JUDGMENT : Sanjay Karol, J. Assailing the judgment dated 19.4.2003, passed by the learned Sub Divisional Judicial Magistrate, Nalagarh, District Solan, H.P., in Criminal Case No. 138/3 of 2001, titled as State of Himachal Pradesh v. Ram Swaroop Aggarwal, as affirmed by the learned Addl. Sessions Judge, Solan, Distt. Solan, H.P., vide judgment dated 23.11.2005, passed in Criminal Appeal No. 19-NL/10 of 2003, titled as Ram Swaroop Aggarwal v. State of H.P., the accused-petitioner has filed the present Revision Petition under the provisions of Section 397 read with Section 401 of the Code of Criminal Procedure, 1973. 2. It is the case of the prosecution that on 18.4.2001 Sh. S.C. Joshi (PW-1) who was posted as Food Inspector, District Solan, Himachal Pradesh along with Sh. Mehar Chand (PW-3), who was posted as peon in the office of Chief Medical Officer, Solan went to the shop of M/s Desh Raj Mahavir Parsad at Baddi where rice, pulses, spices, sarson oil etc. was kept for sale for general public. PW-1 asked the accused to produce the licence issued under the provisions of Prevention of Food Adulteration Act, 1954 (hereinafter referred to as the Act) for selling consumable goods. Since no licence was produced, he prepared panchnama (Ext. P-1) on which accused appended his signatures. Vide communication (Ext. P-2) he requested the Chief Medical Officer, Solan, District Solan to accord consent under the provisions of Section 20 of the Act for initiating proceedings. The consent was so accorded vide order dated 29.5.2001 (Ext. P-3), for initiating criminal proceedings before the Court of competent jurisdiction. Resultantly complaint was filed against the accused for having committed offense punishable under the provisions of the Act. 3. Notice of accusation was put to the accused for having committed an offence punishable under Section 16 (1)(a)(iii) read with Section 7(iii) of the Act, to which he did not plead guilty and claimed trial. 4. In order to establish its case, prosecution examined as many as three witnesses. Statement of the accused under Section 313 of the Code of Criminal Procedure was also recorded. Accused took up the defence that he was neither the owner nor an employee working in the shop at the relevant time. In defence accused examined one witness. 5. The Courts below found the prosecution to have established its case. Statement of the accused under Section 313 of the Code of Criminal Procedure was also recorded. Accused took up the defence that he was neither the owner nor an employee working in the shop at the relevant time. In defence accused examined one witness. 5. The Courts below found the prosecution to have established its case. The trial Court convicted the accused for having committed an offence punishable under the provisions of Section 16 (1)(a)(ii) read with Section 7(iii) of the Act and sentenced him to undergo simple imprisonment for a period of six months and pay fine of Rs. 1000/- and in case of default in payment of fine to further undergo simple imprisonment for a period of one month. The lower Appellate Court has affirmed the judgment of conviction and sentence passed by the trial Court. 6. Having heard the learned counsel for the parties as also perused the record, I am of the considered view that ground for interference is made out by the petitioner. In my considered view, the Courts below have committed grave illegality in convicting the accused for the offence in question. The testimonies of the witnesses have not been correctly and completely appreciated which has resulted into travesty and miscarriage of justice. 7. In Krishan & another v. Krishnaveni & another, 1997 (4) SCC 241 , the apex Court has held that when the High Court notices that there has been violation of justice or misuse of judicial mechanism or procedure, sentence or order is not correct, it is but the salutary duty of the High Court to prevent the abuse of the process or miscarriage of justice or to correct irregularities/incorrectness committed by inferior criminal Court in its judicial process or illegality of sentence or order. 8. The Courts below committed an error in presuming that the goods were in fact stored in the shop for sale. They also presumed that the accused was the owner thereof. 9. In the instant case, prosecution has examined three witnesses. Sh. S.C. Joshi (PW-1) is the Food Inspector who went on the spot to inspect the premises. Sh. Mehar Chand (PW-3) is witness to the panchnama prepared by PW-1 and Sh. Vinod Kumar (PW-2) is the Dealing Assistant of the sanctioning authority. 10. It be only noticed that in his testimony PW-1 does not even refer to the presence of PW-3 on the spot. Sh. Mehar Chand (PW-3) is witness to the panchnama prepared by PW-1 and Sh. Vinod Kumar (PW-2) is the Dealing Assistant of the sanctioning authority. 10. It be only noticed that in his testimony PW-1 does not even refer to the presence of PW-3 on the spot. He does not state who was the witness who signed the panchnama. He also does not state that when he visited the shop, accused was found selling the goods for which he had no licence. He also does not state that he had seen customers purchasing any such articles, which fall within the purview and scope of the Act, from the accused. Though in his testimony he states that two three customers were present in the shop who were purchasing the same but does not remember their names or identity. Now if two three customers were in fact present in the shop then why is it that he did not associate any one of these or any person from the adjoining area, one of whom in fact stands examined as DW-1 (Sh. Balbir) by the accused, or any other respectable person from the locality. Absence of association of an independent witness, in my considered view has rendered the prosecution case to be shaky and doubtful. The whole edifice of the prosecution case does not inspire confidence. 11. Sh. Mehar Chand (PW-3) does not explain his presence at Baddi at the relevant time based on official communication authorising him to accompany PW-1. It is not the case of the complainant (PW-1) that PW-3 had accompanied him for inspection of the shop at Baddi. PW-3 was working as a Peon and at the relevant time, was posted in the office of the Chief Medical Officer, Solan which is far off from Baddi. It is not the case of the complainant that this witness ordinarily resides at Baddi or the day on which inspection took place, it was a holiday and he happened to be there. Significantly shop was inspected around noon and as such presence of PW-3 has not been sufficiently explained. It is in this backdrop the non-association of independent witness during the course of the inspection and inquiry has gained significance. 12. Significantly shop was inspected around noon and as such presence of PW-3 has not been sufficiently explained. It is in this backdrop the non-association of independent witness during the course of the inspection and inquiry has gained significance. 12. The apex Court in Om Parkash v. Delhi Administration and another, (1976) 1 SCC 637 has held that the act of storing an adulterated article of food would be an offence only if storing is for sale. 13. In the information furnished by PW-1 to the office of Chief Medical Officer, Solan, it is nowhere stated that the accused was selling the goods in the shop or that he had seen the goods being sold to the customers by the accused. Even here, PW-1 does not record presence of PW-3. Why so? This has not been explained. 14. The defence of the accused that he is neither the owner nor was he working as an employee in the shop, so inspected by PW-1, stands probabalized through the testimony of Sh. Balbir (DW-1) who in no uncertain terms has deposed that the shop in question, which is adjoining to his shop, is owned by Sh. Desh Raj and he has not seen the accused selling goods in the shop. 15. Considering the severity of the penalty under the Act, in my considered view, it was incumbent upon the prosecution to have established its case beyond reasonable doubt. According to the learned counsel, accused is an 80 years old man. The statement of PW-1, even if, believed to be true, in my considered view, would still not establish the guilt as this witness has deposed that neither had he purchased any goods nor had he seen the accused selling goods to the customers. It may also be observed that PW-1 admits that he did not record the statement of the accused to the effect that he is owner of the shop. He admits not to have purchased any goods from the accused. He also admits that persons present in the shop had not purchased anything as he had challaned the shop. 16. There is nothing on record to establish the fact that the accused was the owner of the shop in question or had put the goods for sale. Record of the sales tax department or the income tax department could have been easily obtained by the complainant. 17. 16. There is nothing on record to establish the fact that the accused was the owner of the shop in question or had put the goods for sale. Record of the sales tax department or the income tax department could have been easily obtained by the complainant. 17. Hence, for all the aforesaid reasons, I find that prosecution has not been able to prove its case beyond reasonable doubt, by leading clear, cogent and convincing evidence. As stated herein earlier, the Courts below have not properly appreciated the testimonies of the witnesses and the material on record which has resulted into travesty of justice. 18. In view of the aforesaid discussions, I am of the considered view that it cannot be said that the judgments passed by the Courts below are sustainable in law. Hence the same needs to be reversed. The finding of conviction and sentence are set aside. Accused is acquitted. Bail bonds furnished by the accused are directed to be discharged. 19. With the aforesaid observations, present revision petition stands disposed of, so also the pending applications, if any. Records of the courts below be immediately sent back.