Case: State Of H.P Vs. Narender Kumar

11.4.1985, the Food Inspector took sample of Shakkar from the shop of the accused no.1. He purchased 600 gms, of Shakkar for analysis after serving the requisite notice. Thereafter sample articles were sealed and one such sample was sent to the Public Analyst for analysis. On analysis the sample was found to be containing un-permitted acid coal tar of orange shade. Prosecution was launched after service of notice in terms of Section 13(2) of the Act. During trial, the accused no.1 applied under Section 19(2) seeking to implead Jain Trading Company represented through its manager - respondent no.2 (hereinafter referred to as the Vendor). The vendor was impleaded as accused no.2. In order to establish its accusation, the prosecution examined 4 witnesses and produced the record relating to the sanction and the public Analyst report. The accused persons pleaded innocence. In his statement recorded under Section 313 of the Code of Criminal Procedure, 1973 (in short the Cr.P.C.) accused no.1 took the stand that though sample was taken, there was no proper mixing and that it was not taken from the place indicated in the complaint. He further took the plea that his brother had purchased the articles in question from accused no.2, which was not meant for sale but was for consumption by animals. Accused no.2 took the plea that articles in question were never sold to accused no.1 and the receipt which was produced was fictitious. Trial court by judgment and order dated 24.10.1990 held that accusations were not established, and recorded the findings in favour of the accused. Firstly, it was held that the sanction order was defective, and secondly there was no compliance of the mandatory requirements of Rule 18 of the Prevention of Food Adulteration Rules, 1955 (in short the Rules). For coming to the second conclusion it was held that there was no definite material about despatch of the seal impression and the memo Ex. P-E separately. So far as culpability of accused no.2 is concerned, with reference to Section 19 it was held that the accused no.1 failed to show that the bill on which he placed reliance was a genuine one and that the sample article of food while in his possession was properly stored and that it was sealed in the same state as he had purchased. The State questioned correctness of the judgment before the High Court. By the impugned judgment, the High Court held that the Trial Court was not justified in its conclusion about the absence of valid sanction. It, however, held that the prosecution has failed to prove despatch of seal impression and memo separately which is a mandatory requirement under Rule 18 of the Rules. It also upheld the acquittal of accused no.2.

Reasoning:
When the evidence on record is considered in the background of the legal position highlighted above, the inevitable conclusion is that the Trial Court and the High Court were not justified in directing acquittal of accused no.1. So far as the acquittal of accused no.2 is concerned, the conclusions of the Trial Court and the High Court have been arrived at by properly appreciating the evidence and no interference is called for.11. The occurrence took place nearly two decades back, and the Courts below acquitted the accused, though erroneously. Therefore, keeping in view the nature of violation and the peculiar facts and circumstances of the case while sentencing accused no.1 to undergo 6 months RI and fine of Rs. 1,000/- we make it clear that if accused no.1 moves the appropriate government to commute the sentence of imprisonment, the same may be considered in the light of this Courts decision in N. Sukumarans case (supra) subject to such conditions or terms as the government may chose to impose. For period of three months, the accused need not surrender to undergo sentence. During this period it shall be open to him to move the appropriate government for commutation. The fate of the order of commutation, if any, shall be operative. If no order is the matter of commutation is passed by the appropriate government, the accused no.1 shall surrender the custody to serve the remainder of sentence.