IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 138 of 2004 Date of decision: 26.10.2010 State of H.P. ... Appellant Versus Bhupinder Grover … Respondent Coram : The Hon’ble Mr. Justice V.K. Ahuja, Judge. Whether approved for reporting?1 No. For the appellant: Mr. J.S. Guleria, Assistant Advocate General. For the respondent: Mr. Sunil Mohan Goel, Advocate. V.K. Ahuja , J. (Oral): This is an appeal filed by the State of H.P. under Section 378 Cr.P.C. against the judgment of the Court of learned Chief Judicial Magistrate, Kullu, dated 5.3.2003, vide which the respondent was acquitted of the notice of accusation put up to him for the offence under Section 10(1)(a(i) punishable under Section 16(1)(c) of the Prevention of Food Adulteration Act, 1954, hereinafter referred to as ‘the Act’. 2. Briefly stated, the facts of the case are that on 24.8.2001, at about 2.15 P.M., Jagdish Dhiman, Food Inspector, visited shop of the respondent, gave him his introduction and sought licence from him, which was shown by the respondent, who had kept toffees in his shop for sale. He further stated that he 1Whether reporters of Local Papers may be allowed to see the judgment? Yes. 2 intends to give a notice in Form-VI for taking of the samples, but the respondent refused to give him sample, gave him threat and thereafter, he prepared a panchnama. After obtaining sanction from the Chief Medical Officer, he filed the complaint before the learned trial Court, who tried the respondent as detailed above, leading to his acquittal. 3. I have heard the learned counsel for the parties and have gone through the record of the case. 4. On appraisal of the evidence led by the prosecution, it is clear that the case of the prosecution mainly rests upon the statement of CW-1 Jagdish Dhiman, Food Inspector and that of the peon attached with him, namely, CW-3 Kishan Chand. CW-1 has stated that when he went to the shop of the respondent, demanded licence from him and same was shown by the respondent to him. He thereafter stated that he intended to give him a notice in Form-VI, but the respondent refused to give sample. According to provisions of Section 11(1)(a) of ‘the Act’, the Food Inspector has to give a notice in writing showing his intention to have the sample analysed, which he intends to take from the shop. There is nothing on record to show that any notice in Form-VI or any other notice was issued by the complainant to the respondent showing his intention to take the sample. He cannot verbally demand that the sample be sold to him for the purpose of analysis, but he has to give a notice to the respondent indicating his intention to take the sample, which was not done by the complainant, which makes his version doubtful. The notice has to be given in writing and in case notice had been prepared by him and issued to the respondent, if the respondent refused to take the 3 notice, which would have substantiated the case of the complainant, which is not so. CW-1 has stated that he prepared a panchnama Ext. P-1 and joined Kishan Chand, Peon, as a witness to the panchnama, but the respondent has refused to sign the same. However, statement of CW-3 Kishan Chand, only eye witness, who is a Class-IV under the Food Inspector, has stated that this panchnama was prepared by the Food Inspector in his office subsequently, which clearly shows that it was not prepared at the spot or no notice under Section 11(1)(a) of ‘the Act’ was issued to the respondent. The witness was attached with the Food Inspector and was working under him and in all probability, he was to support the complainant, but there is nothing why he does not support the complainant and stated that this panchnama was prepared subsequently in the office. Therefore, his version makes the statement of the complainant doubtful, which cannot be relied upon. 5. Apart from the above, according to the provisions of Section 10(7) of ‘the Act’, the Food Inspector, has to make efforts to call one or more persons to be present at the time when such action is taken and take his or their signatures. In the present case, CW-1 has simply stated that several persons were present there and he asked them to become the witness, but nobody was prepared to become the witness. A notice under Section 10(7) of ‘the Act’ could have been given to the witness and it is in evidence that there are other shops also. There is nothing that those shopkeepers will not support the complainant since he could also take their samples, as has been observed by the learned trial Court. However, there is nothing to show that he made any sincere efforts to comply with the 4 provisions of joining of independent witness as required under Section 10(7) of ‘the Act’. He could have taken their names and issued notice to them, but no such procedure was followed and he states that he asked the persons who were present there to become witnesses but they refused, does not inspire confidence and as such, cannot be relied upon in the absence of due corroboration from the statement of independent witness or even from the official witness. Since the only witness associated by him CW-3 Kishan Chand has also not supported him on material particulars. Thus, it does not stand established that the Food Inspector gave a notice in writing to the respondent to show his intention to take sample. He did not associate any independent witness and the panchnama prepared by him was also not issued to the respondent and his version in Ext. P-1 that the respondent had refused to sign cannot be relied upon. 6. The net result drawn by the learned trial Court holding that the complainant has failed to prove his case and acquitting the respondent, cannot be said to be perverse, calling for an interference by this Court. 7. In view of the above discussion, I accordingly hold that there is no merit in the appeal filed by the appellant, which is dismissed accordingly. The bail bonds furnishsed by the respondent shall stand discharged. ( V.K. Ahuja ), October 26, 2010 Judge (BSS) 5