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2017 DIGILAW 661 (CHH)

Makhan Lal v. State of C. G.

2017-10-27

SHARAD KUMAR GUPTA

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JUDGMENT : Sharad Kumar Gupta, J. 1. The Applicant preferred this Criminal Revision against the judgment dated 14th September, 2004 passed by Addl. Sessions Judge, Dhamtari, Sessions Division, Raipur in Criminal Appeal No. 291/2003 whereby the Addl. Session Judge affirmed the Judgment of conviction and order of sentence of applicant dated 18-10-2003 passed by Chief Judicial Magistrate. Dhamtari in Criminal Case No. 389/2001 whereby and whereunder CJM, Dhamtari convicted the Applicant for the offence punishable under Section 7(1) read with Section 16(1)(a) of the Prevention of Food Adulteration Act, 1954 (hereinafter called as 'Act of 1954') and sentenced him to undergo rigorous imprisonment of one year and to pay a fine of Rs. 1,000/-, in default of payment of fine he shall further undergo simple imprisonment of 3 months. The unfolded complainant's case is that, RW. 1 J.C. Verma was posted as Food Inspector in District Flying Squad in Raipur district. As per order dated 31-7-1998 issued by the Controller, Food and Drug Administration, Bhopal he was ordered to work in newly formed district of Madhya Pradesh State. On 27-3-1999 he had inspected a grocery shop situated in village Khisora. At that time, proprietor-acquitted co-accused Johat Ram was not present and in-charge of that shop applicant was present. Food Inspector J.C. Verma had given the notice of Form No. 6 under Prevention of Food Control Rules, 1955 (hereinafter called as 'Rules 1955') to applicant and purchased a polypack of 1 kg PP sweets hard boiled confectionery from him by paying Rs. 15/-. A receipt was also prepared regarding it. P.W. 1 J.C. Verma broken said confectionery and apportioned it in three equal parts, and filled them in three clean polythenes and closed it. He pasted the paper slip upon each packet. He covered each packet through brown paper and pasted the label on every packet. He sealed them. He prepared panchnama on the spot. On 28-3-1999 he sent one sample along with the Form 7 of the Rules 1955 in a outer cover to Public analyst, Bhopal through registered parcel. He also sent impression of seal separately to Public Analyst by registered post. He deposited remaining two samples along with Form-7, in sealed outer cover in concerned office at Raipur. As per the report of the Public Analyst dated 7-5-1999 Ex. P-14, the sample was found adulterated. He also sent impression of seal separately to Public Analyst by registered post. He deposited remaining two samples along with Form-7, in sealed outer cover in concerned office at Raipur. As per the report of the Public Analyst dated 7-5-1999 Ex. P-14, the sample was found adulterated. Applicant and co-accused Johat Ram have not produced any bill or warranty regarding said purchase. Dy. Director, Food and Drugs, Dhamtari granted sanction for prosecution against the applicant and said accused by order dated 5-3-2001 vide Ex. P-1. On 26-3-2001 a complaint was filed against applicant and said accused. A notice Ex. P-19C dated 3-4-2001 had been given to the applicant and said accused but they do not apply to the Court to send another sample in Central Food Laboratory for re-analysis of another sample. 2. Further complainant's case is that the Court has framed the charge against the applicant and said accused under Section 7(1) read with Section 16(1) of the Act of 1954. They abjured the allegation levelled against them. To bring home the guilt of the applicant and the accused, complainant examined 3 witnesses after framing of charge. Applicant and the said accused do not examine any defence witness. After conclusion of the trial, trial Court convicted and sentenced the applicant as aforesaid and also convicted co-accused Johat Ram under Section 7(1) read with Section 16(1) of the Act of 1955 (sic 1954), and sentenced him to undergo RI for one year and also to pay a fine of Rs. 1,000/-, in default of payment of fine, to further undergo SI for 3 months. In the appeal, co-accused Johat Ram was acquitted by aforesaid appellate Court. Being aggrieved, the applicant preferred this revision. 3. Shri R.S. Patel argued that public analyst has not mentioned in his report that, allegedly what colour and what chemical class were found in the sample, thus the conviction and sentences are not proper and they could not be sustained. 4. Shri R.K. Gupta, Dy. Adv. General for the State urged that the conviction and sentence are proper and do not call for interference. 5. It is well settled law that a Revisional Court by exercising its revisional power only may interfere with the findings of the lower Court where the lower Court has committed some illegality or given perverse findings or carried out miscarriage of justice. 6. 5. It is well settled law that a Revisional Court by exercising its revisional power only may interfere with the findings of the lower Court where the lower Court has committed some illegality or given perverse findings or carried out miscarriage of justice. 6. It would be pertinent to mention the relevant part of the Ex. P-14 which is as under:- ".........I further certify that I have/had caused to be analysed the aforementioned sample and declare the result of the analysis to be as follows:- Ash Sulphated - 1.239% Ash insoluble in dilute HCL - 0.183% Added Colour - Non-permitted colour present and am of the opinion that the sample is adulterated ...... Public Analyst" 7. It is noticeable to show the relevant portion of standard fixed for the sugar boiled confectionery in Article A.25.01 of appendix-B of Rules 1955 which reads as under :- "A.25.01-Sugar boiled confectionery- ... ... ... It shall also conform to the following standards, namely:- (i) Ash sulphated (on salt free basis) Not more than 2.5 percent by weight : Provided that in case of sugar boiled confectionery where spices are used as center fillings, the ash sulphated shall not be more than 3 percent by weight. (ii) Ash insoluble (in dilute Hydrochloric acid) Not more than 0.2 percent by weight : Provided that in case of sugar boiled confectionery where spices are used as center filling, the ash insoluble in dilute Hydrocloric acid shall not be more than 0.4 percent. 8. Therefore after the comparison of the Ex. P-14 and the said standard it reveals that ash sulphate, ash insoluble in dilute HCL acid were present in aforesaid sample within the limit prescribed in said standard. 9. As per the Rule 26 of the Rules of 1955 natural colours which names have been mentioned in this rule may be used in or upon any article of food. 10. As per Rule 28 of the Rules 1955 no synthetic food colours or a mixture thereof shall be used in food except those which are mentioned in this rule. 11. As per the Rule 29(b) of the Rules 1955 use of permitted synthetic food colour is not prohibited in the confectionery. In other words, the permitted food synthetic colour may be used in confectionery. 12. In the case in hand, it is not mentioned in Ex. 11. As per the Rule 29(b) of the Rules 1955 use of permitted synthetic food colour is not prohibited in the confectionery. In other words, the permitted food synthetic colour may be used in confectionery. 12. In the case in hand, it is not mentioned in Ex. P-14 that what was the colour and the chemical class or dye found in aforesaid sample. Moreover P.W. 1 J.C. Verma, Food Inspector does not say in his statement on oath that what was the colour of confectionery which he had purchased and one sample of which he had sent to the public analyst. It is also not mentioned in panchnama Ex. P-7. 13. In Vijay Kumar Agrawal Vs. State of M.P., 1992 (1) FAC 137 the High Court of Madhya Pradesh observed as under:-- "20. Applicant's learned Counsel submitted that it was not sufficient for the Public Analyst to have stated that the colours found in the sample were unpermitted. In view the Court's decision in State of M.P. v. Adharsh, 1989 (1) F.A.C. 249, it was necessary for the Public Analyst to disclose the chemical class and colour index of the allegedly unpermitted colours found in the sample. Thereafter it would have been possible for the Court to come to the conclusion whether the colours found in the sample were permitted or not with reference to rules 26, 28 and 29 of the Prevention of Food Adulteration Rules. This argument could not be assailed on any ground. The Public Analyst unwittingly took upto himself the judicial function of adjudicating whether the colours found in the sample were permitted or otherwise. Thus, the report of the Public Analyst is found to be infirm and applicant's conviction based thereon is liable to be set aside" 14. Shri R.S. Patel, counsel for the applicant placed reliance in para 10 of the decision of High Court of M.P. in the matter of Shiv Prasad Dubey Vs. State of M.P., 2014 Law Suit (MP) 413 which is quoted below:- "10. On the basis of the aforesaid discussion, it would be apparent that the procedure for taking sample adopted by the Food Inspector was highly doubtful. He did not take two independent witnesses while taking the sample. He did not mention that what was the colour of sugar candies purchased by him and he did not specify the number of candies of a particular colour. He did not take two independent witnesses while taking the sample. He did not mention that what was the colour of sugar candies purchased by him and he did not specify the number of candies of a particular colour. Similarly, the remaining tests of purchased sugar candies were according to the standard prescribed in Article A.25.01 of the Appendix B of the Food Adulteration Rules except the prohibited colour, but the Public Analyst did not mention that which prohibited colour was used in the sugar candies, and therefore the analysis done by the Public Analyst was incomplete and it cannot be said that the prohibited synthetic colour was used in red sugar candies amongst so many candies purchased by the Food Inspector, and therefore the applicant could not be convicted for the offence of Food Adulteration". 15. Looking to the aforesaid observations and circumstances mentioned hereinbefore this court finds that it could not be said that allegedly such colour index and chemical class or dye was found present in aforesaid sample which was actually prohibited under Rule 28 of the Rules 1955, thus it is adulterated as opined by Public Analyst. 16. Looking to the above mentioned circumstances, this Court finds that both subordinate courts have given the perverse finding causing miscarriage of justice that, applicant was selling adulterated PP sweets hard boiled confectionery. Thus this Court allows the revision and sets aside the judgment of conviction and order of sentence passed by both the subordinate courts. Consequently the applicant is acquitted from the charge under Section 7(1) read with 16(1) of the Act of 1954. The applicant is on bail. His bond shall stand discharged subject to the provision contained in Section 437-A of the CRPC.