1 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Revision No. 87 of 2001. Date of Decision: 9-7-2008. _______________________________________________________ Kulbir Sharma. Petitioner Versus State of H.P. Respondent. Coram Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting? No. For the Petitioner : : Mr. Ajay Mohan Goel, Advocate. For respondent : Mr. J.S. Guleria, Law Officer. Surinder Singh, J(oral) . This revision petition has been directed by the convict against the judgment of learned Sessions Judge passed in Criminal Appeal No. 3 of 2001 decided on 2-7-2001 whereby he affirmed the judgment of conviction and sentence passed by learned trial Court under Section 16 (1) (a) (i) read with Section 7 (ii) and 16 (1) (a) (ii) read with Section 7 (iii) of the Prevention of Food Adulteration Act, in short the ‘Act’. The trial Court had sentenced the petitioner as under :- ____________________________________________________ Sr. No. Offence. Sentence imposed. i) 16 (1) (a) (i) read Simple imprisonment for six months with Section 7 (ii). and fine of Rs. 1000/-. ii) 16 (1) (a) (ii) read Simple imprisonment for six months with Section 7 (iii). and fine of rupees 1000/-. In default of payment of fine, the convict shall further undergo simple imprisonment for three months for each of the aforesaid offences. In brief, the prosecution case is that on 28-1-2000, at 11.30 a.m. the Food Inspector entered the shop “Kulllu Urban 2 Cooperative Society” at Akhara Bazar, Kullu and found the petitioner herein conducting its business. He had displayed the Karyana items including Haldi powder for sale to the General Public meant for human consumption. The Food Inspector disclosed his identity in the presence of Ram Kumar Sood (PW3) and expressed his intention to take the sample of Haldi Powder for analysis; consequently, he served the notice Exhibit-P1 in Form (VI) and purchased 200 grams of Haldi Powder from his shop and paid Rs. 18/- vide receipt Exhibit-P2. The samples of Haldi so purchased were properly packed and sealed in accordance with law and these proceedings were recorded in the Panchnama Exhibit-P3, which was signed by the petitioner and the witnesses. One part of the sample along with the memo Exhibit-P4 in Form-VII, was sent to the Public Analyst in a sealed parcel by registered post. The postal receipt is Exhibit-P5. Food Inspector sent the sample and seal impressions used in sealing of the sample proceedings to C.T.L. Kandaghat separately vide registered letter, the postal receipt whereof was placed in evidence as Exhibit-P6. Remaining parts of the sample were deposited with Local Health Authority, Kullu. On analysis, the Public Analyst submitted the report. In his opinion, the package of Haldi powder was not labeled in accordance with the provisions of the Act and the rules framed there-under. Thus, the sample sent was found to be “mis-branded’. Notice under Section 13 (2) of the Act Exhibit-P11 was sent by the Local Health Authority. The written consent Exhibit- P10 was obtained for launching the prosecution. Thereafter, the complaint was filed in the Court, for the offence of mis-branding and selling food articles without a food license. 3 Notice of accusation was put to the petitioner to which he denied. The prosecution led its evidence to prove its case and the petitioner was also examined under Section 313 of the Code of Criminal Procedure. At the end of the trial, the petitioner was convicted and sentenced as afore-said. Feeling aggrieved, the petitioner filed the appeal before the learned Sessions Judge which was dismissed. In the instant petition, the petitioner has contended that both the courts below have erred in holding the petitioner guilty on the strength of the discrepant evidence and further, that the Chief Medical Officer gave his consent in a mechanical manner without the application of mind which is fatal to the prosecution. Shri Ajay Mohan Goel, learned Advocate has argued that the evidence on record is contrary to the case initially put against the petitioner. The misbranding is not found and the Food Inspector did not utter even a single word when examined in the court that the petitioner was selling the food articles without any license. The written consent Exhibit P10 does not spell out the application of mind. Therefore, both the courts below erred in holding the appellant guilty of the alleged offence. Contra, Shri J.S. Guleria, learned Law Officer has supported the impugned judgment of conviction and sentence and findings of guilt passed by both the courts below. According to him, the written consent for launching the prosecution was given by the competent authority after going through the relevant documents, which spells out the application of mind. To launch the prosecution, the sanction to prosecute for the alleged offence is a sine qua non. The first question which arises for determination is whether the consent to launch prosecution (Exhibit-P10) spells out the application of mind. 4 Section 20 (1) of the Act makes necessary the consent of the prescribed authority or a person, a condition precedent to the institution of the prosecution. It does not require the written consent in any particular form. All that this provision requires is that the consent should be written and should be of a prescribed authority or person authorized in this behalf. It implies that the consenting authority or the person has applied its or his mind sufficiently to the facts of the case to make the consent real not a pretence or ideal formality. PW1 Food Inspector stated that all the relevant documents were placed before Shri B.S. Saini, Chief Medical Officer Kullu vide application Exhibit-P9 for his written consent to launch the prosecution against the petitioner. Thereafter, the Chief Medical Officer after applying his mind, and having gone through the said documents, accorded the sanction Exhibit-P10. PW2 Purshotam Lal Dealing Assistant stated that he placed all the documents before the Chief Medical Officer and after seeing the documents, C.M.O. put his initials and date on each of the documents and dictated the matter to him. Then said that C.M.O. gave the dictation of consent Exhibit-P10 in his presence. Consent is dated 1-4-2000 but in the cross- examination, he specifically stated that he had placed all the papers concerning this case on 18.4.2000 before the Chief Medical Officer and after two-three days, the Chief Medical Officer gave the dictation of the said letter (Exhibit-P10) and he typed it on the same day and obtained the signatures of the Chief Medical Officer. To explain this serious ambiguity regarding the date, no request was made to re-examine him. Therefore, this statement is not only contradictory but is unacceptable on the face of it and it makes the according of consent highly doubtful. Thus, his 5 statement makes the consent Exhibit P10 redundant and otherwise also in view of the above, it does not spell out the application of mind by the Chief Medical Officer, which is fatal to the prosecution. The second point which makes the case of the prosecution doubtful is that the notice Exhibit P1, was given by the Food Inspector to pick up the sample of ‘Haldi Gulal’ (Haldi Powder) for which he paid Rs. 18/- vide receipt Exhibit-P2. Whereas in the Panchnama Exhibit P3, Food Inspector has mentioned that he had taken the sample of Haldi Powder (three packets). The sample of Haldi was found in conformity with the prescribed standard except, that nothing was found mentioned on the packet, thus it was alleged to be ‘misbranded’. It is worth noting that the Food Inspector while picking up the sample did not mention in Panchnama that nothing was mentioned on the label of the packet as opined by the Public Analyst, nor he stated so in the Court that the label on the package of Haldi was not in accordance with the Act and rules prescribed there under. Therefore, in these circumstances, in my opinion, the allegation of misbranding also stands not proved. As far as the next allegation with respect to selling of the food articles without food license is concerned, the Food Inspector in his statement did not utter even a single sentence that the accused was selling the food articles without license. In absence of it, his admission in his statement under Section 313, Cr.P.C. carries no value as since the prosecution also failed to discharge its initial onus. For the fore-going reasons, the judgment of conviction and sentence passed by the learned trial Court in complaint No. 72-1 of 2000 decided on 13.2.2001 and affirmed by the learned Additional Sessions Judge in criminal appeal No. 3 of 2001 is 6 hereby set-aside and the petitioner is acquitted of the offence charged. Fine if any deposited by him, be refunded to him forthwith. (Surinder Singh) Judge. July 9, 2008. (bm)