IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Criminal Appeal No. 326 of 2001. Decided on: 7.7.2008. __________________________________________________ State of Himachal Pradesh. … Appellant. Versus Kartar Singh … Respondent. ________________________________________________________ Coram: Hon’bl Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1 For the appellant : Mr. Rajinder Dogra, Addl. A.G. For the Respondent : Mr. Anand Sharma, Advocate. ___________________________________________________________ Rajiv Sharma, Judge. (Oral) The respondent was prosecuted in criminal case No. 172-III of 1995 under Sections 61 (1)(a) (i) and 16 (1-A) read with Section 7 of the Prevention of Food Adulteration Act, in the Court of Sub Divisional Judicial Magistrate, Dalhousie, District Chamba and was acquitted on 17.10.2000. The brief facts as gathered from the judgment of the trial Court which are necessary for the adjudication of this appeal are that on 21.2.1995, Food Inspector Shri B.S. Sidhu inspected the ‘Karyana’ shop of accused and purchased 750 grams ‘Maida’ after making that homogeneous. He gave notice to the accused and took sample of ‘Maida’. The ‘Maida’ was put into three dry, clean and empty bottles as 1 Whether reporters of the local papers may be allowed to see the judgment? 2 per rules. One sample was sent to Public Analyst, Kandaghat and the remaining two parts were sent to LHA, Chamba. The report was received which revealed that the sample was adulterated as it contained living insects. The prosecution filed the complaint after obtaining the consent from the C.M.O., Chamba. The prosecution had examined three witnesses to prove its case. The accused was examined under Section 313 Cr.P.C. The trial Court acquitted the accused on 17.10.2000. Hence, this appeal by the State. The learned Additional Advocate General has strenuously argued that the prosecution has proved its case and the judgment dated 17.10.2000 is not sustainable in the eyes of law. Mr. Anand Sharma, learned counsel for the respondent has supported the judgment dated 17.10.2000 and has heavily relied upon the judgment of this Court reported in 1999 (1) F.A.J. 63 (H.P.). I have heard the parties and have perused the record carefully. The sample was taken by PW-3 on 21.2.1995. He has admitted in his cross-examination that the sample was taken by him in a rainy season and the bottle in fact was cleaned by him at the spot. PW-2 Joginder Kumar has not supported the prosecution case. He has shown his ignorance about division of sample into parts. In his cross-examination, he has deposed that the bottles were cleaned by the Food Inspector and thereafter ‘Maida’ was put in the bottles. PW-3 Shri B.S. Sidhu has not associated any member from the public at the time when the sample was taken and it was sealed. 3 The prosecution has failed to prove that the sample was made homogeneous by following the method of quartering. PW-3 Mr. B.S. Sidhu had only deposed that ‘Maida’ was mixed with bamboo. The sample was to be made homogenous by following the method of quartering as held by this Court in ‘Daulat Ram Vs. State of H.P. 1999 (1) F.A.J. 63 (H.P.). The consent Ext. PL is dated 17.6.1995 which was granted by the C.M.O., Chamba. The competent authority has not been examined in this case. PW-1, Gian Chand, who was working as Assistant in the office of the C.M.O., Chamba, has been examined. He has not seen the competent authority signing the consent form. PW-3 has also not followed Rule 14 of the Food Adulteration Rules, 1955 while taking the sample of ‘Maida’. The sample was to be taken by using clean and dry bottles and the prosecution had to lead evidence during the course of trial that the bottles used were in fact clean and dry. PW-3 has admitted in his cross-examination that the sample was taken during the rainy season. The bottles were washed at the spot by PW-3, which fact was also admitted by PW-2. Thus, the possibility of moisture remaining in the bottles cannot be ruled out. The trial Court on correct appreciation of the evidence has acquitted the respondent. The prosecution has failed to prove its case. Consequently, there is no merit in this appeal. Hence, the appeal is dismissed being devoid of any merit. Bail/surety bonds are discharged. (Rajiv Sharma), J. July 7, 2008. (cr) 4