Himachal Pradesh High Court
State Of H.P. vs Madan Lal on 12 May, 2000
Equivalent citations: 2000CRILJ4200
Author: Kuldip Chand Sood
Bench: Kuldip Chand Sood
JUDGMENT Kuldip Chand Sood, J.
1. On September 20, 1988, Food Inspector, Solan, Shri B.L. Jasta (PW1) visited the business premises of M/s Chet Ram Madan Lal Halwai, Upper Bazar, Solan. Madan Lal (AW1)was found conducting business of Halwai in these premises. One tin weighing about 15 Kgms. containing cow's milk was found in the premises. The tin was sealed. The Food Inspector disclosed his identity and expressed his desire to take sample of cow's milk for the purpose of analysis. The Food Inspector, accordingly, purchased 750 gms. cow's milk taken from the tin on payment of rupees 4.50 paise in the presence of Mangat Ram (PW2) and Mehar Chand, peon of the Food Inspector (PW3). The milk so purchased was divided in three equal parts. Each part was separately poured in a separate bottle. Twenty drops of formalin were added to each of the bottle as preservative samples were corked, wrapped and sealed in thick paper. Codal formalities were completed. One part of the sample was sent to the Public Analyst, Kandaghat. The Public Analyst caused the sample to be analysed and vide his report dated October 29, 1988 found the sample to be deficient in fats by 29% and in milk solids-non-fat to be deficient by 19% of the minimum prescribed standard. The accused Madan Lal, at the time of lifting of the sample, disclosed that milk was purchased by him from Amarjit Singh (AW2) of M/s New Anand Dairy Milk Suppliers, Saharanpur (U.P.) in a sealed tin. The Food Inspector after obtaining necessary sanction under Section 20 of the Prevention of Food Adulteration Act, (The Act for short), filed a complaint before the learned Additional Chief Judicial Magistrate, Solan at Kandaghat. The learned trial Magistrate vide his judgment dated December 31, .1994 convicted accused Madan Lal for an offence punishable under Section 16(1) (a) (i) read with Section 7(i) of the Act and sentenced him to suffer simple imprisonment for one year and to pay a fine of rupees 1000/-. In case of default of the payment of fine, the accused Madan Lal is to suffer simple imprisonment for three months. (A-2) Shri Amarjit Singh was acquitted of the charge on the ground that vender Madal Lal failed to prove that sealed tin, from which sample of the milk was taken, was purchased by him from A-2.
2. Aggrieved, accused Madan Lal filed an appeal before the learned Session Judge, Solan. Learned Session Judge vide his judgment dated December 6, 1996 acquitted the accused Madan Lal on the ground that sanction to prosecute the accused, obtained by the Food Inspector from the Local Health Authority is not valid.
3. It is in this background, that the Slate has filed the present appeal.
4. I have heard Mr. R.M. Bisht, learned Assistant Advocate General for the State and Mr. K.D. Sood, learned counsel for the respondent.
5. The contention of Mr. Bisht, learned Assistant Advocate General, is that the sanction accorded by the Local Health Authority, Competent Authority in the present case, is valid and no fault can be found with the sanction inasmuch as the sanction was accorded by the Sanctioning Authority after due application of mind and perusal of the record including the report of the public Analyst. Learned Sessions Judge, relying upon Narinder Kumar v. State of H.P. 1994 A.A.J. 196 (HP), Deep Chand Agarwala @ Deepak Agrwala v. State of Orisssa 1995 F.A.J. 266 (Orissa) and State of M.P. v. Saifuddin 1994 F.A.J. 360, concluded that sanction in the present case is not valid as the Sanctioning Authority in his sanction order failed to give the facts of the case or the detail of the material on the basis of which he satisfied himself about the prosecution of the accused in public interest. (1994 FAJ 196) (Him-Pra)
6. It is true that in Narinder Kumar's case supra, it has been held that if the Competent Authority fails to mention the specific documents which the Authority perused and considered at the time of sanctioning the prosecution, then the prosecution vitiates and an accused is entitled to acquittal. There is no denying of fact that Competent Authority must apply its mind to the facts of the case before he accord sanction to prosecute an accused. In the present case, submits Mr. Bisht, there is sufficient evidence on record to show due application of mind on the part of the Local Health Authority, Competent Authority in this case, before he accorded sanction to prosecute the accused.
7. Food Inspector Mr. B.L. Jasta (PW1) categorically states that he sent the report of the Public Analyst along with other related documents to the Chief Medical Officer, "Solan for necessary sanction to launch prosecution against the accused. It is his further evidence that after going through the various documents and the report of the Public Analyst, written consent Ext. PW 1 / N was recorded by the Competent Authority. There is no scope of dispute that pertinent material in connection with the prosecution of the accused was placed before the sanctioning Authority. Perusal of the sanction order Ext. PW1/M shows that the report of the Public Analyst and the relevant documents produced before him by the Food Inspector were perused by the Sanctioning Authority before sanction was accorded. Paras 2 and 3 of the sanction reads :
That after careful study of the report of Public Analyst No. 561 of dated 29-10-1988 and other relevant documents produced before me by Sh. S.L. Justa Food Inspector Solan pertaining to the sample No. SLN7S/ 681 of Cow's milk taken by Sh. B.L. Justa Food Inspector on 20-9-1988 from Sh. Madan Lal Halwai of M/s Chet Ram Madan Lal Halwai Upper Bazar Solan.
I have come to the conclusion that the prosecution is required to be launched in this case in the Court of law in the public interest. I have applied my mind fully to all the facts of this case and found it a fit case for institution of prosecution in the court of law as the vendor has sold adulterated milk to the Food Inspector and thus it is adulterated under Section 2(ia) (m)of the PFA Act, 1954 as the percentage of Milk fat is deficient by 29% and the percentage of milk-solids-nonfat is deficient by 19% than minimum prescribed standard.
(Emphasis supplied)
8. It may be noticed that Section 20(1) of the Act contemplates that no person can be prosecuted under Section 14 or 14(a) of the Act unless written consent of the person authorised in this behalf by general or special order by the Central Government or the State Government has been obtained.
9. It is not in dispute, that Local Health Authority (CMO) has been authorised to launch prosecution under the Act. Section 20(1) of the Act may be reproduced for convenience :
20 (1) No prosecution for an offence under this Act, not being an offence under Section 14 or Section 14-A, shall be instituted except by, or with the written consent of the Central Government or the State Government or a person authorised in this behalf, by general or special order, by the Central Government or the State Government.
Provided that a prosecution for an offence under this Act may be instituted by purchaser or recognised consumer association referred to in Section 12, if he or it produces in Court a copy of the report of the Public Analyst along with the complaint.
10. Sanction accorded by the Sanctioning Authority placed on record as Ext. PW1/ M, as already noticed, shows that the sanction was accorded by the Sanctioning Authority after going through the report of the Public Analyst and other relevant documents pertaining to this particular case and found this case to be a fit for the institution of the prosecution.
11. In Suresh H. Rajput v. Bhartiben Pravinbhai Soni (1996) 1 F.A.C. 1 : 1996 Cri LJ 1621 the Apex court held that requirement of Section 20(1) of the Act would be satisfied if the report of the Public Analyst and other pertinent material in connection therewith is placed before the sanctioning authority. At that stage, it was not given to the sanctioning authority to weigh pros and cons and then to find whether the case would result in conviction or acquittal. It is not for sanctioning authority to consider all these matters. In that case, the learned Magistrate held that authority did not apply its mind and, therefore grant of sanction was invalid. In that case, material portion of the sanction order read :
I hereby give consent to the Food Inspector Shri S.H. Rajput to prosecute (name of the accused was mentioned in each case).
12. Their Lordships quoted with approval the (Observation in State of Bihar v. P.P. Sharma 1992 (Supp) 1 SCC 222 : 1991 Cri.LJ 1438 which reads :
It is equally settled that before granting sanction the authority or the appropriate Government must have before it the necessary report and the material facts which prima facie establish the commission of offence charged for and that appropriate Government would apply their mind to those facts. The order of sanction is only an administrative act and not a quasi-judicial one nor is a lis involved. Therefore, the order of sanction need not contain detailed reasons in support thereof as was contended by Sri Jain. But the basic facts that constitute the offence must be apparent on the impugned order and the record must bear out the reasons in that regard.
13. As noticed earlier, perusal of the sanction order Ext. PW1/M clearly shows that consent was accorded by the sanctioning authority after having considered all the relevant documents including the report of the Public Analyst which fact finds support from the evidence of the Food Inspector (PW1). The sanction, in the circumstances, does not suffer from any infirmity.
14. Faced with the situation, Mr. K.D. Sood, learned counsel for the respondent-accused submits that the sample taken by the Food Inspector for the purpose of analysis was not of representative character as the milk was not properly stirred before the sample was lifted. There is force in the contention of Shri Sood. there is a possibility of the fat setting on the top in milk and milk preparations when sample from same is taken for the purpose of analysis. Therefore, the sample must be homogeneous and representative so that the analysis can furnish reliable proof of nature and content of the article of food under analysis. There is no acceptable evidence on the record to show that the sample so lifted by the Food Inspector was of homogenous and representative character. The Food Inspector appearing as PW1 though states that he shook the tin of the milk before pouring part of the contents in a 'Patila' and thereafter purchased 750 gms. of milk from the 'Patila'. However, In cross-examination, he admits that he poured the milk from the tin into 'Patila" after causing small hole on the surface of the tin, he denies the suggestion that the milk which was poured into 'Patila' contained ice formation of the milk. He admits that he did not put any long handle or long spoon in the tin to stir the milk. In his own words :
It is correct that I got a small hole on the surface of the tin and poured small quantity of milk in patila...." "It is correct that I did not put any long handle or long spoon or stirrer in the tin.
15. PW2 Mangat Ram in his cross-examination states that milk in the tin was frozen. He further admits that ice came into 'Patila'. The 'Patila' was of 4 or 5 Kgms. capacity. He also admits that no stirrer was used in the tin or 'Patila' to stir the milk and that milk was poured into three separate bottles without stirring it.
16. In Food Inspector, Municipal Corporation, Baroda v. Madanlal Ramlal Sharma, (1983) 1SCC 135 : 1983 Cri.LJ 337, it was found that proper churning of the sample of curd was not done. In this context, Their Lordships observed : at P. 339 of Cri.LJ ...We are conscious of the fact that in milk and milk preparations including curd, it is distinctly possible that the fat settles on the top and in order to find out whether the milk or its preparation such as curd has prescribed content, the sample must be homogenous and representative so that the analysis can furnish reliable proof of nature and content of the article of food under analysis. For this purpose churning is one of the methods of making the sample homogeneous and representative. But having said this, there is nothing in the Act or the rules which prescribes that churning must be done by some instrument, and that churning done by hand would not provide a homogenous and representative sample. Common sense dictates that articles of food like milk and curd when churned with hand would properly mix up from top to bottom.
17. Apparent as it is, the Food Inspector is obliged to take a representative and homogenous sample of milk or milk preparation and such a homogeneous representative sample can only be taken if proper churning or stirring of the entire contents are done. The evidence as already discussed shows that the milk was not stirred at all. The Food Inspector merely states that he shook the tin. Shaking of the tin would not amount to proper churning, moreso, when Mangat Ram (PW2) is categorical that milk which was poured in 'Patila' contained ice and that the milk in the tin was poured into bottles. It is his evidence that ice was in the milk and had not melted.
18. It is admitted position that milk was neither stirred in the tin, from which the milk was poured into 'Patila' nor in 'Patila'. The fat as noticed earlier settles on the top, therefore, the possibility of the fat having deposited on the top of the milk in the tin which might not have come through the small hole in the tin, cannot be ruled out. The sample taken by the Food Inspector by no stretch of evidence can be said to be homogenous or of representative character.
19. Reference may also be made to K. Harikumar v. Food Inspector, Punaloor Municipality 1995 (Supp) 3 SCC 405. In that case, Their Lordships observed that in order to attain homogeneity in curds, stirring and churning as the case may be, becomes necessary for the ingredients of milk solid non-fat and milk solid fat getting a uniform consistency in order to determine the percentage in their completeness. In that case, there was about 10 ltrs. of curd lying in the hotel of the appellant in the aluminium pot from which pot food Inspector purchased the samples. No where did he mention that the curds were stirred and churned before the sample was taken or that it was given a vertical cut. In this context, Their Lordships observed :
Be that as it may, the fact remains that the samples were not taken in their completeness and those parts of curds may have been taken which would in the ultimate analysis lead to some distortion in the percentage.
20. In the present case also the Food Inspector did not take the sample in its completeness as sample was taken without stirring or churning the milk resulting in the finding of the Public Analyst that percentage of milk fat and milk-solids-non-fat was deficient of the minimum prescribed standard.
21. The next contention of Shri K.D. Sood, learned counsel for the respondent, relying upon Parkash Chand v. State of Himachal Pradesh (1990)2 Sim. LC 7, is that there was inordinate delay in complying with the provisions of Section 13(2) of the Act inasmuch as the sample was taken on September, 20, 1988, the same was analysed on October 29, 1988, permission to prosecute the accused was accorded on December 13, 1988 and copy of the report of Public Analyst was sent to the accused on April 3, 1989 which is fatal to the prosecution. Sub-section (2) of Section 13 requires the Local Health Authority to send a copy of the report of the Public Analyst to the accused and to inform him that he may apply to the Court within ten days to get the sample analysed by the Central Food Laboratoiy. Rule 9A provides that copy of the Report shall be sent to the accused within ten days of the institution of the prosecution against the accused.
22. The object of Sub-section (2) of Section 13 is to afford an opportunity to the accused to get the sample analysed, if so desired, by the Central Food Laboratory whose certificate is deemed to be final and conclusive proof of the facts stated therein.
23. Shri Sood also refers to Makhan Singh v. State of U.P. 1988 F.A.J. 628 (All). In that case, the sample of milk was taken by the Food Inspector. The report of the Public Analyst was sent to the petitioner after eight months of the taking of the sample. In this context, it was observed that there was a violation of the valuable right under Section 13(2) of the Act as by that time, the sample must have decomposed and deteriorated.
24. It is true that by an inordinate delay in launching the prosecution and sending copy of the report of public Analyst, valuable right of the accused under Sub-section (2) of Section 13 of the Act is lost provided, however, if the accused choose not to apply to the Court to have the second part of the sample sent to the Central Food Laboratory, then he cannot be heard to complain of the delay in the receipt of the report by him unless he establish some kind of prejudice. The Apex Court in Babulal Hargovindas v. State of Gujarat 1972 FAC 18 : 1971 Cri.LJ 1075 found that accused had an ample opportunity to make an application to the Court for sending the sample to the Central Food Laboratory for analysis. He did not avail of this opportunity. In this context, Their Lordships observed that it was not open to the accused to contend that he had no opportunity to send the sample in his custody to the Director, Central Food Laboratory under Section 13(2) of the Act as the accused had failed to make any application to the Court for sending it. The matter stands concluded in Prabhu v. State of Rajasthan (1994) 1 FAC 194 : 1994 AIR SCW 2649. In that case, it was contended on behalf of the accused that from the date of taking the sample till the date of launching the prosecution, there was considerable delay. There was an inordinate delay to forward the sample for analysis to the Director, Central Food Laboratory which cause considerable prejudice to the appellant. The contention was rejected with the observations: at PP. 2651-52 of AIR SCW Thus, it is settled law that the appellant has a right under Section 13(2) to avail of sending the sample in the custody of the Court for analysis by the Central Food Laboratory after the prosecution was laid or immediately after notice was received by him in the case, by making an application to the Court. The duty of the prosecution to send the report is governed by Rule 9A of the Rules. After January 4, 1977, the word 'immediately' was used replacing the words "within ten days" in this. The decision of this Court in Ahmed Dadabhai Advani v. State of Maharashtra (1991) 1 FAC 222 : (1991) 5 JT (SC) 178 : 1991 Cri LJ 1418 relied on by the appellant does not help him. Therein, the report was stated to have been despatched on June 13, 1974. But, in fact it was despatched on July 11, 1979. The report was of September 1, 1978. The Magistrate on the basis of those facts held that it must have been received in due course and there was delay in launching prosecution. Since the acquittal ordered by the Magistrate was interfered with by the High Court, this Court stated that the High Court was not justified in interfering with the same. The fact of non-availing of the remedy under Section 13(2) had not been considered by this Court. Therefore, the ratio in Ahmed D. Advani's case does not run counter to the consistent law laid by this Court in the above cases that despite non-availment of the remedy under Section 13(2), prejudice could be inferred.
9. Under these circumstances and following the consistent law laid by this Court, we are of the considered view that since admittedly the appellant had not availed of the remedy under Section 13(2) to send the sample of the article of food for analysis by the Central Food Laboratory, it cannot be held that the appellant suffered prejudice on account of delay in laying the prosecution. It is also seen from the record that within 10 days from the date of the filing of the prosecution, the report was sent to the appellant, though Sh. S. K. Jain seeks to contend that there is no proof of service. Since it being a question of fact and not disputed in the Courts below, we cannot go into that question. In that view, we hold that ho prejudice has been caused to the appellant.
25. In this case, it is noticed from the record that prosecution was launched on March 31, 1989 and the report of the Public Analyst was sent to the accused on April 3, 1989 well within the period often days. It is further noticed that accused did not avail of the opportunity to have the sample analysed from the Central Food Laboratory. In the circumstances, no prejudice could be said to have been caused to the accused.
26. No other point is urged before me.
27. In result, the appeal fails though for different reasons, and is dismissed. Bail bonds of the accused are discharged.