IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Cr. Revision 193 of 2004 Date of Decision 20th April ,2011 ________________________________________________________ Bharat Bhushan ….Petitioner. Versus State of H.P. ….Respondent. ________________________________________________________ Coram The Hon’ble Mr. Justice Dev Darshan Sud, J. Whether approved for reporting?1 ________________________________________________________ For the Petitioner: Ms. Bindiya Sharma, Advocate. For the Respondent: Ms. Shubh Mahajan, Deputy A.G. ______________________________________________________________ Dev Darshan Sud, J (oral) This is the petitioner’s revision against the judgment and sentence of the learned Sessions Judge, Hamirpur affirming the judgment and sentence of the learned Chief Judicial Magistrate convicting the petitioner for offence under Section 16(A)(a)(i) of the Prevention of Food Adulteration Act, 1954. 2. The prosecution case is that on 30.9.1999 at about 6-16 AM the accused was intercepted by the Food Inspector Ms. Babita Tandon within the premises of District Hospital, Hamirpur with about 7 litres of pasteurized toned milk which was being 1 Whether Reporters of Local Papers may be allowed to see the judgment? 2 carried by him in a silver coloured bucket alongwith other eatable articles such as bread etc. The Inspector disclosed her authority and thereafter expressed her desire to take a sample of the food article. According to the complaint, these food articles were to be supplied to the patients who were undergoing treatment in the hospital. The Food Inspector purportedly disclosed her authority and thereafter took sample of milk for analyses which according to the prosecution was adulterated as according to Ext.PW1/G report of the Public Analyst, the milk solids-not-fact content is 7.21% against the minimum prescribed standard of 8.5%. “The sample of sweetened pasteurised toned milk is, therefore, adulterated.” 3. The defence set up by the respondent was that these items were not meant for sale and he was carrying this milk for the son of DW1 Ashok Kumar who was admitted in Thakur Nursing Home. This was rejected by the trial Court on the ground that no suggestion has been given to PW1 Food Inspector to this effect. Secondly the Court notes that there is no explanation as to why the respondent-accused was roaming around the premises of District Hospital, Hamirpur if he was taking the milk to Thakur Nursing Home. 4. In appeal, the learned Sessions Judge has also affirmed this judgment and sentence. The petitioner is now in revision. 5. In order to prove its case, the prosecution examined PW1 Ms. Babita Tandon, Food Inspector, who supports the allegations as made in the complaint and says that she was informed by the petitioner that he has a contract with the 3 hospital, pursuant to which he was supplying foodstuffs to the patients as there was a contract with the hospital authorities. She thereafter proceeds to corroborate the fact that before taking the sample, the milk was stirred with milk measure and after making it homogeneous; it was packed in three dry and clean bottles etc. She says that Madan Lal was the other witness who was present when the sample was taken. This Madan Lal has appeared as PW4, but he does not at all support the case of prosecution and has denied that he was present when the sample was taken. He has been cross examined at length, but nothing material has been elicited from him. 6. The petitioner produced Ashok Kumar as a defence witness DW1 who states that he has very close association with the petitioner who is his “God brother”. He says that his son was admitted in Thakur Nursing Home on 27th September, 1999 for 6/7 days and the petitioner was carrying the milk and food articles for him. In fact he was doing this till his (Ashok Kumar) son remained admitted in hospital. He also says that on 30th September, 1999 the petitioner came to him and informed that he could not bring the milk and other eatable articles because it (milk) was forcibly taken away by the Food Inspector. 7. In his statement under Section 313 Cr.P.C., the petitioner, in reply to question No. 15, says that he was carrying 1Kg. milk to Thakur Nursing Home where a child of his relative was admitted but the milk was forcibly taken away from him. This is in nutshell is the prosectuion case. 4 8. I have heard learned counsel appearing for the petitioner as also the learned Deputy Advocate General. What I find from the case is that it has not been established on record that the petitioner was in fact carrying 7Kg. milk. Although PW1 states that the sample of milk was taken from the petitioner in the presence of PW4 Madan Lal. But this witness does not support this case. DW1 Ashok Kumar has also been totally ignored by the Courts below. His testimony has been considered in a slipshod manner and disbelieved basically on the ground that no such suggestion was given to the Food Inspector. This reasoning cannot be accepted. The case of the prosecution was that the petitioner had stated that he had a contract with the hospital to supply milk and other edible articles/foodstuff to the patients etc. therein. This is in the statement of PW1 Ms. Babita Tandon. I do not find that this fact has been established on record by the prosecution. Then again to repeat, there is no evidence on record to show as to why the testimony of PW4 Madan Lal as also DW1 Ashok Kumar cannot be accepted. Both the Courts below have tried the case in the absence of the import/impact of evidence of both these witnesses. Learned Appellate Court relies upon the judgment of the Supreme Court in Food Inspector vs. G. Satyanarayana AIR 2004 SC 1236 to hold that quality of evidence is to be considered, not the number of witnesses produced. This is the basic law. But in this case both the Courts below have ignored the evidence on record which supports the accused and is consistent with the stand taken by the petitioner in his evidence under Section 313 Cr.P.C. It is also not established on record that the petitioner was in fact carrying 5 7 litres of milk. What were the other edible articles and their quantity has also not been proved. 9. Learned Deputy Advocate General submits that it will not be open to me to re-assess the evidence on record in revision. All that I need to say is that the evidence has not been re-assessed but only that evidence has been taken into consideration which has not been considered by the Courts below. In the facts and circumstances of the case, the judgments of both the Courts below are quashed and set aside and bail bonds furnished by the petitioner are discharged. April 20th , 2011 (Dev Darshan Sud), ms Judge 6