishable under section 7(1) read with section 16(1)(a)(1) of P.F. Act and, therefore, appeal filed by the State cannot be accepted. Consequently, appeal filed by the State is hereby dismissed. 12. Presence of the respondent is no more required before this Court and, therefore, it is directed that his bail bonds shall stand discharged. 13. Copy of judgment be sent to the trial Court with its record for information. .............