IN THE HIGH COURT OF HIMACHAL RADESH SHIMLA Cr. Appeal No. 229/2005 Date of decision: 02.12.2011 State of H.P. …..Appellant Versus Subhash Chand and another ……Respondents Coram: The Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting ?1Yes. For the Appellant: Mr. P.M. Negi, Dy. Advocate General. For the respondents : Mr. Romesh Verma, Advocate. Surinder Singh, Judge. (Oral) State has questioned the acquittal of the respondents hereinafter referred to as ‘the accused persons’ in Criminal Appeal 12-NL/10 of 2002 decided on 17.2.2005, by the learned Additional Sessions Judge, reversing the judgment of conviction and sentence passed by the learned trial Court under Section 16 (1-A) (1) of the Prevention of Food Adulteration Act, 1954 in short ‘the Act’ for allegedly selling adulterated ‘dal Arhar’. 1 Whether the reporters of Local Papers may be allowed to see the judgment ?. yes - 2 - 2. In short, prosecution case can be stated thus. On 30.10.1999 at about 12.30 p.m., PW1 Food Inspector S.C. Joshi intercepted the business premises of the accused running under the name and style ‘M/s V.K. Kariyana Store’ where he found present Subhash Chand the Salesman of the shop along with Vinod Kumar its proprietor. They had exhibited 40 kg of ‘dal arhar’ along with other articles for sale to the general public. (ii) The Food Inspector served notice on Form No-VI (Ext. P1) on Subhash Chand Salesman expressing his intention to pick-up sample of dal arhar for its analysis. Thereafter he purchased 750 grams of ‘dal arhar’ and paid an amount of ` 20/-vide receipt Ext. P2. The purchased dal was mixed-up by the Food Inspector and put in three neat clean and dry bottles which were properly cocked, labeled fastened and sealed in accordance with the provisions of the Act and the Rules framed thereunder. (iii) One of the sample parcels along with Form-II was stated to have been sent by PW4 Mehar Chand to CTL Kandaghat for its analysis. Copy of form-VII along with seal impression was also sent separately through him whereas two remaining parts of the samples along with two copies of the Form of samples were deposited with - 3 - Local (Health) Authority. On its analysis, the public analyst found the contents of the sample containing yellow synthetic food colour “tartrazine” whereas ‘dal arhar’ (food grain) should be free from added colouring matter. The sample of split pulse (dal arhar) was opined to be adulterated vide report Ext. P5. (iv) Thus a complaint against accused No. 1 being the Salesman of accused No. 2, Proprietor was filed in the Court under the aforesaid Act was filed by the Food Inspector as having been authorized to institute prosecution against the person committing offences under the Act Vide H.P Government Notification dated 8.12.1999 under Section 20 (1) of the Act. (v) On the above allegations, the accused persons were accordingly charge sheeted, tried and convicted for the offence aforesaid and sentenced to undergo imprisonment for a period of one year each and to pay a fine of `5000/- each by the learned trial Court, which was challenged in appeal before the Court of Sessions. 3. On reappraisal of the evidence on record, the learned Additional Sessions Judge set aside the judgment of conviction and sentence, resulting in acquittal of the accused persons, on the ground of - 4 - non-compliance of Sections 13 (2) and 10 (7) of the Act and Rules 17 and 18 framed under the Act. 4. Heard and gone through the record. 5. The perusal of evidence on record does not reveal that there has been any infraction of rules 17 and 18 aforesaid with respect to the manner of dispatching the sample to the Public Analyst and sending of memo and impression of seal separately to the Public Analyst. The Food Inspector (PW1) and PW2 Mehar Chand categorically stated about the compliance of the rules aforesaid, which could not be shattered. Thus, the findings of the learned Additional Sessions Judge contrary to the above facts are wrong, as not borne out from the record. Further, non- association of the independent witnesses in the case is also not fatal as the testimony of Food Inspector clearly establishes that he had tried to associate the witnesses present on the spot but they had refused to oblige him. This shows that he had made an attempt to include the independent witnesses at the time of sampling, his un- assailed testimony has to be accepted on its face value. Therefore, these findings are also contrary to the record. 6. But however, the most vital fact which goes against the prosecution is that there has been non- - 5 - compliance of mandatory provision per Section 13 (2) of the Act, receipt of notice has been denied by the accused persons. 7. PW3 Raj Kumar Dealing Assistant of the office of LHA stated that he had sent notice under Section 13 (2) of the Act along with report of analysis under Rule 9 (J) framed under the Act to the accused persons on the address given in the postal receipts Ext. P9 and Ext. P10. The perusal of the aforesaid postal receipts on which prosecution has put its reliance show that there is only a mention of the name of the accused persons and the place ‘Baddi’ which is more or less a township having lot of shops and other establishments. He did not make any mention about the other particulars of the address mentioned in the notice and that same was also mentioned by him on envelop of the notice which was sent through these postal receipts to each of the accused persons. Though he stated that the said notice did not return back but there is also no proof of its service. The certificate of its service could have been obtained from the postal authorities which was not done. Since the address on envelops sent by post was not complete its service cannot be presumed. Further, the report of the public analyst along with the notice could have been tendered to the accused - 6 - persons on their first appearance in the Court or during evidence affording an opportunity to exercise their right to get one part of the sample analyzed from the Central Food Laboratory, without any prejudice. 8. It is well settled that the requirement of Section 13 (2) of the Act is mandatory. In order to satisfy the rigid requirements of Section 13 (2), which confers the valuable right on the accused to prove his defence, the actual receipt not the dispatch has to be established by the prosecution to the extent that it contained the proper and correct address of the accused. Since there has been non-compliance of Section 13 (2) of the Act, the acquittal of the accused persons cannot be interfered with. As such the appeal filed by the State is dismissed. 9. The respondents are discharged of their bail bonds entered upon by them at any stage during the trial of this case. December 2, 2011 (Surinder Singh), (cm) Judge