IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Cr. Revision No. 206 of 2002 Reserved on 21. 4. 2009 Date of decision: 8 .5. 2009 Harpratap Singh …..Petitioners Versus State of H.P. ……Respondent Coram: The Hon’ble Mr.Justice Surinder Singh, J. Whether approved for reporting ?1 . Yes For the petitioner: Mr. Ajay Sharma, Advocate. For the respondent : Mr. J.S. Guleria, Assistant Advocate General. Surinder Singh, J. The present criminal revision petition has been directed by the convict-petitioner against the concurrent findings of guilt arrived against him by the courts below for the offence punishable Under Section 16 (1) (a) (1) and Section 16 (1) (A) of the Prevention of Food Adulteration Act 1954 ( hereinafter referred to as the ‘Act’), for which he was sentenced to undergo imprisonment for a period of six months and to pay a fine of Rs. 1000/- for the offence under Section 16 (1) (a) (i) of the Act and for one year and to pay a fine of Rs. 2000/- for the offence punishable under Section 16 (1) (A) of the Act. 1 Whether the reporters of Local Papers may be allowed to see the judgment ?. yes. - 2 - In short, the prosecution case is that in the year 1992, petitioner was running a shop in village upper-Dadh Tehsil Palampur wherein, inter alia he had kept ‘mirchi powder’ for sale to the general public. On 19.5.1992 at about 3 p.m., PW- 3 Food Inspector Sh. S.C. Sharma inspected his shop and gave him notice Ext. CW-3/B and purchased six sealed packet of 100 gms each of mirchi powder having identical label of S.M.C. from his shop for analysis in the presence of PW-1 Ajeet Kumar witness. The payment of the said article was made to the petitioner and receipt Ext. CW-3/A was obtained. The samples were sealed as per law and marked with the code as Code No. KR-1 and Sr. No. 3499. One sample of packet along with Form No. VII, copy of the same is Ext. CW-3/D in a sealed packet was sent through registered parcel to Public Analyst by Food Inspector, postal receipt of the same is Ext. CW-3/E. Both carried part of the signatures fastened and sealed each of the samples as required under Rule 16 of the Rules framed under the Act. Panchnama Ext. CW-3/C prepared which was read over to the witnesses present in token of correctness. The petitioner obtained his signatures in presence of the witness and the witnesses aforesaid also signed the said memo. Thereafter, sealed packet was sent - 3 - through registered parcel to the Public Analyst and Form No. VII along with specimen seal impression through registered parcel was sent separately to the Public Analyst. The remaining packets, along with two copies of form No. VII were deposited with the Local Health Authority, Kangra at Dharamshala. The Food Inspector received the report of the Public Analyst Ext. CW-3/J through the Local (Health) Authority along with memo showing that “mirchi powder” sold by the appellant was adulterated and mis-branded as it contained non- permitted oil-soluble coaltar dye of red shade as an admixture whereas chillies powder should be free from added colouring matter. Further, the mirchi packets were found to have not labeled in accordance with the provision of Rules 32 of the Prevention of Food Adulteration Rules, 1955, as batch, lot and Code number of the product was not given thereon. The Local (Health) Authority had sent the notice along with notice of the Public Analyst under Section 13 (2) of the Act on the address of the petitioner, the postal receipt was place on record. Vide Ext. CW-3/L, the said Food Inspector applied for sanction to prosecute the petitioner. - 4 - After perusing the record, sanction Ext. CW-3/M was accorded by the Chief Medical Officer, Kangra. Thus the prosecution was launched against the petitioner. The petitioner was summoned as an accused. Pre-charge evidence was led. Finding a prima –facie case against him, he was charge- sheeted for the offences aforesaid, to which he pleaded not guilty and claimed trial. Thereafter, the petitioner moved an application under Section 20-A of the Act for impleading supplier and manufacture as party on the basis of bill Mark A-1, which was dismissed. The evidence was led, the witnesses of the complainant were cross-examined. The petitioner was examined under Section 313 of the Code of Criminal Procedure. He denied the prosecution case in toto and did not lead any evidence in defence. At the end of the trial, he was convicted and sentenced, as aforesaid, to which he unsuccessfully assailed in appeal before the Court of Sessions. Now, against the concurrent findings of facts, the present revision petition has been preferred on the ground that his application under Section 20-A was wrongly dismissed. The appellant was deprived of exercising his valuable right - 5 - conferred under Section 13 (2) of the Act and further that there has been violation of the provisions of Section 10 (7) of the Act as no independent witness who could support the case of the prosecution, was associated. Learned counsel for the petitioner elaborated the above points and put his reliance on the judgment of the Supreme Court in Babu Lal Hargovindas vs. The State of Gujarat 1971 (1) SCC 767, Shri Ram Labhaya vs. Municipal Corporation of Delhi and another (1974) 4 SCC 491 and also of the Single Judge of this Court in Ved Parkash vs. State of H.P. 1998 (1) SLC 392. On the other hand, Shri J.S. Guleria, learned Assistant Advocate General has supported the judgment of conviction and sentence passed by the learned trial court and its affirmation in appeal. To appreciate the rival contentions, I have carefully gone through the evidence on record and also the law cited by the learned counsel for the petitioner. CW-3 Shri S.C. Sharma, Food Inspector has supported his case in toto. He categorically stated that he had joined the independent witness Shri Ajeet Kumar CW-2 at the time when the sample was picked up from the shop of the petitioner. Although CW-2 Ajeet Kumar did not - 6 - support the case of the prosecution but it is significant to note that he admitted his signatures on Form No. VI Ext. CW-3/B. The notice which was given to the petitioner by the Food Inspector expressing his intention to take the sample of S.M.C. “mirchi powder” from his shop even on that he admitted his signatures including the spot memo Ext. CW-3/C. In cross-examination, he categorically stated that he signed the aforesaid documents while sitting on a Bench of the shop of the petitioner. In Babu Lal Hargovindas’s case (supra) aforesaid the apex Court held that it is not a rule of law that the evidence of the Food Inspector cannot be accepted without corroboration. He is not an accomplice nor is he similar to an attesting witness to a will. The evidence of the Food Inspector alone if believed can be relied upon for proving that the samples were taken as required by law. The circumstances of each case will determine the extent of the weight to be given to the evidence of the Food Inspector and what in the opinion of the Court is the value of his testimony. The provisions of Section 10 (7) are akin to those under Section 103 of the Criminal Procedure Code when the premises of a citizen are searched by the Police. In Ram Lubhaya’s case (supra) the Supreme Court also held that taking sample under any of - 7 - the provisions mentioned in sub Section (7) of Section 10 of the Act, the Food Inspector must call one or more independent persons to be present at the time when such action is taken. However, regardless of all circumstances, the non-presence of one or more independent persons at the relevant time would not vitiate the trial or conviction. The obligation which Section 10 (7) casts on the Food Inspector is to “call” one or more persons to be present when he takes action. Where the Food Inspector did call the neighbour shopkeepers to witness the taking of the sample but none was willing to cooperate, he could not certainly compel their presence. In such circumstances, the prosecution was relieved of its obligation to cite independent witnesses. The above cases cited by the learned counsel for the appellant are of no help to him because in the instant case, it was not a case where the Food Inspector did not join the independent witnesses at the time of sampling. The matter would have been different had he not joined PW-2 aforesaid as an independent witness but even then the statement of the Food Inspector could not have been thrown out over-board altogether from consideration but if found worth inspiring confidence could be acted upon. But here it is a case where the Food Inspector had joined CW-2 Ajeet Kumar a co- - 8 - villager of the petitioner and he admitted his signatures on Form No. VII and also on the spot memo as discussed above. But he failed to explain as to why he signed those memos, more particularly when he was an educated person and if no such procedure was adopted by the Food Inspector at the spot, he could have refused to sign or would have complained to the higher authorities but he did not raise even a voice against it, rather signed the documents and admitted his signatures during the trial and did not give any explanation what was the reason to sign the said documents. It is easy enough to understand that he being the co- villager might have felt bound by the social tie and fraternity it could be countenanced that he has a reason to resile to secure acquittal of the petitioner. Thus, the petitioner could derive no support from the above cited law laid by the apex Court and it is held that in this case there is a sufficient compliance of the provisions of Section 10 (7) of the Act. Further CW-3, Shri S.C. Sharma, Food Inspector further stated that after joining the independent witness, he purchased six packets of ‘S.M.C. mirchi’ powder for Rs. 39/- and obtained the receipt Ext. CW-3/A before that he had given the notice Ext. CW-3/B to the petitioner expressing his intention to purchase the said - 9 - sample for analysis and took the sample in accordance with law, which has not been assailed. One sample packet along with form No. VII, copy whereof is Ext. CW-3/D were sent separately through registered post to the public Analyst. He proved the postal receipt Ext. CW-3/E to this effect. The sample was sealed separately sent by post. The receipt thereof is Ext. CW-3/G. Rest of the samples along with two copies of Form No. VII duly sealed were deposited with the Local Health Authority, receipt whereof is Ext. CW-3/H. The report of the Public Analyst Ext. CW-3/J revealed that it was a case of adulteration and mis-branding. Food Inspector stated that the report of the Public Analyst along with complete paper with his application Ext. CW-3/M for written consent, which was received by him and he launched the prosecution against the petitioner. CW-1 Vinod Kumar, the Dealing Assistant from the Office of L.H. A Dharamshala was also examined. He, inter alia testified on oath that he had complied with theprovision of Section 13- (2) of the Act by sending a notice Ext. CW-1/B along with the report of the Public Analyst was also sent by registered post, the postal receipt of which is Ext. CW-1/C and according to him whatever address was written on the letter aforesaid, was written down by him on the envelop of the Registry. But however, it was not having - 10 - acknowledgement due but the registered letter so sent on 5.9.1992 (Ext. CW-3/H) was never returned undelivered to his office. The notice Ext. CW-1/B contain the address of the appellant as under:- “Harpratap Singh S/o Lachhman Singh Prop. Sandeep Karyana Store, village Upper Dadh Tehsil Palampur” The postal receipt Ext. CW-1/C bears the address: “Harpratap Singh Upper Dadh Tehsil Palampur” According to Vinod Kumar (CW-1) he had mentioned the complete address on the envelop sent by Registered Post as written in Ext. CW-1/B above. Thus, in the above circumstances when the registered letter was not returned undelivered, the presumption of its service arises to which the petitioner has failed to rebut. Therefore, in these circumstances, it cannot be said that there was a non compliance of Section 13 (2) of the Act. The third contention of the learned counsel for the petitioner that his application under Section 20-A was wrongly dismissed is also devoid of any force. Vide his application, he sought to implead M/s Prinka Traders, Damtal District Kangra on the basis of bill dated 1.3.1992 over which there is an over writing on - 11 - the date and even this bill also did not disclose that the petitioner had purchased ‘S.M.C. Mirchi’ powder from them as indicated in the notice (Ext. CW-3/B) given to the petitioner before taking the sample. Further the application for impleadment also did not contain the essential ingredients of Section 20-A of the Act. Therefore, in my opinion, there was no error in dismissing the application by the trial court which could cause any prejudice to the case of the appellant. The net result of the above discussion is that the petitioner had sold ‘S.M.C. mirchi powder’ to the Food Inspector for analysis which is a “sale” within the meaning of Section 2 (xiii) of the Act. Thus in these circumstances, in my opinion, for the reasons aforesaid, I do not find that judgment of conviction and sentence passed by the learned trial court as affirmed in appeal is wrong and unjust. Accordingly, the present revision petition sans merit and is consequently dismissed. The petitioner is hereby directed to surrender before the learned trial court within one month from today to serve out the sentence, failing which, the trial court shall take appropriate steps to execute the sentence passed by it, in accordance with law. Send down the record. May 8, 2009 (Surinder Singh),J. (cm)