HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Cr.A. No. : 701 of 2002 Decided on: 20.3.2010 State of H.P. ……… Appellant. Versus Lachhu Ram ………Respondent. Coram: The Hon’ble Mr.Justice V.K. Ahuja, Judge. Whether approved for reporting? No. For the Appellant: Mr.Vikas Rathour, Deputy Advocate General, and Mr.J.S. Guleria, Assistant Advocate General. For the respondent: Mr.N.S. Chandel, Advocate. V.K. Ahuja, J.: This is an appeal filed by the appellant/ State of H.P. against the judgment of the court of learned Sessions Judge, Bilaspur, dated 17.5.2002, vide which he accepted the appeal filed by the respondent and set aside the judgment of conviction passed by the learned Additional Chief Judicial Magistrate, Ghumarwin, dated 7.6.1996. Briefly stated the facts of the case are that Food Inspector Shri G.R. Puri inspected the karyana shop of the respondent at Village Lethwin on 10.3.1993 at about 1.00 p.m. in the presence of witnesses Roop Singh and Dile Ram. He found various articles of food kept there and the respondent was not having any license as required under Rule 50 of Prevention of Food Adulteration Rules. He also observed that gur was lying there in 8 gunny bags totaling about 35 kg. for human consumption. He disclosed his identity ___________________________________________ Whether reporters of local newspapers may be allowed to see the judgment? Yes. - 2 - and purchased 600 grams of gur from the respondent on payment of Rs.3.60 for which a receipt was also prepared and was signed by the respondent. The gur so purchased was duly sealed in three equal parts and was put in clean and dry bottles as per the procedure and one sealed bottle was sent to the public analyst, Kandaghat. On receipt of the report of the public analyst that the gur was adulterated and was not conforming to the standards, after taking sanction from the local authority, the complaint was filed as against the respondent before the learned trial Court. The learned trial Court framed a charge under Sections 16(1A) and 16(1)(a)(ii) of the Prevention of Food Adulteration Act and tried the respondent leading to his conviction for a period of one year (simple imprisonment) and fine of Rs.2,000/-. On appeal, these findings were set aside by the learned Sessions Judge, leading to the acquittal of the respondent. Feeling aggrieved, the State has filed the present appeal. I have heard the learned counsel for the parties and have gone through the record of the case. On appraisal of the judgment passed by the learned Sessions Judge, Bilaspur, it is clear that the learned Sessions Judge had accepted the appeal on two grounds. Firstly, that the evidence led proved that the gur was not meant for human consumption and, therefore, it did not attract the provision of Food Adulteration Act and secondly, on the ground that the sanction was not properly accorded as required under Section 20 of the Act. Coming to the first point, it appears that what has weighed with the learned Sessions Judge in holding - 3 - that the gur was not meant for human consumption is that an independent witness Roop Singh, who was associated by the Food Inspector at the time of taking of sample, had not been examined by the prosecution. He had been left over and, therefore, an adverse inference was drawn against the prosecution for withholding a material witness. It is clear from the perusal of the record of the case that apart from the Food Inspector, who was examined as PW-1, the prosecution has examined PW-3 Dile Ram, Peon of the office of Chief Medical Officer and, therefore, an employee working under the Food Inspector. Therefore, this PW-3 Dile Ram cannot be termed as an independent witness. Only the witness Roop Singh was an independent witness, who was given up by the prosecution. The learned Sessions Judge has referred to a judgment of this Court in Parkash Chand versus State of H.P., 1999(1) RCR (Cr.) 419, wherein it was held that a witness should be examined and produced in the court, subjected to cross examination and then the court can form an opinion whether he was a truthful witness or not. Merely, on the basis of the statement made by the Public Prosecutor that since the witness was won over, he would not speak truth, and therefore, he was not examined in the court. However, the witness should have been produced in the court, subjected to cross examination and then only the court can form an opinion as to whether his statement can be relied upon or not. Therefore, adverse inference was drawn by the learned Sessions Judge and rightly so, which findings cannot be said to be incorrect. - 4 - The said independent witness Roop Singh was examined as DW-1 and he clarified that the sample of raskat gur was taken which was full of moisture and there was a board displaying that the said gur was meant for animals. He also stated that the rate of raskat gur was Rs.6.00 per kg. Thus, the rate for raskat gur was Rs.6.00 per kg. and the rate of the gur purchased by the Food Inspector was Rs.3.60 per kg. for 600 grams and Rs.6.00 for 1 kg. The suggestions should have been put to this witness so that it could have come on the record as to what was the rate of gur meant for human consumption. No such suggestion was put to the said witness in cross examination. Therefore, his statement that the raskat gur meant for human consumption was Rs.6.00 per kg. goes un-rebutted and for both these reasons the final conclusion drawn by the learned trial Court holding that the prosecution has failed to prove that the gur was meant for human consumption, cannot be termed as perverse, though another view could have been taken. Once the view taken by the learned Sessions Judge cannot be termed as perverse, in appeal, it cannot be set aside. In regard to the second point, the learned Sessions Judge has referred to the decisions of this Court and has concluded that since the particulars of the sanction order were filled in by the Clerk and not by the Chief Medical Officer himself or under his dictation, therefore, it was held that the sanction accorded was not proper. Those findings also, on the basis of the decisions referred to, cannot be termed as perverse calling for an interference by this Court. - 5 - In vied of the above discussion, I accordingly hold that there is not merit in the appeal filed by the appellant, which is dismissed accordingly. The bail bonds furnished by the respondent shall also stand discharged. March 20, 2010. (V.K. Ahuja), (TILAK) Judge