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Himachal Pradesh High Court · body

2013 DIGILAW 576 (HP)

Kishori Lal v. State of H. P.

2013-06-20

DEV DARSHAN SUD

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JUDGMENT Justice Dev Darshan Sud, J. This revision petition has been preferred by the petitioner against the order of the learned Additional Sessions Judge, Fast Track Court, Kangra at Dharamshala affirming the judgment passed by the learned Chief Judicial Magistrate, Kangra at Dharamshala convicting and sentencing the petitioner for offences punishable under Section 16(1)(a)(i) of the Prevention of Food Adulteration Act (hereinafter referred to as the Act) for period of six months and to pay fine of Rs.1,000/-. In default of payment of fine amount to further undergo simple imprisonment for one month. 2. The facts of the case are that on 3.7.1996 the accused was found carrying milk in a can. This was meant for sale to the general public. The Food Inspector purchased 750 mls. of milk against payment of Rs.6.75 which was sent to the Public Analyst, Kandaghat for analysis and was found to be adulterated. This was also the case with the sample which had been sent to the Director, Central Food Laboratory, Pune. Both the learned courts below on the evidence on record convicted the accused. 3. What has been urged by learned counsel appearing for thepetitioner is that there has been non compliance of Section 13(2) of the Act which is mandatory and non compliance of this provision is fatal to the case of the prosecution. Learned counsel places reliance upon the decisions of this Court in State of Himachal Pradesh versus Sher han, 1998(1) Shim. L. C. 213 and State of H.P. versus Partap Singh, 1995(1) Sim. L.C. 448 holding that non compliance of the provisions of this Section would vitiate the trial. Learned counsel submits that the application dated 18.10.1997 was filed under the provisions of Section 13(2)of the Act pleading that the petitioner herein received memo dated 3.10.1997 on 10.10.1997 from the Local Health Authority stating that the sample had been analyzed and found to be adulterated. The applicant intended to have the second part of the sample analyzed from the Central Food Laboratory. What I find from the records is that there is one report of the Central Food Laboratory dated 12.12.2001 of milk sample which was received by the laboratory on 4.12.2001 stating that the sample does not conform to the standards of cow milk as per the PFA Rule, 1955. What I find from the records is that there is one report of the Central Food Laboratory dated 12.12.2001 of milk sample which was received by the laboratory on 4.12.2001 stating that the sample does not conform to the standards of cow milk as per the PFA Rule, 1955. On 22.11.2001 the learned trial Court records that the second part of the sample produced by Shri Ravinder Kumar, Dealing Assistance, office of LHA, Kangra at Dharamshala in a wooden container in accordance with the Rules under this Act and was sent for analysis to the Director, Central Food Laboratory, Pune. It is these facts with which this Court is dealing with. What is admitted is the dates as recorded by the learned Courts below. What I find from the records is that the sample was taken in the year 1996 and has been analyzed after five years by the Director, Central Food Laboratory, Pune. One of the grounds urged before the Courts below was that after such a long period of time nothing would remain in the sample for analysis. Learned Courts below simply proceeded to brush aside this submission by holding that the report of the Central Food Laboratory, Pune nowhere states that the sample was not found to be unfit for analysis and did not conform to the standards prescribed under the Act and Rules. I am surprised in the manner in which the learned Courts below have dealt with this issue. 4.In Munna v. State, 1982 Cr. L. J. 884, the Allahabad High Court holds: “4. Reference may be made to an unreported decision of this Court in Criminal Revision No.1612 of 1962 (Gokul Chand v. State) in which 121 samples were sent for analysis. The analysis was to be done after every four days and in this experiment it was found that where cow milk had one drop of formalin as preservative then the milk did not get deteriorated in 210 days and where it had two drops of formalin as preservative it did not get deteriorated for 308 days, but partial deterioration started after 295 days. It was also found that in the matter of preservation of milk there would not be much difference in cows milk and buffalo milk. This conclusion clearly shows that in the maximum period of about ten months the milk would get deteriorated. It was also found that in the matter of preservation of milk there would not be much difference in cows milk and buffalo milk. This conclusion clearly shows that in the maximum period of about ten months the milk would get deteriorated. In the present case, however, copy of the report of the Public Analyst was given to the applicant after one year. Therefore, it is obvious that the milk must have got wholly deteriorated by then. It was, therefore, useless to send it to the Director. Central Food Laboratory at Calcutta for re-analysis and the applicant was denied the right which he had under Sec. 13 to get the sample sent to the Central Food Laboratory for re-analysis. Since this caused prejudice to the applicant and the finality of the report of the Public Analyst was not ascertained, therefore, the applicant could not be convicted.”(p.884). 5. Learned counsel also places reliance upon the decision of the Madhya Pradesh High Court in Ram Singh vs. State of M.P. 2005(2) FAC 245 holding that milk looses strength and sample does not remain fit for analysis after a long lapse of time. The Court holds: “11. It is not in dispute that right to examine the remaining sample from Central Food Laboratory was a valuable right of the applicant and this could not destroyed by the prosecution and it is settled position of law that after 6 months the preservative mixed with the milk has lost its strength as deteriorated and the sample does not remain fit for analysis. In this situation when the complaint was initiated after more than 7 months when the remaining sample had become deteriorated and not fit for analysis and then aforesaid notice under Section 13(2( was given which was apparently after deterioration of the remaining sample so the applicant was deprived to examine the same from Central Food Laboratory. So this cannot be said that the application under Section 13(2) of the Act was not moved by the applicant even after receiving the said notice Ex. P/16, therefore, he cannot get benefit of the said provision. For the sake of argument if such an applicant was moved instead that right could not be exhausted by the applicant in view of deterioration of the sample. 12. P/16, therefore, he cannot get benefit of the said provision. For the sake of argument if such an applicant was moved instead that right could not be exhausted by the applicant in view of deterioration of the sample. 12. My aforesaid view is supported by the decided case of this Court in the matter of Shiv Dayal Saligram Tiwari vs. State of Madhya Pradesh, 1977 (I) FAC 90: 1977 MPLJ 169 in which it was held as under:- “Held, that in any case by the time the accused appeared the sample would have deteriorated and that in the circumstances accused was deprived of his right under Section 13(2) because of the inordinate delay in launching prosecution and he was entitled to acquittal. 1967 M.P.L.J. 640 : AIR 1967 SC 970 and 1974 M.P.L.J. 241, Rel. AIR 1971 SC 1277 and AIR 1972 SC 1631 , Dist. AIR 1951 Nag. 191, Ref. (Paras 6, 7).” 13. In view of the aforesaid, it is apparent that the applicant was deprived of his valuable right under Section 13(20 of the Act and when the notice was sent till then the sample was already deteriorated and this aspect was either examined nor considered by the Courts below and due to this apparent perversity the judgments of the Courts below are not sustainable in law.” (pp.248 & 249) 6. On the facts established on record, I hold that the findings of the learned Courts below cannot be sustained in the eyes of law and I cannot comprehend that how the sample has been sent for analysis after a period of five years and then considered to be fit for analysis. 7.In these circumstances, revision petition filed by the petitioner is allowed and he is acquitted of the offence charged. Bail bonds furnished by the petitioner are discharged.