IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 135 of 2004. Judgment reserved on : 23.11.2010. Decided on: December 14, 2010. _____________________________________________________ State of H.P. ……..Appellant. Versus Om Parkash. …… Respondent. Coram Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting1? Yes. For the appellant : Mr. A.K.Bansal, Addl. Advocate General. For the respondent : Mr. Balwant Kukreja, Advocate. ____________________________________________________________ SURINDER SINGH, J: 1. In criminal Case No.392 of 2003/99, decided on 29.11.2004, respondent was acquitted for the offence punishable under Section 16(1)(a)(i) of Prevention of Food Adulteration Act, 1954, in short ‘the Act’. His acquittal has been challenged by the State in this appeal. 2. The respondent, in short, was put on trial on the allegations that on 7.8.1999, PW2 L.D. Thakur, Food Inspector intercepted shop No.3 of the respondent in the ‘Egg Market’, Shimla. He was found in Whether reporters of the Local papers are allowed to see the judgment? - 2 - possession of 15 Kgs. of Cheese (Paneer), some in the open trays and remaining in the Freeze, which was exhibited for sale to the general public. (ii) After disclosing his identity, the Food Inspector purchased 600 grams of Cheese for the purpose of analyses and paid its price Rs.45/- vide receipt Ex.P2. (iii) The Cheese so purchased was mixed thoroughly and put into three clean and dry bottles and 18 drops of formalin were also added in each bottle as preservative. (iv) All the three bottles were labled, fastened and completely wrapped in a strong thick paper and a paper slip issued by the Local (Health) Authority, Municipal Corporation, Shimla, bearing No. S-II/2376 was pasted around the samples of bottles from top to bottom and was duly sealed. (v) Panchnama Ex.P3 was allegedly prepared in the presence of witnesses Arun Goel (PW4) and Charan Dass (PW3) on the spot, which was signed by the respondent. His signatures were taken in such a manner that it - 3 - covered the paper slip and the wrapper both, as required under Rule 16 of the Rules framed under the Act. (vi) The Food Inspector is alleged to have read over and explained the entire process to the respondent in the presence of the witnesses during the course of sampling and attesting this memo. (vii) One part of the sample alongwith memo form No.VII Ex.P4 was sealed in a packet and sent to the Public Analyst, Kandaghat. Its copy and the impression of seal were sent in a separate packet to the said Analyst, through PW Charan Dass, Peon. (viii) The sample was analyzed. As per report Ex.P8, the Public Analyst opined: “the milk fat content is 35.11% against the minimum prescribed standard of 50%. The sample of Paneer is, therefore, adulterated.” 3. Since the Food Inspector was authorized by the Government of Himachal Pradesh vide Notification No.HFW-B(A)2-1/82/11 dated 1.7.99 to institute prosecution against the persons committing the offence under the Act, as such, the complaint - 4 - Ex.P10 was filed against the respondent in the learned trial Court and a notice under Section 13(2) of the Act was sent to the respondent. 4. Respondent put in appearance. Notice of Accusation was put to him to which he pleaded not guilty and claimed trial. 5. Besides examining himself, the Food Inspector also examined PW1 R.D. Sharma, Dealing Assistant of the Local (Health) Authority, Municipal Corporation, Shimla to prove sending of notice under Section 13(2) of the Act and PW3 Charan Dass and the alleged independent witness Arun Goel (PW4) another vendor of milk products nearby to prove sampling etc. 6. Respondent was also examined under Section 313 of the Code of Criminal Procedure. He denied the allegations. He took up the stand that the sample was not lifted properly as the said article was removed from the Tin by the Peon of the Food Inspector, which was full of water and mashed it with hands in the tray, which was also containing water and then put into bottles alongwith the water in the bottles washed by the Peon of the Food - 5 - Inspector on the spot at that time. However, no evidence in defence was led. 7. The learned trial Court noticed the major contradictions and discrepancies in the statements of the prosecution witnesses with respect to the lifting and sealing of the samples by Charan Dass, Peon of the Food Inspector allegedly on his direction, which fact was denied by PW3 Charan Dass aforesaid and shifted the stand that taking of sample and process of sealing both were performed by the Food Inspector himself and also that the independent witness Arun Goel (PW4) probablised the defence raised. 8. The leaned trial Court thus came to the conclusion that the sample was not properly mixed up and made homogenous in accordance with rules and the Food Inspector did not join the independent witness though available, whereas PW4 Shri Arun Goel, shopkeeper was under his influence, thus, there was no compliance of Section 10(7) of the Act. 9. Shri A.K.Bansal, learned Additional Advocate General led me through the evidence and tried to - 6 - canvas that there was no defect in lifting and sealing the samples. The sample so purchased was made homogenous and sealed in clean and dry bottles in accordance with rules and sent for analysis. Since it did not conform to the requisite standard, thus it was found adulterated and acquittal of the respondent was wrong. 10. Contra, Shri Balwant Kukreja, learned counsel for the respondent supported the impugned judgment of acquittal and elaborated the points of acquittal recorded by the learned trial Court in support. 11. To appreciate the rival contentions, I have critically examined and reappraised the evidence adduced on record. 12. PW2 L.D. Thakur, Food Inspector precisely, stated that after disclosing his identity to the respondent, he purchased 600 grams Paneer for analysis, after serving notice Ex.P1. He did not make any reference of ‘Cheese’ regarding which he gave the notice. He also made its payment vide receipt Ex.P2. Further stated that the purchased Paneer was put on a piece of newspaper and mashed by - 7 - him with his own hands to make it homogenous and it was divided into three equal parts and then put into three clean and dry bottles. 18 drops of formalin as preservative were added in each of the bottles, which were stoppered with the seal as per the procedure mentioned by him in the presence of PW4 Arun Goel and his Peon PW3 Charan Dass and to this effect, he prepared spot memo Ex.P3, which was signed by the respondent. But in his cross- examination, he admitted that this process of sample was done by his Peon (PW3) as per his directions, whereas he was busy in doing the paper work. He also admitted that he did not mention in the memo Ex.P3 that the Paneer was mixed up in his own hands to make it homogenous. In turn, PW3 Charan Dass denied the above material fact disclosed by the Food Inspector with respect to the sampling by him under the supervision of the Food Inspector. 13. Further PW4 Arun Goel himself was running a ‘small shop’ of the milk products nearby, who did not say about mashing of Paneer with the hands by the Food Inspector, but he supported the defence - 8 - of the respondent that the Paneer was taken from the Tin, which was full of water and mashed in a tray containing water and then put it into the bottles, which were cleaned on the spot with the water and this process was done by a person, who on that day when he was examined was not present in the court. It is pertinent to note that the statement of this witness was recorded on 12.3.2003 and the zimini order shows that, complainant/ Food Inspector (Shri L.D. Thakur) was present in the court, whose statement was also recorded, meaning thereby the sampling process was done by somebody else than the Food Inspector present in the Court. 14. Section 10 of the Act apart from enumerating the powers of the Food Inspector, deals with limitations of powers and also prevention of abuse of powers and protection from harassment as a result of whimsical or capricious exercise of powers. The Food Inspector under Clause (a)(i) of the said section has power to take sample of any article of the food from the person selling, conveying, delivering and preparing to deliver it to the purchaser or consignee and sent such sample for - 9 - analysis, but if the article of food is for personal consumption, Food Inspector is not authorized to take sample from the consignee under sub section (1)(c)of the Act. Further the Food Inspector has power to prohibit any sale in the interest of public health, but before doing so the approval of the Local (Health) Authority is essential. He has also powers to enter and inspect any place where any article of food is manufactured or stored for sale or stored for manufacture of any other article of food or where any adulterant is manufactured or kept and may take sample for analysis. But no sample of primary food can be taken if it is not for sale. In all cases sample is taken and the price of sample must be paid. Also the Food Inspector has powers to seize, carry away or keep in the safe custody of vendor any adulterated or misbranded food but sample must be sent for analysis. At the time of exercising aforesaid powers, it is necessary that the Food Inspector should call one or more persons to be present and their signatures should be taken by him. In this way, Section 10 prescribes functions of Food Inspector and its mode. The powers given to - 10 - the Food Inspectors are to check the menace of Food Adulteration but by way of safeguard, there are penal provisions also for abuse of powers if injury is caused without reasonable belief. 15. In the instant case, the Food Inspector (PW2) and his Peon PW3 have contradicted each other with respect to the process of sampling. Importantly the Food Inspector stated in his examination-in-chief that the sampling process was conducted in his presence by his Peon Charan Dass, to which he specifically denied when cross examined which has not been mentioned in the complaint, but was elicited in the cross-examination of the said witness. 16. In fact, the Food Inspectors are trained in taking samples, making it homogenous and packing, process of sampling and sealing. Though the Food Inspector may take the help of the office Peon, but he cannot assign his job in any way entirely to the Peon, who is otherwise not qualified to do so. Even the said Peon did not say that he was well trained in doing the said job or that he did it as per the directions and supervision of the Food Inspector, rather as already stated above, both the - 11 - witnesses have shifted the stand on each other, thus materially contradicted themselves. 17. Further, PW4 Arun Goel gave another story of the sampling and mashing it into the water tray and this witness was neither re-examined on the new facts introduced by him nor the record shows that such a procedure was ever adopted. Thus, the prosecution case about the sampling and making the sample taken homogenous becomes doubtful which infracted Rule 16 of the Rules framed under the Act, which has resulted into the injustice to the respondent. 18. There is another interesting feature in the instant case. Both “Cheese” and “Paneer” are different items under the Act for which different standards have been laid. The Food Inspector was not sure as to what he intended to purchase from the respondent, whether it was Cheese or Paneer. Though when he appeared as a witness before the Court, he stated that he had given notice to purchase Paneer for analysis and he purchased 600 grams Paneer from respondent and made the payment thereof, but the documents which were - 12 - prepared by him on the spot do not spell out that he in fact had purchased the Paneer from the respondent. 19. Notice Ex.P1 mentions taking of the sample of Cheese from the shop of the respondent and he gave the details of the food item as Cheese (Paneer) and the receipt Ex.P2 against which he made the payment of Rs.45/- reveals that he paid the cost of 600 grams of Cheese (Paneer) and then again made the mention of Cheese therein sold to him for analysis, out of the stock possessed by the respondent. The story did not end here, even the spot memo further makes the reference of the Cheese (Paneer) and the report of analysis Ex.P8 also makes the mention that the sample of Cheese (Paneer) was received in the Laboratory on 7.8.99 but the standard for test applied to it was that of ‘Paneer’. Thus, during the trial, Food Inspector deposed about taking the sample of Paneer from the respondent. 20. Item No.A.11.02.06 mentioned in Appendix-B of the Prevention of Food Adulteration Rules, 1955 classify Cheese in various kinds, i.e. ripened Cheese, - 13 - mould ripened Cheese or unripened Cheese or may other sub-varieties of Cheeses mentioned from item No.A.11.02.06.01 to A.11.02.06.18. The Act lays down the standard of different product of Cheese and milk fat on dry basis differently which broadly varies from 39.0 per cent to 48.0 per cent. 21. Whereas item No.A.11.02.05 defines Chhanna or Paneer, which means the product obtained from the cow or buffalo milk or a combination thereof by precipitation with sour milk, lactic acid or citric acid. It shall not contain more than 70.0 per cent, moisture and the milk shall not be less than 50.0 percent of the dry matter (Milk solids may also be used in preparation of this product). Provided that Paneer or Chhanna when sold as low fat Paneer or Chhane, it shall conform to the following requirements:- (i) Moisture - Not more than 70.0 per cent. (ii) Milk Fat - Not more than 15.0 per cent of dry. Provided further that such low fat Paneer/Chhanna shall be sold in sealed package only and shall bear proper label declaration as provided in sub-rule (zzz) (19) of Rule 42. - 14 - 22. Thus, there is marked distinction between Cheese and Chhanna/ Paneer, for each of these items different standards, have been laid in the rules framed under the ‘Act’. 23. The Food Inspector was not sure while taking sample whether he intend to purchase Cheese or Paneer but test and standard applied in the Laboratory was of Paneer but as already stated above, the receipt Ex.P2 talks about the Cheese and the complaint Ex.P10 has been filed as Cheese (Paneer) despite the fact that the Public Analyst report refers to it as Paneer. 24. Therefore, in the above situation, it is very difficult to digest the arguments of the learned Additional Advocate General that the testimony of the prosecution witnesses inspires confidence with respect to the purchase of sample of Paneer and its sampling procedure was correct, whereas it made the entire prosecution version quite dicey, which again has caused a material prejudice to the respondent. 25. The above position apart, also I find that there has been the non-compliance of Section 10(7) of - 15 - the Act by the Food Inspector by including PW4 Arun Goel another vendor as the independent witness, who himself was a petty milk product vendor in the same market, despite the opportunity to the Food Inspector to include other independent person from the busy market to witness the sampling process. Though, the provisions of Section 10(7) of the Act are mandatory, but their non-compliance would not vitiate the trial, if there exists the evidence of proper sampling of the item purchased for analysis and the Food Inspector attempted to secure the presence of the independent witness, but in the instant case, his evidence fails to the requisite quality, nature and standard, as the Food Inspector makes it clear that the other independent witnesses were also available in the market, but did not make any attempt to include them at the time of sampling, thus it is fatal and vitiates trial. 26. Therefore, for the aforesaid reasons, in my opinion, the acquittal of the respondent recorded by the learned trial Court is legally and factually sustainable. The appeal sans merit, as such dismissed. - 16 - 27. The respondent is discharged of his bail bonds entered upon by him during the proceedings of the case. 28. Send down the records. (Surinder Singh), Judge. December 14, 2010. (Pds)