1 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Criminal Revision No. 196 of 2002. Judgment reserved on : 27.5.2009. Date of decision: June 15 2009. Prem chand …Petitioner. Versus State of Himachal Pradesh and another ....Respondents. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting ? Yes For the Petitioner : Mr. Sanjeev Kuthiala, Advocate. For the Respondents. Mr. Anshul Bansal, Additional Advocate General. __________________________________________________________ Kuldip Singh, Judge This revision has been directed against the judgment dated 11.10.2002 passed by learned Sessions Judge, Kullu in Criminal Appeal No. 5/2002 affirming judgment dated 3.8.2002 passed by learned Chief Judicial Magistrate, Lahaul-Spiti at Kullu in Cr. Case No.73-I of 2000 whereby the petitioner was convicted under Section 16(1)(a)(i) of the Prevention of Food Adulteration Act, 1954 ( for short Act) and sentenced to undergo simple imprisonment for six months and to pay fine of Rs.1000/-, in default of payment of fine to undergo simple imprisonment for a period of one month. _____________________ 1 Whether reporters of Local Papers may be allowed to see the Judgment ? Yes 2 2. The prosecution case, in brief, is that PW-1 Jagdish Ram Food Inspector intercepted the petitioner on 17.12.1999 at about 8 a.m. at Bhutti Bus Stand Kullu while he was unloading cans containing about 120 litres of cow milk from a vehicle for the purpose of sale to general public for human consumption. PW-1 disclosed his identity and expressed his intention to purchase milk for analysis. Thereupon PW-1 purchased 750 gms cow milk on payment of Rs.8/- from petitioner from a container containing about 20 kg. of cows milk. The milk so purchased was put into three dry clean bottles and 20 drops of formalin were added to each bottle. The bottles were then properly labelled and stoppered, paper slips issued by the local health authority were affixed on each bottle. The bottles were fastened with strong thread and sealed properly. The signatures of petitioner were taken on each bottle. One part of the sample was sent for chemical analysis. The analyst found the sample to be adulterated for milk fat as well as for milk solids not fat. The consent was obtained for prosecuting the petitioner and the complaint was filed. The petitioner was summoned, notice of accusation was put to petitioner under Section 16(1)(a)(i) of the Act, who pleaded not guilty. The complainant had examined three witnesses. The statement of petitioner was recorded under Section 313 Cr,.P.C., he denied that the sample was adulterated. The learned Chief Judicial Magistrate on 3.8.2002 convicted and sentenced the petitioner as noticed above. The appeal filed by petitioner was dismissed by learned Sessions Judge, Kullu on 11.10.2002, hence accused has come in revision. 3. Heard and perused the record. Mr. Sanjeev Kuthiala, learned counsel appearing on behalf of the petitioner has submitted that milk was not meant for sale. The petitioner was simply loading and unloading the milk when the sample was allegedly taken by the Food 3 Inspector. He has submitted that the procuring of milk from petitioner by Food Inspector when he was loading and unloading the milk does not come within the meaning of sale under the Act. The sample was not taken in accordance with Act and Rules. The milk was not stirred and made homogeneous before taking the sample. The panchnama Ex.P-3 nowhere refers to making the sample homogeneous. PW-3 Jagdish Kumar independent witness of the taking of the sample has not supported the prosecution case. It is not the case where sole testimony of the Food Inspector is enough to convict the petitioner. There is non-compliance of Proviso to Sub Section (2C) of Section 13 of the Act. In any case , the certificate issued by the Director Central Food Laboratory has overriding effect under Sub Section (3) of Section 13. The learned Addl. Advocate General has supported the impugned judgment. He has submitted that the two courts below have rightly appreciated the facts and law and no fault can be found with the conviction and sentence of the petitioner in revision. The conviction can be based on the sole testimony of the Food Inspector. 4. According to petitioner procurement of the sample by PW-1 when petitioner was loading and unloading the milk does not come within the purview of the sale under the Act. It has, however, come on record that PW-1 in fact had purchased milk from petitioner vide Ex.P-1 for analysis from public analyst and vide Ex.P-2 a sum of Rs. 8/- was received by petitioner in token of having sold 750 grams of cow milk to PW-1. In State vs. Kalyan Singh 1971 S.L.J 314 a Division Bench of this Court has held that even if the oil kept in the tin weighing about 7 or 8 kg. was stored for domestic use and the accused gave it as a sample or the Food Inspector himself took a sample out of the tin and the accused accepted the price it would, therefore, clearly amount to sale within the 4 definition of Section 2(XIII) of the Act. If the article was not meant for sale the accused should have refused to accept the price. In the present case, the sale of milk by petitioner to PW-1 against price paid has been proved on record. It is, thus clear that the milk was sold by petitioner to PW-1 which comes within the definition of sale under the Act. 5. The next grievance of the learned counsel for the petitioner is that the sample was not made homogeneous and this fact has not been recorded in panchnama Ex.P-3. PW-1 Jagdish Ram Food Inspector in his statement has clearly given the details how the sample was taken. He has stated that a can containing about 20 litres of cow milk was first stirred up and down with long handle measure, it was stirred clockwise and anti clockwise to make homogeneous. Thereafter 750 ml. of so homogeneously mixed cow milk was purchased. PW-1 was not cross-examined on this point. No question was put to PW-1 in cross- examination that infact petitioner had not sold any milk to him. PW-3 Jagdish Kumar independent witness of the taking of the sample was declared hostile and he was cross-examined by the prosecution. He has admitted his signatures on receipt Ex.P-2 as well as on panchnama Ex.P-3. Therefore, it can be safely inferred that milk was sold by petitioner to PW-1 in the presence of PW-3 but for reasons best known to PW-3 he has resiled. But this does not affect the case of the prosecution. It has been proved on record from the statement of PW-1 as well as PW-3 that PW-1 had purchased 750 ml. cow milk for the purpose of analysis. Ex.P-9 is the consent dated 26.2.2000 which was given by Chief Medical Officer, Kullu for prosecuting the petitioner. The prosecution has proved the consent Ex.P-9 on record. Ex.P-7 is the report of public analyst which shows that milk fat content was 3.3% against the minimum prescribed standard of 3.5% and milk solids not fat content was 7.12% against the 5 minimum prescribed standard of 8.5%. The sample of cow milk was thus found adulterated. The prosecution has proved all material facts for prosecuting the petitioner. 6. The petitioner under Section 13(2) of the Act applied for sending the second part of the sample for analysis to Central Food Laboratory. This application was allowed on 24.3.2000 and ultimately vide order dated 4.5.2000 the sample was sent to Director Central food laboratory. The Director Central food laboratory vide certificate dated 11.5.2000 certified that the sample was received in broken condition and contents were lost during transit. The seals were intact, properly fastened and tallied with the specimen seal impression received separately from Court. 7. Sub Section (3) of Section 13 provides that the certificate issued by the Director Central food Laboratory under Sub Section (2B) shall supersede the report given by the public analyst under Sub Section (1). It is not the case of the prosecution that when the second sample was sent to Director Central food Laboratory for analysis thereafter no certificate was issued by Director Central food Laboratory. The certificate dated 11.5.2000 of Director Central Food Laboratory has thus superseded public analyst report Ex.P-7 and there was left nothing on record to show that the sample of milk of petitioner was adulterated. 8. There is another aspect of the case. The Chief Judicial Magistrate vide order dated 4.5.2000 had sent the second sample to Director Central food Laboratory for analysis. The Chief Judicial Magistrate on 22.6.2000 has observed that the accused had expressed his unwillingness to send the third sample to Director Central food Laboratory for examination, his statement to this effect was recorded separately. However, the Chief Judicial Magistrate has not recorded a 6 specific order that in view of the statement of accused the third sample is not to be sent to the Director Central food Laboratory in the order dated 22.6.2000. The proviso to Sub Section (2C) of Section 13 provides that where the part of the sample sent by the court to the Director Central food Laboratory is lost or damaged, the court shall require the Local (Health) Authority to forward the part of the sample, if any, retained by it to the court and on receipt thereof, the court shall proceed in the manner provided in Sub Section (2B). The trial Court has failed to comply with the mandate of proviso to Sub Section (2C) of Section 13 when no attempt was made to send the third sample to Director Central food Laboratory when the second sample which was sent to Director Central food Laboratory was found damaged. 9. In Chetumal vs. State of Madhya Pradesh and another AIR 1981 SC 1387, the appellant had challenged the opinion of the analyst and requested the Court to send the part of the sample kept with the local authority to the Director Central Food Laboratory for analysis. The certificate of the Director Central food Laboratory was that the article of food was adulterated. In the trial court, an objection was taken that the certificate of the Director Central food Laboratory should be excluded from consideration as the Director had reported that the specimen impression seal sent to him did not tally with the seal of the container in which the sample of oil was sent to him. The trial court excluded the report of the Director and convicted the appellant upon the report of the public analyst. The conviction and sentence were confirmed by the Sessions Judge and High Court. On those facts, the Supreme Court has held as follows:- “ It is clear that the conviction cannot stand. Under Section 13(3) of the Prevention of Food Adulteration Act, the report of the Public Analyst stood superseded by the certificate issued by the 7 director of the Central Food Laboratory. Having been so superseded, the report of the Public Analyst could not, therefore, be relied upon to base a conviction. The certificate of the Director of the Central food Laboratory having been excluded from consideration because of the tampering of the seals, there was really no evidence before the court on the basis of which the appellant could be convicted. The Court could not fall back on the report of the Public Analyst as it had been superseded. The only method of challenging the report of the Public Analyst was by having the sample tested by the Director of the Central food Laboratory. In the present case the appellant was deprived of the opportunity to which he was entitled for no fault of his. It was not, therefore, open to the court to fall back upon the report of the Public analyst to convict the appellant”. 10. In Padam Chand vs. State of Rajasthan 1997 (2) FAC 146, the facts were that public analyst found the sample of Burfi adulterated. The second sample was sent to Director Central food Laboratory who reported the same to be decomposed and not fit for analysis. Thereafter third sample was sent to Director Central food Laboratory, who declared the third sample also as decomposed. On receipt of the certificate of Director the petitioner requested the Magistrate to drop the proceedings as there was no evidence of adulteration of Burfi. The Magistrate declined to accept the prayer. The petitioner filed petition under Section 482 Cr.P.C. It was held that since the certificate of the Director supersedes the report of the public analyst and if the Director has been unable to examine the sample of the food stuff, sent to him as the same had deteriorated and thus not fit for analysis and no fault was attributable to the accused, the Magistrate cannot fall back to the report of the public analyst for the conviction of the accused under Sections 7/16 of the Act. 8 11. In the present case Director Central food Laboratory had sent the certificate dated 11.5.2000 wherein it has been stated that sample received in broken condition and contents were lost during transit. This certificate superseded the report of the public analyst Ex.P-7. The trial Court had made no attempt to send the third sample to Director Central food Laboratory in compliance to proviso to Sub Section (2C) of Section 13. Thus prejudice has been caused to the petitioner. In view of the supersession of public analyst report Ex.P-7 by Director Central food Laboratory certificate dated 11.5.2000 there is nothing on record to show that the sample was adulterated. The two courts below have not properly appreciated the legal position, resultantly, the revision deserves to be allowed. No other point was urged. 12. The result of the above discussion, revision is allowed, judgment dated 11.10.2002 passed by Sessions Judge, Kullu in Criminal Appeal No. 5/2002 along with judgment dated 3.8.2002 passed by Chief Judicial Magistrate, Lahaul-Spiti at Kullu in Cr. Case No.73-I of 2000 are set aside, the petitioner is acquitted of the accusation, fine amount, if any deposited by the petitioner be refunded to him. His bail bonds are discharged. June 15, 2009. ( Kuldip Singh ), (sks) Judge.