IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.Appeal No.595 of 2000 Reserved on:05.12.2007. Decided on:January 02, 2008. State of H.P. …Appellant. VERSUS Bir Singh ….Respondent. Coram The Hon’ble Mr.Justice Kuldip Singh, Judge. Whether approved for reporting?1 No For the Appellant: Mr P.M.Negi, Deputy A.G. For the respondent: Mr Sanjay Jaswal, Advocate. Kuldip Singh, Judge The State has filed this appeal against the judgment dated 8.3.2000 passed by learned Additional Sessions Judge(I), Kangra at Dharamshala (Camp at Una) in Criminal Appeal No.16/93 (18/94) setting aside the conviction of respondent under Section 16(1-A) (i) of the Prevention of Food Adulteration Act, 1954 (hereinafter referred to as ‘the Act’) recorded by learned Judicial Magistrate 1st Class (1), Amb on 30.3.1993 in case No.43/1/90. 2. The prosecution case, in brief, is that on 10.11.1989 at about 3.35 P.M. PW-1 K.P.Garg, Food Inspector, after giving notice, purchased 450 grams turmeric powder on payment of Rs.7.50 from Whether the reporters of the local papers maybe allowed to see the judgment? Yes …2… the shop of respondent at village Panjawar in presence of PW-2 Jagir Singh. The turmeric powder so purchased was divided into three parts and put in three cleaned and dried bottles which were properly corked and sealed. The Food Inspector prepared the memorandum which was signed by respondent. One part of the sample was sent to public Analyst along with Form VII through registered post, another Form VII along with specimen seal impression was separately sent to public Analyst under registered post. On receipt of report of the public Analyst, the sample was found adulterated containing rice starch and Mentanil – yellow, a non-permitted acid coaltar dye of yellow shade as an admixture which is prohibited under Rule 44(h) of Prevention of Food Adulteration Rules, 1955. The Chief Medical Officer gave his written consent for prosecution of respondent. On this respondent was prosecuted and notice under Section 13(2) of the Act was issued to him. 3. The respondent put in appearance, notice of accusation was put to him to which he pleaded not guilty and claimed trial. The prosecution examined three witnesses, the respondent was examined under Section 313 Cr.P.C., he pleaded his innocence. The learned trial Magistrate convicted and sentenced the respondent on 30.3.1993 under Section 16(1-A)(i) of the Act for one year imprisonment and fine of Rs.2000, in default of payment of fine the respondent was directed to undergo rigorous imprisonment for six months. The respondent filed appeal against the decision dated 30.3.1999 which was allowed by learned Additional Sessions Judge, …3… Una on 15.7.1994. The State filed Criminal Appeal No.112/95 against the decision dated 15.7.1994 which was allowed by learned Single Judge of this Court on 9.12.1998 and the case was remanded to learned Additional Sessions Judge for disposal in accordance with law. The learned Additional Sessions Judge after remand allowed the appeal on 8.3.2000. Hence, this appeal by the State. 4. I have heard learned Deputy Advocate General for the State, Mr.Sanjay Jaswal, learned counsel for the respondent and gone through the record. It has been submitted on behalf of the State that learned Additional Sessions Judge has erred in accepting the appeal and acquitting the respondent. It has been proved on record that sample of turmeric powder was taken from respondent which was found adulterated. The Chief Medical Officer gave his written consent for prosecuting the respondent. The learned Additional Sessions Judge has misinterpreted the material on record and acquitted the respondent on the ground that sample was not taken from the respondent and consent to prosecute the respondent is also not proper. The learned counsel for the respondent has supported the impugned judgment. 5. The learned Additional Sessions Judge has acquitted the respondent on the ground that the sample was not taken by the Food Inspector from the respondent and at the time of taking of the sample, the wife of the respondent was present in the shop. The learned Additional Sessions Judge has also found defect in the sanction / …4… consent which was given by the Chief Medical Officer for prosecuting the respondent. 6. PW-1 K.P.Garg, Food Inspector, has stated that he purchased 450 grams turmeric powder on payment of Rs.7.50 from respondent after giving notice and prepared memo Ext.P-4 which was signed by respondent and the witness. On analysis the sample was found to be adulterated. The Chief Medical Officer vide Ext.P-12 gave his sanction / consent to prosecute the respondent. He identified the signatures of Chief Medical Officer who has died. In cross examination, he has denied that wife of the respondent told him that she only sells tea and not other articles. He has also denied that the turmeric powder was not kept for sale. He has also denied that respondent came there later on and he obtained the signatures of respondent. 7. PW-2 Jagir Singh has stated that respondent has tea shop at Panjawar. The respondent was not present there, his wife was there. He did not support the prosecution case and was declared hostile. In cross examination, conducted on behalf of the Food Inspector, he has stated that wife of the respondent was preparing tea and the Food Inspector completed the proceedings in 15 minutes. The respondent was not present at the time of taking sample. In cross examination, conducted on behalf of the respondent, he has stated that respondent has residential room with the shop. The respondent came there after half an hour and when he came he had altercation …5… with the Food Inspector. The respondent told that the turmeric is not meant for sale and was kept only for animals. 8. A perusal of Panchnama Ext.P-4 would show that it is signed by Food Inspector as well as by respondent and Jagir Singh. The sample was allegedly taken on 10.11.1989 at about 3.35 P.M. The case of the respondent, right from the very beginning, is that the respondent was not present in the shop at the time of taking the sample, rather wife of respondent was present. It is not the case of the prosecution that sample was taken from the shop of the respondent from the servant, salesman or representative of the respondent who was in control of the shop at the time of taking the sample. The positive case of the prosecution is that the sample of turmeric was taken from the shop of respondent from respondent himself and none else. It is also the case of the prosecution that PW- 2 Jagir Singh was present at the time of taking the sample. PW-2 Jagir Singh has specifically stated that respondent was not present in the shop when the sample was taken. The respondent came there after about half an hour and he had altercation with the Food Inspector. The statement of PW-1 K.P.Garg Food Inspector regarding taking of sample from the respondent has not been supported by PW-2 Jagir Singh independent witness who has stated that respondent was not present in the shop at the time of taking of the sample. In Public Health Department through Food Inspector, Mandi and another Versus Jiwan Lal, 1990(1) SLJ 231, a learned …6… Single Judge of this Court, after noticing State of M.P. versus Ranchod,1985 (II) FAC 226, in Para-6 has held as follows:- “The net result of the aforesaid discussion is that there are two versions of the case – one stated by Shri B.C.Sharma (PW-3), Food Inspector, and the other by Shri Vijay Kumar (PW-1). The version of Shri Vijay Kumar (PW-1) is nearer to the version and explanation of the accused. In such a situation, the result is obvious. Failure of the prosecution is evident. The result is, therefore, obvious and as a result of this discussion, the accused succeeds and the appeal fails.” In the present case also, the independent witness has not supported the Food Inspector, rather his statement is contrary to the statement of Food Inspector regarding the taking of the sample. He has specifically stated that respondent was not present in the shop when the sample was taken from the wife of the respondent. It is not the case of the prosecution that at the time of taking of sample the wife of the respondent was the representative of the respondent for selling the articles from the shop. The acquittal of the respondent recorded by the learned Additional Sessions Judge is sustained on this point, therefore, it is not necessary to go into the question of validity of sanction / consent granted by the Chief Medical officer for prosecuting the respondent. The learned Additional Sessions Judge from the material on record has taken a possible view, in appeal this Court will not substitute its opinion, if view, taken by learned Addl.Sessions Judge emerges from the evidence on record. …7… 9. The result of the above discussion, the appeal fails and is accordingly dismissed. Bail bonds, furnished by the respondent, are discharged. January 02, 2008. ( Kuldip Singh ), J. 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