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Himachal Pradesh High Court · body

2018 DIGILAW 818 (HP)

STATE OF HIMACHAL PRADESH v. CHANDER MANI

2018-05-05

AJAY MOHAN GOEL

body2018
JUDGMENT : AJAY MOHAN GOEL, J. 1. By way of this appeal, the State has challenged the judgment passed by the Court of learned Additional Sessions Judge-II, Shimla in Criminal Appeal No. 30-S/10 of 2012 dated 2.5.2015, vide which learned appellate court set aside the judgment of conviction passed against present respondents by the Court of learned Judicial Magistrate 1st Class (IV), Shimla in Criminal Complaint No. 158-3 of 2010 dated 31.1.2012. 2. The case of the prosecution, in brief, was that on 9.10.2009 Mr. Ashok Mangla, Food Inspector, inspected premises known as 'Diamond Bar and Restaurant', B.C.S., New Shimla at around 2:30 p.m. All accused were partners of the said Bar and Restaurant. Accused Chander Mani had kept 4.5 Kgs of curd made from pasteurized standardized milk in stainless steel tray for the sale of general public. After disclosing his identity, the Food Inspector informed accused Chander Mani of his intention to purchase the curd for the purpose of analyses and also issued a notice in this regard. The curd was cut horizontally and vertically and thereafter Food Inspector purchased 3x250 grams of the same for payment of Rs. 18/- and proper receipts in this regard were issued. The curd so purchased was put in dry stainless steel jug, which was made homogeneous with hand mixer and thereafter put into three neat and clean bottles. 20 drops of formalin were added to each bottle as preservative and bottles were corked, labeled and wrapped into a thick paper. After completing other formalities, signatures of accused, Chander Mani, were obtained and sample bottles were fastened with strong thread and also sealed. This entire process was witnessed by witnesses T.C. Mehta and Charan Dass. One part of the sample along with Form No. VII was sent through Paras Ram, Peon, for the purpose of analyses at Kandaghat and the sample seal was also sent through him, which were deposited at CTL, Kandaghat. Report of the Public Analyst demonstrated that the sample was adulterated, as the same contained milk fat to the extent of 4.06% against the prescribed minimum standard of 4.5%. Pursuant to receipt of the report of Food Inspector placed on documents before the Chief Medical Officer, Shimla, who accorded his permission to lodge prosecution against accused on 21.12.2009. On the basis of said written consent, a complaint was filed in the Court of law. 3. Pursuant to receipt of the report of Food Inspector placed on documents before the Chief Medical Officer, Shimla, who accorded his permission to lodge prosecution against accused on 21.12.2009. On the basis of said written consent, a complaint was filed in the Court of law. 3. As a prima facie case was found against the accused, accordingly, notice of accusation for commission of offense punishable under Section 16(1) (a) (i) of Prevention of Food Adulteration Act, 1954 was put to accused, to which they pleaded not guilty and claimed trial. 4. Learned trial court vide judgment dated 31.1.2012 in Criminal Complaint No. 158-3 of 2010 convicted all the accused for commission of offense punishable under Section 16(1) (a) (i) of Prevention of Food Adulteration Act. It sentenced the accused to undergo simple imprisonment for six months and also to pay fine of Rs.1, 000/-, failing which the convicts to undergo simple imprisonment for 15 days. Learned trial court concluded that the statements of prosecution witnesses and also the documents on record demonstrated that the sample which was obtained from the premises of M/s Diamond Bar and Restaurant was adulterated and proper procedure stood followed by the complainant in prosecuting the accused including proper compliance of Section 13(2) of the Prevention of Food Adulteration Act. 5. Feeling aggrieved, all accused preferred an appeal. Learned appellate court vide judgment dated 2.5.2015 allowed the same and acquitted all the accused for commission of offense punishable under Section 16(1) (a) (i) of Prevention of Food Adulteration Act by setting aside the judgment of conviction passed by the learned trial court. 6. While acquitting the accused, learned appellate court held that according to the Food Inspector, the curd was made of pasteurized standardized milk, which was put into a dry stainless steel jug and after making it homogeneous, it was put into three neat and clean bottles. Learned appellate court held that it was not established that the sample of curd was taken according to the settled norms. Learned appellate court held that in order to make the sample of curd homogeneous and representative (of the entire quantity of curd stored for sale) , the same is required to be cut vertically, if the curd was set, whereas there was nothing on record to suggest that the Food Inspector had cut the curd vertically. Learned appellate court held that in order to make the sample of curd homogeneous and representative (of the entire quantity of curd stored for sale) , the same is required to be cut vertically, if the curd was set, whereas there was nothing on record to suggest that the Food Inspector had cut the curd vertically. Learned appellate court also held that taking the sample of curd stands on different footing, as compared to other food articles, there was noting on record that the quantity of curd i.e., 4.5 Kg which were kept for sale, was cut vertically in three parts. It further held that there was no evidence on record whether entire curd in fact was set or not. Learned appellate court also held that the curd needs to be churned as a whole so as to make it homogeneous and the churning should be done thoroughly. It held that stirring is not churning. Learned appellate court further held that as in the case in hand process of churning had not been adopted, thus serious prejudice was caused to the accused. Learned appellate court held that there was non compliance of Section 10 (7) as also Rule 14. Accordingly, learned appellate court after placing reliance upon judgment (including the judgments passed by this Court), which find mention in it, allowed the appeal and acquitted the accused by setting aside the judgment passed by the learned trial court. 7. Feeling aggrieved, the State has filed the appeal. 8. I have heard learned counsel for the parties and have also gone through the records of the case as well as judgments passed by both learned courts below. 9. Hon'ble Supreme Court of India in Food Inspector, Municipal Corporation, Baroda Vs. Madanlal Ramlal Sharma and another, (1983) 1 SCC 135 has held as under:- "Our attention was not drawn to any provision in the Act or the Rules making it obligatory that churning should be done with some machine so as to make a sample homogeneous and representative sample. Hon'ble Supreme Court of India in Food Inspector, Municipal Corporation, Baroda Vs. Madanlal Ramlal Sharma and another, (1983) 1 SCC 135 has held as under:- "Our attention was not drawn to any provision in the Act or the Rules making it obligatory that churning should be done with some machine so as to make a sample homogeneous and representative sample. We are conscious of the fact that in milk and milk preparations including curd, it is distinctly possible that the fat settles on the top and in order to find out whether the milk or its preparation such as curd has prescribed content, the sample must be homogeneous and representative so that the analysis can furnish reliable proof of nature and content of the article of food under analysis. For this purpose churning is one of the methods of making the sample homogeneous and representative. But having said this, there is nothing in the Act or the Rules which prescribes that churning must be done by some instrument, and that churning done by hand would not provide a homogeneous and representative sample. Commonsense dictates that articles of food like milk and curd when churned with hand would properly mix-up from top to bottom. More so when the quantity is either 600 grams which was the quantity purchased or 2 kgs. which was the quantity in the container. There was evidence that the churning was done by spoon. But even if the High Court found that evidence unreliable and evidence of defence witness Devsibhai Ramjibhai so much, reliable that it was prepared to act upon it disagreeing with the other evidence, the evidence of Devsibhai Ramjibhal was that churning was done with hand, and he did not say that the churning was not effective. We therefore find it difficult to subscribe to the view of the High Court that the churning is required to be done by some instrument or that the churning done by hand would not meet with the requirements of making a sample homogeneous and representative. There has to be a finding that the churning done with hand was not adequate. There is no such finding. We are, therefore, of the opinion that the High Court was not justified in confirming the acquittal on this ground." 10. There has to be a finding that the churning done with hand was not adequate. There is no such finding. We are, therefore, of the opinion that the High Court was not justified in confirming the acquittal on this ground." 10. It is apparent from the judgment of the Hon'ble Supreme Court that there is nothing in the Act and in the Rules which prescribes that churning has to be done by same instrument for making homogeneous and representative sample. Hon'ble Supreme Court has held that it is not as if churning is required to be done by some instrument or that churning by hand would not meet the requirement of making a sample as homogeneous and representative and if the Courts are not satisfied with the churning so done, then there has to be a finding that churning done with hand was not adequate. 11. Coming to the facts of the case at hand, records demonstrate that five witnesses were examined by the complainant. Complainant himself entered the witness box as CW1. The process of taking sample of the curd has been stated by this witness in the following terms "maine uprokt dahi jo pasteurized wa standardized dudh ka bana hua tha ko vertically wa horizontally kaat kar ek saaf suthere wa khushak stainless steel ke jug ke under ek saaf wa khushak ek stainless steel ke dund mixture ke saath bhali bhanti homonized kiya." 12. CW2, Charan Dass, official witness of LHC Municipal Corporation Shimla, who was accompanying the complainant deposed in the Court that the curd was cut vertically and horizontally and from one part of it 750 grams was taken out in a jug and the said curd was mixed with a hand mixture. 13. Now one thing which is apparent from the perusal of the statement of the complainant as also CW2 is this that there was no churning of the curd done before its sample was taken by the complainant, which sample as per the complainant was thereafter put into a jug and churned. A perusal of the contents of complaint, Ext. P-12, demonstrates that it is not mentioned therein as to whether curd which was kept for sale was set or not. A perusal of the contents of complaint, Ext. P-12, demonstrates that it is not mentioned therein as to whether curd which was kept for sale was set or not. Another point which needs consideration is that in the present case the sample of curd was collected on 9.10.2009 and notice under Section 13(2) of the Act was issued to the accused on 12.1.2010, i.e., after more than three months of the sample having been so taken. This inordinate delay also prejudiced the accused because even if the accused had availed the opportunity as is envisaged under Section 13(2) of the Act of having sample food article to be tested at Central Food Laboratory, the same could not have restrained its original strength after lapse of more than three months from the date of its collection, as there was nothing on record to substantiate that sample was kept in a refrigerated condition. 14. Be that as it may, in my considered view, learned appellate court has rightly come to the conclusion that there was no proper churning of the curd before its samples were taken by the Food Inspector. The cross-examination of CW2, who is an official witness, demonstrates that he stated in the Court that the container from which sample of curd was taken was measuring 5 to 6 Kgs and the container was slightly less full than its capacity. If that was so, this necessitated the churning of the curd at that stage itself before sample were taken and before part of it was removed from its main container so that a homogeneous unit/sample of the same could be obtained. 15. Ext. P-12 is the complaint filed against the accused under Section 16(1) (a) (i) read with Section 7(i) of PFA Act, 1954. A perusal of the same demonstrates that complainant had mentioned in the same that on 9.10.2009 at around 2:30 p.m. he inspected the restaurant in issue where he found accused, Chandermani, conducting affairs of the business in his capacity as a partner. He had kept 4.5 Kg of curd made from pasteurized standardized milk in a stainless steel tray for sale of general public. Complainant revealed his identity and issued notice declaring his intention to take sample of curd from pasteurized milk for the purpose of analyses. Para two of the complaint reads as under:- "2. He had kept 4.5 Kg of curd made from pasteurized standardized milk in a stainless steel tray for sale of general public. Complainant revealed his identity and issued notice declaring his intention to take sample of curd from pasteurized milk for the purpose of analyses. Para two of the complaint reads as under:- "2. That so purchased Curd made from pasteurized standardized Milk was made properly homogeneous hand mixer in S.S. Jug, then homogenized Curd divided into three equal parts and put into three neat, clear and dry glass bottles in equal proportions, 20 drops of Formalin were added to each bottle as preservative. Bottles were separately corked, labeled and wrapped into a thick paper. A paper slip bearing Sr. No. and Code No. S-II/2967 issued and signed by Local (Health) Authority M.C. Shimla was affixed with gum from bottom to top of each bottle. The signatures of the accused were taken in such a manner so as it appear on the paper slip and the wrapper both. The bottle were fastened with a strong thread and sealed with sealing wax. At least four seal impressions were put on each bottle and all the knots were covered with seal." 16. From the above, it is evident that neither the sample was taken by the Food Inspector in a proper manner nor the curd was made into a homogeneous units in accordance with the settled procedure. 17. In various judgments, this Court has held that the purpose of churning the curd was that the same becomes homogeneous and representative unit of the entire sample. This Court has held that proper way of taking sample of curd was to divide the said curd vertically and entire one compartment of the same should be taken up and thereafter churned and then divided into the parts. This Court has reiterated that churning has to be done thoroughly. This Court has also held that stirring is not churning because former is only rotative process, whereas the latter has to be intermixing all types of curd into one consistent substance. Reference of these judgments is already there in the judgment so passed by the learned appellate court, which, therefore, are not being reproduced in the present judgment. In my considered view, the evidence on record does not demonstrates that the sample was taken by the Food Inspector in the mode and manner prescribed. Reference of these judgments is already there in the judgment so passed by the learned appellate court, which, therefore, are not being reproduced in the present judgment. In my considered view, the evidence on record does not demonstrates that the sample was taken by the Food Inspector in the mode and manner prescribed. There is nothing on record to suggest that proper churning was done of the sample which was taken out form the entire quantity of the curd by the Food Inspector. Neither the Food Inspector has deposed that he had properly churned the samples nor any other witnesses including CW2 has said so. In these circumstances, as a doubt has been created as to whether the sample of curd was properly taken or not, benefit of the same obviously has to go in favour of the accused. This is exactly what has been done by the learned appellate court. Said Court after returning the findings that the sample of curd was not taken in a proper manner and there was no proper churning before the sample was taken, it acquitted all the accused. In my considered view, the findings so returned by learned appellate court are not perverse as the same are duly borne out from the records of the case. In my considered view, record demonstrates that the sample of the curd was not properly taken by the Food Inspector, as there was no proper churning as is required as per law laid down by this Court. As the sample sent for analyses were not proper and the report could not have been used to convict the accused. Therefore, as there is no infirmity with the judgment of acquittal passed by the learned appellate court, this Court while concurring with the findings so returned by the learned appellate court, dismisses this appeal being devoid of merit. Pending miscellaneous applications, if any, also stands disposed of.