IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Cr. Revision No. 187 of 2004 Date of Decision 23rd March,2011 __________________________________________________________ Kewal Krishan ….Petitioner. Versus State of H.P. ….Respondent. ___________________________________________________________ Coram The Hon’ble Mr. Justice Dev Darshan Sud, J. Whether approved for reporting?1 Yes ___________________________________________________________ For the Petitioners: Mr. Anup Chitkara, Mr. Sunil Awasthi and Ms. Divya Sood, Advocates. For the Respondent: Mr. P.K. Sharma, Addl. A.G. with Ms. Shubh Mahajan, Deputy A.G. __________________________________________________________________ Dev Darshan Sud, J (oral) The petitioner challenges his conviction by the two Courts below sentencing him for offences under Section 16(1-A) and 16(1) (a) (i) of the Prevention of Food Adulteration Act (hereinafter referred to as the Act). The prosecution case was that Food Inspector R.D. Verma PW1 inspected the shop M/s Soni Traders situated at Gandhi Chowk, Ghumarwin in the presence of 1 Whether Reporters of Local Papers may be allowed to see the judgment? Yes 2 PW5 Krishan Lal and PW6 Satish Chand on 31.12.1985 and found 50 Kg. sweets (hard boiled confectionary) in packets of 500 grams each marked as ‘Dimple Sweets’ which were displayed in the shop for sale. He disclosed his identity to the petitioner herein, served a notice in Form-VI upon him and took a sample of said sweets for analysis. He purchased three packets of 500 grams each of the said sweets from accused against payment of ` 12/-. The receipt was prepared on the spot and handed over to the accused. The case further is that the Food Inspector treated each packet as a part of sample and packed, fastened and sealed the each packet after affixing paper slip No. SFD-1, 53 issued by the Local Health Authority, Bilaspur and also obtained the sigtnatures of the accused on each part of the samples. Complaint against the petitioner was lodged on 17.7.1986 after purporting to comply with the provisions of Section 13(2) of the Act. According to the prosecution, analysis of the seized sample disclosed that it was adulterated and mis-branded on three counts: (a) The amount of ash insoluble in dilute hydrochloric acide exceeds the maximum specified limit of 0.2% by weight; (b) The food sample contained an unpermitted colouring matter identified as Phodamine ‘B’ contrary to the provisions of Rule 28 of the Prevention of Food Adulteration Rules, 1955 (hereinafter referred to as the Rules); (c) Batch or Code number either in Hindi or English numericals or alphabetic or in combination as well as the month and year in which the commodity is manufacutred or packed are not specified on the manufacturer’s label contrary 3 to the provisions of Rule 32(e) and (f) of the Rules. The trial Court by its judgment dated 30th December, 1989 sentenced the petitioner to undergo simple imprisonment for six months and to pay a fine of ` 1000/-. 2. Appeal preferred against this judgment was allowed by the learned Sessions Judge, who by his judgment dated 17.6.1995 returned the complaint to the Food Inspector to seek fresh prosectuion sanction in accordance with law. The prosecution case then proceeds that such sanction under Section 20(1) of the Act was infact obtained from the Chief Medical Officer on 30.7.1996 and thereafter the petitioner was asked to face trial for offences. 3. The prosecution has examined six witnesses. In his statement under Section 313 of Cr.P.C., the petitioner contested the correctness of the report submitted by the Director, Central Food Laboratory, Mysore Ext.P11 and stated that he did not own any shop at Ghumarwin. His case was that he alongwith Satish Kumar PW6 were proceeding towards Chandigarh from Nagrota. When they reached Ghumarwin, he went to meet his father-in- law Bansi Lal, who was owner of the shop and is since dead. He was not present at the spot and both the petitioner and PW6 Satish sat in the shop to wait the return of his father-in-law of the petitioner. At this juncture, the Food Inspector entered the shop and threatened the petitioner. He obtained his signatures etc. The sanction accorded by the Chief Medical Officer has also been challenged. 4 4. The trial Court after relying upon the evidence on record proceeded to convict the petitioner for offences as noticed. 5. The petitioner appealed. It was submitted before the learned Appellate Court that there was no valid sanction proved on record to launch prosecution against the petitioner. In order to arrive at this finding, the learned Court relied upon the judgment of trial Court dated 30.12.1989 in Criminal Appeal No. 5 of 1990 to hold that after passing of the judgment, fresh and valid sanction has been obtained. While disposing of the appeal, the learned Sessions Judge had held: “18. It is clear from above discussion that the report differs to the extent that in the Public Analyst Report, it was simply mentioned that a red basic coal tar dye other than prescribed is present in the sample, but it was not specified as to the extent of adulteration or the data. The report of the Director Central Food Laboratory mentions the un-permitted colouring matter identified as Rhodamine ‘B’ which was not mentioned in the report of the Public Analyst. Moreover, in the report of the Public Analyst, it was mentioned that address given on the package is fictitious, whereas in the report of the Director, Central Food Laboratory, it was mentioned that the batch No. or Code No. and the month and the year in which the commodity is manufactured or packed are not specified on the manufacturer’s label contrary to the provisions of Rule 32 (e) and (f) of PFA Rules, 1955.This part of the report of the Director, Central Food Laboratory specified in ‘C’ was never the basis of the case as per the report of the Public Analyst and it was a new thing which had come up in the report of the Director, Central Food Laboratory. The report of 5 the Director, Central Food Laboratory supersedes the report of the Public Analyst, but this report was never the basis of the sanction granted by the Chief Medical Officer, under Section 20 of the Act. 19. The net result of the above discussion is that the specie of the report differs in the two reports and, as such, in view of the above decisions, fresh sanction is required and as such in view of the above decisions, the complaint has to be returned.” The other points were left open. 6. The learned Appellate Court relied upon the prosecution sanction Ext.P26 which was purportedly scribed by the Chief Medical Officer. The Court then continues to proceed that on documents Ext.P1 to Ext.P23 the word ‘seen’ had been written by the said Officer, which shows the application of mind. 7. The second important point urged before the learned Appellate Court was that the petitioner had submitted a list of witnesses in his defence, but it was closed by the learned trial Court without following the procedure of law. In other words, the petitioner had been subjected to procedure which was unfair. On this point, the learned Appellate Court holds that after the statement of the petitioner herein was recorded under Section 313 Cr.P.C. on 17.2.1999 the case was adjourned to 15.3.1999 for recording evidence of the accused. List of two witnesses namely Parkash Chand and Rafiq had been filed on 1.3.1999 but process was not issued for 15.3.1999 and on 15.3.1999 the case was adjourned for 23.3.1999 for evidence of accused. On that date, witness Parkash Chand was served, but he was not present. The case was therefore adjourned for 3.5.1999. On that 6 date Parkash Chand was served and was present, but the learned counsel for the petitioner was not present on that date and as such statement could not be recorded and the case was accordingly adjourned for 24.5.1999 and a direction was issued to the petitioner to produce his evidence on self responsibility which he failed to do so and therefore his right to lead evidence was closed. The learned Court holds that ample opportunities have been granted to the petitioner and he could not make any grievance on that score. 8. The third point urged by the petitioner was that he was not owner of the shop. He alongwith PW6 Satish Kumar were on their way to Chandigarh. They stopped at the shop of his father-in-law Bansi Lal at Ghumarwin, who was the actual owner of the shop. On that point the learned Court holds that the Food Inspector who appeared as PW1 has stated that the accused was known to him and he was running the shop under the name and style of M/s Soni Traders at Ghumarwin. He relied upon the evidence of PW5 Krishan Lal to substantiate this point. Ignoring the plea of the petitioner that PW6 Satish Kumar had denied the fact that he was in fact owner of the shop, the Court relied upon the decision of this Court in Bansi Lal Sood vs. State of H.P. 1999 F.A.J. 463 to reach this conclusion. 9. The petitioner is now in revision against the conviction passed by two Courts below challenging the legality of the trial on a number of grounds. 10. The first point urged by the learned counsel appearing for the petitioner is that there was no fair trial in accordance with law and that the Court had acted in a hasty 7 manner in closing the right of the petitioner to lead evidence. The order sheet of the trial Court shows that on 17.2.1999 the statement of petitioner was concluded under Section 313 Cr.P.C. and the case was adjourned for defence evidence on 15.3.1999. A note on the side shows that process fee had already been filed, but no order to issue process has been passed. Thereafter, the case was listed on 15.3.1999 when nobody was served for that date and the next date of listing was 23.3.1999 and on that date one of the witnesses was served, but he was not present and again the case was listed for 3.5.1999. On that date i.e. 3.5.1999 one witness was present, but the learned counsel for the petitioner was not present and the petitioner was directed to produce his evidence on his own responsibility. On 10.8.1999 the evidence was closed by the order of the Court. 11. The backdrop of the case is that the petitioner is facing prosecution since the year 1986 and abruptly in 1999 the evidence of the petitioner was closed. By judgment dated 17.6.1995 the learned Sessions Judge returned the complaint to the Food Inspector on the grounds mentioned therein. 12. Learned counsel appearing for the petitioner places reliance on the judgment of the Supreme Court in Ronald Wood Mathams and others vs. State of West Bengal, AIR 1954 SC 455 to hold that the right of the accused to lead evidence in defence cannot be treated in casual manner. In particular, he relies upon the observation of the Supreme Court that: “10………It must be conceded that the evidence on record tends to establish a strong case against the appellants. But then, that is a case which they are entitled to rebut, and if, as was held by the Federal 8 Court, Exhibit 27 series would furnish good material for rebutting that case, the Court, by declining to issue process for the examination of the witnesses connected with those documents has deprived the appellants of an opportunity of rebutting it. Whatever one may think of the merits of the appellants’ contention, they cannot be convicted without an opportunity being given to them to present their evidence, and that having been denied to them, there has been no fair trial, and the conviction of the appellants, S.K. Dutt, J.K. Bose and P.C. Ghose, cannot stand.The result may be unfortunate. But it is essential that rules of procedure designed to ensure justice should be scrupulously followed, and Courts should be jealous in seeing that there is no breach of them. The appeals will be allowed and the appellants acquitted. (at p. 457) Another decision relied upon by learned counsel is Habeeb Mohammad vs. State of Hyderabad AIR 1954 SC 51, holding that in case inadequate/no opportunity is given to the accused, the only course open to the Court would be to acquit him. The Court holds: “15……..A conviction arrived at without affording opportunity to the defence to lead whatever relevant evidence it wanted to produce cannot be sustained. The only course open to us in this situation is to set aside the conviction. The next question for consideration is whether in the result we should order a retrial of the appellant. After a careful consideration of the matter we have reached the conclusion that this course will not be conducive to the ends of justice. The appellant was in some kind of detention even before he was arrested. Since January 1949 up to this date he has either been in detention or 9 undergoing rigorous imprisonment and since the last three years he has been a condemned prisoner. The events regarding which evidence will have to be taken afresh took place on the 9th December, 1947 and after the lapse of six years it will be unfair and contrary to settled practice to order a fresh trial………” (at p. 61) Learned counsel also relies upon T.Nagappa vs. Y.R. Muralidhar, (2008) 2 SCC (Cri) 677 holding: “9. What should be the nature of evidence is not a matter which should be left only to the discretion of the court. It is the accused who knows how to prove his defence. It is true that the court being the master of the proceedings must determine as to whether the application filed by the accused in terms of sub- section (2) of Section 243 of the Code is bona fide or not or whether thereby he intends to bring on record a relevant material. But ordinarily an accused should be allowed to approach the court for obtaining its assistance with regard to summoning of witnesses, etc. If permitted to do so, steps therefor, however, must be taken within a limited time. There cannot be any doubt whatsoever that the accused should not be allowed to unnecessarily protract the trial or summon witnesses whose evidence would not be at all relevant. 11. The issue now almost stands concluded by a decision of this Court in Kalyani Baskar v. M.S. Sampoornam (2007) 2 SCC 258 (in which one of us, L.S. Panta, J. was a member) wherein it was held: (SCC p.262, para 12) “12. Section 243(2) is clear that a Magistrate holding an inquiry under CrPC in respect of an offence triable by him does not exceed his powers under Section 243(2) if, in the interest of justice, he directs to send the document for 10 enabling the same to be compared by a handwriting expert because even in adopting this course, the purpose is to enable the Magistrate to compare the disputed signature or writing with the admitted writing or signature of the accused and to reach his own conclusion with the assistance of the expert. The appellant is entitled to rebut the case of the respondent and if the document viz. the cheque on which the respondent has relied upon for initiating criminal proceedings against the appellant would furnish good material for rebutting that case, the Magistrate having declined to send the document for the examination and opinion of the handwriting expert has deprived the appellant of an opportunity of rebutting it. The appellant cannot be convicted without an opportunity being given to her to present her evidence and if it is denied to her, there is no fair trial. ‘Fair trial’ includes fair and proper opportunities allowed by law to prove her innocence. Adducing evidence in support of the defence is a valuable right. Denial of that right means denial of fair trial. It is essential that rules of procedure designed to ensure justice should be scrupulously followed, and the courts should be jealous in seeing that there is no breach of them. (at p. 681-682) The other decisions may be noticed namely Sudhir Kumar Dutt and others vs. The Governor General of India, AIR 1949 Federal Court 6 holding that it is imperative and the trial Court has no discretion to refuse to issue a process to compel the attendance of any witness cited by the accused. Similarly in Ishar Singh and others vs. Shama Dusadh and others AIR 1937 Patna 131 the High 11 Court holds that the Court should give full opportunity to the accused to call his witness in defence. I need not notice any more judgments on this principle, which now stands established and is nothing but an elaboration of the fundamental right guaranteed under Article 21 which guarantee s a fair trial to every citizen accused of an offence. 13. Learned Additional Advocate General submits that the petitioner was deliberately delaying the adjudication of the case and despite repeated opportunities having been granted to him, he had not led evidence in defence. He submits that trial was being stretched interminably only for the purpose of escaping from conviction which was otherwise the only result. 14. I am unable to accept this submission. The delay if any can be squarely laid at the door of the prosecution. The case was remanded after a period of more than 6 years after the case was instituted. Again 3/4 adjournments were granted for non- compliance of issue of process for no fault of the petitioner, and even then the Court had issued orders to compel the accused to produce the witnesses on self responsibility rather than using coercive process to compel their presence. In these circumstances, I hold that the petitioner was deprived of his valuable right of defence and therefore there would be no other course but to set aside his conviction. 15. The second point raised by the learned counsel is that there has been a non-compliance of Rule 4 of the Rules. It has not been proved on record as to whether Rule 4(1)(a) which requires the sample to be sent in particular manner, had been complied with or not. Learned counsel submits that there has 12 been violation of sub rules (1), (3) and (4). Learned counsel urges that the report of the Central Food Laboratory Ext.P-11 which supersedes the report of Public Analyst has not been proved in accordance with law. The report Ext.P11 has not been proved to have been sent in compliance of the mandate of sub- rules (1), (3) and (4) which read: “(1)(a) Samples of food for analysis under sub- section (2) of section 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. (b) Samples of food for analysis under sub- section (2) of section 6 of the At or under clause (a) or rule 3 shall be sent either through a messenger or by registered post in a sealed packet enclosed together with a memorandum in Form I-A in an outer cover addressed to the Director. (3) A copy of the memorandum and a specimen impression of the seal used to seal the container and the cover shall be sent separately by registered post to the Director. (4) On receipt of a package containing a sample for analysis, the Director or an officer authorised by him, shall compare the seals on the container and the outer cover with specimen impression received separately and shall not the condition of the seals thereon.” 16. Learned counsel places reliance on the decision of the State of Maharashtra vs. Rajkaran 1988 SCC (Cri) 47 holding: 13 “4. …….The appellate court took the view that when the prosecution came with the story that the material has been despatched by registered post, it was to establish its case of such despatch and did not accept the version of the prosecution in the absence of the postal receipt. What the appellate court has found is that the prosecution has failed to establish that the documents referred to in Rule 18 had been separately sent. That led to the conclusion that there was non-compliance with the scheme covered in Rules 17 and 18 of the Rules…..” To similar effect is the judgment of the Gujarat High Court in State of Gujarat vs. Devangbhai Ratilal Shah and others 2011 (1) Crimes 48 (Guj.) the Court holds: “Now as per this Rule there is a clear duty caste upon the Director to compere the seals of both the containers i.e. the inner and the outer covers of the containers. Learned Advocate for the apepllant has drawn this Court’s attention to the report of theDirector which is following part of the record at page 143 wherein it is mentioned as under: “the condition of the sales on the container and the outer covering on receipt was as follows: Intact and unbroken.” 17. Another decision relied upon by the learned counsel is in Mohanlal Maganlal Sindhi vs. State of Gujarat 1977 (II) Prevention of Food Adulteration Cases 236 holding that provisions of Rules 4 and 18 are in pari-materia and require strict compliance in law. In other words, mandatory requirements have to be proved before it can be held that the report can be used against a particular person. The Court holds: 14 “5. The view that I take finds support from a Division Bench decision of this court in Harchand Gajpal vs. State of Gujarat 1976 (1) F.A.C. 15 where the court was concerned with the interpretation of sub-rule (3) of rule 4 of the Rules. The question posed was whether the provision of sub-rule (3) of rule 4, in so far as it stipulates that a copy of the memorandum and the specimen impression of the seal used to seal the container and the cover shall be sent spearately, is mandatory or directory. Before I deal with this decision, it is necessary to rea sub-rule (3) of rule 4 which provides that a copy of memorandum and a specimen impression of the seal used to seal the container and the cover shall be sent separately by registered post to the Director. This rule has reference to sub-section (2) of Section 13 of the Act…… 6………The underlying principle, therefore, in sub-rule (3) of rule 4 and rule 18 seems to be the same, namely, to afford protection to the accused because the certificate issued by the Director or the Public Analyst, as the case may be, is made admissible in evidence by virtue of section 12 of the Act. If therefore, it is found on facts that both the food sample packet sent under rule 17 as well as the impression of the sale alongwith the memorandum sent under rule 18 were sent with the same messanger, there can be no doubt that the protection given to the accused is rendered illusory and mandatory requirement of rule 18 is breached. In the stant case, as pointed out earlier, it is obvious from the deposition of the complainant that both these were sent together with the same peon or messanger Shri Rabari. That messanger has not been examined…………The mischief can be played while the messanger carries the food sample as well as the specimen impression of the sal after they are delivered to him by the Food Inspector and before 15 they are delivered at the office of the Public Analyst. It in transit there is some mischief played and the seals on both are tampered with, the Public Analyst who receives both the food sample as well as the specimen of the impression of the seal will not be able to be say that there is any difference in the seals……….” (at p. 240) 18. I need not consider the other judgments in detail cited by the learned counsel dealing with the compliance of Rules. From the evidence, I do not find