IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Cr. Appeal No. 415/2004 Date of decision: 5.8.2011 State of H.P. …..Appellant Versus Subhash Chand ……Respondent Coram: The Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting ?1 . yes For the Appellant: Mr. P.M. Negi, Dy. Advocate General. For the respondent : Mr. Subhash Punshi, Advocate. Surinder Singh, Judge. (Oral) The appellant hereinafter referred to as the ‘accused’ was prosecuted for the offence punishable under Section 16 (1) (a) (i) of the Prevention of Food Adulteration Act, 1954 in short ‘the Act’ for allegedly selling mis-branded and adulterated sample of ‘kisan vanaspati’. 2. In short, prosecution case can be stated thus. On 23.11.1999 at about 1 p.m., PW1 Bavita Tandon, Food Inspector, Hamirpur intercepted the shop of the accused in the presence of PW3 Kishori 1 Whether the reporters of Local Papers may be allowed to see the judgment ?. yes - 2 - Lal and found in possession of 15x 4.49 gms. of ‘kisan vanaspati’ kept in a card-board box in originally sealed packets of 4.49 gms. each along with some other articles of food, for sale to the general public for human consumption. The Food Inspector requested several other persons to be witness, but all of them refused except Kishori Lal. Thus, the Food Inspector served a notice Ext. P1, to pick-up the sample of ‘kisan vanaspati’ to the accused and purchased three packets of ‘kisan vanaspati’ against payment of ` 66/- vide receipt Ext. P2. The accused as also the witness aforesaid signed the said document. Purchased quantity was properly labeled and wrapped in a thick paper as per rules with the slip of LHA and each part was got signed by the accused as well as by the witness. The punchnama of the entire proceedings was prepared on the spot, read over to the accused and witness. They admitted it to be correct and in token thereof they appended their signatures. 3. One part of the sample along with form No. VII Ext. P4 was sent for analysis to the Public Analyst, Kandaghat in a sealed packet by registered parcel vide postal receipt Ext. P5. Form No. VII along with seal impression was also sent to the - 3 - public analyst separately vide postal receipt Ext. P6. Remaining two parts of the samples along with two copies of the form No. VII were deposited with LHA, Hamirpur. On analysis, the public analyst issued the report Ext. P8, the relevant portion is extracted as below:- “……The batch number and month and year of manufacture or packing have not been mentioned on the label. The contents of sample give negative baudouin test for sesame oil whereas it should be positive. The vanaspati should contain sesame oil in sufficient quantity to produce at least 2 red unit on a lovibond scale as tested by the prescribed procedure. The sample is, therefore, misbranded and adulterated.” 4. The Food Inspector applied for sanction to launch the prosecution to the Chief Medical Officer concerned who, on consideration of the documents Ext. P1 to Ext. P10 accorded the sanction Ext. P11 to prosecute the accused. Notice under Section 13 (2) of the Act was sent along with report of analyst to the accused by registered post. The postal receipt is Ext. PW2/B. 5. The accused was summoned and the notice of accusation was put to him but subsequently he moved an application to get the - 4 - second part of the sample analyzed from the Director, Central Food Laboratory which was allowed by the learned trial Court vide order dated 10.7.2000 which reads as under:- “10.7.2000 Present: Mis Bhabita Tandon, F.I. for the State. Accused with Sh. Mast Ram, Advocate. Sh. Daljit Singh, Dealing Assistant in the office of LHA, Hamirpur has produced the second part of the sample in the court. The same is ordered to be sent to Central Food Laboratory, Pune under registered cover along with the necessary memorandum. I have tallied the seal impression on the part of the sample produced in the Court by Sh. Daljit Singh. The same tallies with the seal impression as given in memo –VI. The seals are intact. Even it bears code No. 48 and Sr. No. 17/99 of LHA Hamirpur. Now the report of Central Food Laboratory, Pune be awaited for 29th August, 2000.” 6. The certificate of test of analysis by the Central Food Laboratory bearing No. CFL/205/1045/2k dated 28.7.2000 was received and in the opinion of the Director, Central Food Laboratory, the sample did not confirm to the standard of vanaspati as per PFA Rules, 1955 and also it contravenes rule 32 (e) and (f) of the PFA Rules, 1955. - 5 - 7. On consideration of the matter, the learned trial Court noticed that the procedure, as prescribed under Section 13 (2) (B) of the Act read with Rule 4 sub rule (1) to (3) of PFA Rules, 1955 for sending second part of the sample to the Director, Central Food Laboratory was not adhered to. Therefore, the complaint was dismissed, consequently the accused was acquitted. 8. Shri P.M. Negi, learned Deputy Advocate General vehemently argued that on the request of the accused, the second part of the sample was produced in tact before the learned trial Court and it was sent to the Director Central Food Laboratory, completing all the codal formalities required under the law. The Central Food Laboratory also stated that the sample in question was fit for analysis as well as was found in tact, proper and also the subsequent seal impression received separately from the Court tallied with the sample parcel. The report stands fully connected. The learned trial court wrongly acquitted the accused, therefore, the acquittal of the accused deserves to be set aside and the accused be accordingly convicted. 9. Shri Subhash Punshi, learned counsel for the accused supported the impugned judgment of - 6 - acquittal and while doing so, referred provisions of the Act and oral as well as documentary evidence on record. 10. It is settled position of law that an accused is entitled under sub-section (2) of Section 13 to prove his innocence by getting the sample analyzed from the Central Food Laboratory which precedes the report of the public analyst, for assuring fair trial. In the present case, the service of notice by accused has been denied. The prosecution has proved it by leading cogent evidence that it was sent along with the public analyst report on his address. To substantiate the point, the postal receipt has also been placed and proved on record. Further, the respondent also exercised his right by applying to the Court for getting the second part of the sample analyzed and his request was allowed vide order dated 10.7.2000, (supra). 11. “ Section 13(2-B) of the Act reads as follows : "On receipt of the part or parts of the sample from the Local (Health) Authority under sub-section (2-A), the Court shall first ascertain that the mark and seal or fastening as provided in Cl. (b) of sub-sec. (1) of S. 11 are intact and the signature or thumb impression as the case may be, is not tampered with, and despatch the part or, as the case may be, one of the parts of the sample under its own seal to the Director of the Central Food Laboratory who shall thereupon - 7 - send a certificate to the Court in the prescribed form within one month from the date of receipt of the part of the sample specifying the result of the analysis. [emphasis supplied] Whereas Sub-Rules (1)(a), (2) and (3) of Rule 4 of the Rules reads as under:- (1)(a) Sample of food for analysis under sub-sec. (2) of S. 13 of the Act shall be sent either through a messenger or by registered post in a sealed packet, enclosed together with a memorandum in Form I in an outer cover addressed to the Director. (2) The container as well as the outer covering of the packet shall be marked with a distinguishing number. (3) A copy of the memorandum and a specimen impression of the seal, used to sell the container and the cover shall be sent separately by registered post to the Director. [emphasis mine] A bare reading of sub-sec. (2-B) of S. 13 makes it clear that when the requisitioned part(s) of the sample are received by the Court, it will examine such part(s) to ascertain: (a) that the mark, seal and fastening as provided in clause (h) of sub-sec. (1) of S. 11 of the Act are intact, and (b) that the signature/thumb marks of the accused/witness appended to the part(s) of the sample are not tampered with. On being satisfied that the mark, seal and fastening of the sample are intact and signatures/thumb marks thereon are not tampered with, the Court will despatch one part of the sample to the Director, Central Food Laboratory for analysis in the following manner : - 8 - (i) the sample part shall be despatched by the Court under its seal, (ii) the sample shall be sent either through a messenger or by registered post in a sealed packet and a memorandum in Form I shall be endorsed therewith in an outer cover addressed to the Director, Central Food Laboratory; (iii) The container of the sample and the outer cover of the packet shall be marked with a distinguishing number, and (iv) a copy of the memorandum and a specimen impression of the seal used to seal the container and the cover shall be sent to the Director separately by registered post. 12. Be it stated that in the order dated 10.7.2000, supra the learned trial Court ascertained the seal impression on the part of the sample produced before it by Shri Daljeet Singh Dealing Assistant of the office of LHA, the same tallied with impression as given in the memo Ext. PW7. The seals were in tact. It contained Code No. 48 and Sr. No. 17/99 of LHA But he did not put his own mark on the sample and there is no order that the same be sent to the Central Food Laboratory for its analysis. This part in the order is missing. But however, there is an order that report be awaited. Report was also received but there is nothing on record to show that the learned trial Court affixed its own seal on the - 9 - part of the sample allegedly sent to the Director, as required under Section 13 (2) (B) of the Act referred above. 13. Further, there is also nothing on the record to show that the container and the outer covering of the packet were marked with a distinguishing number as per the requirement (iii) supra (Rule 4(2)). This requirement is to ensure identity of the sample. No doubt the code number of the sample appears to have been mentioned as such mark in the order aforesaid but in the letter addressed to the Director nothing has been mentioned, even no independent mark, a mark other than the code number of sample has been put on the container and the outer cover. A perusal of Rule 15 reveals that such number is required to be given by the Food Inspector on the label of the sample. The distinguishing mark contemplated by Rule 4(2) is independent of such number. Thus no independent distinguishing mark as contemplated under Rule 4(2) was put on the container and outer covering. Therefore, there has been clear-cut non- compliance of the requirement (iii) supra (Rule 4(2). 14. In State of H.P. versus Satpal Soga [2000 Cr.L.J. 3274] on which the learned trial Court also put - 10 - reliance, the Coordinate Bench of this Court also dealt with the almost similar situation and while noting the above provisions held that there was a non-compliance thereof, which renders the prosecution case doubtful. 15. The learned Deputy Advocate General brought to my notice that this requirement stands fulfilled by memo dated 10.7.2000, addressed by the learned trial Court to the Director, Central Food Laboratory. But the perusal thereof shows that against Sr. No. 1 in the memorandum whereby the distinguishing number of the container is written is inserted in hand in red ink and “seal impression seal IMP” has been mentioned in blue ink which are neither initialed nor signed by the Officer sending the said communication to the Director, Central Food Laboratory. It is also not known whether it was there in the original letter so sent. 16. As already noted above, there is no order of sending the parcel along with the memo and distinctive mark of the Court. All these facts were required to be mentioned in the order, in order to obviate any discrepancy in the procedure and miscarriage of justice caused to the accused. - 11 - 17. Therefore, in my considered opinion, the accused deserves to be acquitted by giving benefit of doubt. Consequently, the appeal fails and is accordingly dismissed. 18. The respondent is discharged of his bail bonds entered upon by him at any stage during the trial of this case. August 5, 2011 (Surinder Singh), (cm) Judge