IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Cr. A. No. 173 of 2003 Decided on: 15.5.2010 State of H.P. ..…Appellant Versus Ramesh Chand ..…Respondent Coram The Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting ?1Yes For the Appellant : Mr. J.S. Rana, Asstt. A.G. For the Respondent : Mr. Naresh K. Thakur, Advocate. Surinder Singh,J. (Oral) The State has challenged the acquittal of the respondent passed by the Learned Sessions Judge, Bilaspur in Criminal Appeal No. 8 of 1997, decided on 15.7.22002, reversing the judgment of conviction and sentence passed by the learned trial Court under Section 16(1)(a)(i) of the Prevention of Food Adulteration Act, in short ‘the Act’ allegedly for selling non- iodized salt. 2. Heard and gone through the records of both the Courts below. 3. In short, the facts giving rise to the present appeal can be stated thus. On 20th January, 1994, at about 11.40 a.m. 1 Whether the reporters of Local Papers may be allowed to see the judgment? 2 PW3 Shri G.R. Puri, Food Inspector, Bilaspur visited the shop of the accused in village Solag, Tehsil Sadar, District Bilaspur. He was accompanied by PW4 Dila Ram, Peon from the office of Chief Medical Officer, Bilaspur. When the said shop was intercepted by Food Inspector, he noticed three bags, each weighing 40 Kgs. of Iodized salt kept for sale. It is alleged that in the beginning the respondent did not produce his licence and did not disclose his identity. He tried to mislead the Food Inspector by supplying wrong particulars, since the respondent was conducting the business in the shop, the said Food Inspector purchased 600 grams iodized salt by paying 60 paise its price. The purchased salt was divided into three equal parts and each part was put in a clean and dry bottle. Each of the bottles were stoppered with seal in accordance with law and a panchnama Ext.P2 of the entire proceedings was prepared. Thereafter, a part of the seal alongwith form-VII was sent to the Public Analyst, Chandigarh by registered post. A copy thereof along with the specimen seal impression was also sent separately to the Public Analyst by the same process. 4. On analysis the contents of the sample was found to contain no iodine. Thus, it was non-iodized common salt, the use and sale of which as an article of food has been banned throughout the State of Himachal Pradesh vide Government Notification No. HFW-BA(V)-7/83, dated 30.8.1983. Therefore, the contents of the sample was opined to be adulterated as per the report of Public Analyst (Ext. P11). 5. On the receipt of the said report, the Food Inspector submitted the papers for obtaining the consent. 3 6. The Food Inspector had also sent a notice under Section 13(2) of the Act read with Rule 9-A framed under the Act to the respondent and thereafter, prosecution was launched against the respondent. 7. The respondent was put to trial for the said offence under the Food Act and also under Section 177 of the Indian Penal Code. The defence was raised that salt was not meant for human consumption. After full-fledged trial, the respondent was acquitted under Section 177 of the Indian Penal Code but did not agree with defence put forth as such convicted respondent under Section 16(1)(a)(i) of the Act and sentenced to undergo the simple imprisonment for a period of six months and to pay a fine of Rs. 1000/- and in case of non-payment of fine to further undergo simple imprisonment for a period of three months. 8. The respondent felt aggrieved and dissatisfied by the impugned judgment of conviction passed by the trial Court, as such, filed Criminal Appeal No. 8 of 1997 before the Court of Sessions. The learned Sessions Judge acquitted the respondent on the following grounds:- (a) The Food Inspector sent less quantity of sample than prescribed, to the Public analyst for analysis. Thus, there was infraction of Rule 22. (b) There was violation of Section 10(7) of the Act because of non- inclusion of the independent witness. (c) The defendce version stood probablized that the salt in question was meant for animals and not for human consumption. 4 9. Now, I shall take up the above points for its reappraisal and scrutiny. 10. (a) The Food Inspector is proved to have taken the sample of the salt on 20th January, 1994 as alleged. Admittedly PW3 Food Inspector had purchased 600 grams iodized salt and he divided it in three equal parts, then put it in three dry & clean bottles, stoppered and sealed it, meaning thereby he imparted 200 grams in each of the sample bottles which was sent for the analysis to the Public Analyst. 11. Rule 22 framed under the Act, as it then stood prescribed to send minimum 500 grams of salt for analysis. Taking note of the above facts while relying on the judgment of the Supreme Court rendered in Rajaldas G.Pamnani, appellat v. State of Maharashtra, AIR 1975 Supreme Court 189, the learned Sessions Judge held the infraction of the said rules causing injustice to the respondent as the correct quantity for analysis was not sent for analysis and the quantity sent was not permitted under the statute. 12. It is pertinent to note here that Rule 22-B was inserted by G.S.R. 775(E) in the year 1997 and it came into force with effect from 27.12.1997. It provided that notwithstanding anything contained in Rule 22 ibid the quantity of sample sent for analysis shall be considered as sufficient unless the Public Analyst or the Directors reports to the contrary. In the year 1994 when the sample was taken in this case there was no such provision which only case into being in the 1997, therefore, Rajaldas G.Padmami’s case supra, in the instant case is not applicable. 5 13. Further, in State of Kerala and others vs Alasserry Mohammed and others with connected matters, (1978) 2 Supreme Court Cases 386, constitution Bench of Supreme Court, taking note of Rule 22 much prior to the induction of Rule 22-B ibid held it only directory in nature. Therefore, in view of the above settled position, the findings of the learned Sessions Judge that there has been a violation of Rule 22 of the Rules framed under the Act is wrong, therefore, set-aside. 14. (b) & (c). Both these points are intrinsically mixed together, being inter-connected, therefore, require to be dealt together. 15. It is also admitted fact that no independent witness was joined by the Food Inspector at the time of taking sample. He (PW3) stated that although 2/3 persons were present in the shop, but they did not disclose their identity and denied to become witness. Significantly, PW4 Dila Ram, Peon, who was accompanying the Food Inspector categorically admitted that some more persons kept on coming and going to the shop when the process of sampling was going on, but the Food Inspector did not ask any of them to become a witness of the proceedings, on this aspect of the matter Food Inspector did not utter even a single word. Thus, there is only the testimony of Food Inspector and his peon which is contradictory to each other. 16. Although it is a settled law that the testimony of the official witness cannot be discarded outright yet at the same time the Food Inspector should also give a cogent explanation for non-inclusion of the independent witness based upon sound 6 and convincing reasoning. He did not mention that some more persons also came there and he also did ask these persons to become a witness. Thus, two views are deducible from the above evidence, one of which is that some more persons also came there, who were not asked by the Food Inspector to witness the sampling process. In my considered opinion this omission is fatal in view of the specific defence raised by the respondent that he had informed the Food Inspector that the salt in question was not for human consumption and it was meant for the use of the animals. To probablise the defence, the respondent had given the suggestion to this effect to the Food Inspector and also the peon though denied by them. Respondent explained this fact in his statement recorded under Section 313 and also examined DW1 Lekh Ram. He stated that the respondent had been keeping the salt for the use of animals in his shop, he also had the occasion to purchase salt for animals from him 2/3 times. Further, Food Inspector also admitted that the respondent had also kept powder-salt packets (iodized salt) for sale in his shop the price of which was much higher than the common other salt which was purchased by him. Therefore, against the above factual background, failure to join the independent witness despite its availability assumes significance in this case, non-inclusion of which, renders the case of the prosecution highly suspicious. 17. Therefore, in these circumstances, the conclusion arrived at by the learned Sessions Judge that the salt in question was meant for the animal consumption and not for human consumption is reasonable and borne out from the 7 record, thus requires no interference. As such, the appeal is without any merit. Hence, dismissed. (Surinder Singh), J. May 15, 2010 (vs)