Karnataka High Court
Rama Balawant Hegde vs The Food Inspector on 17 February, 2004
Equivalent citations: 2004CRILJ3605, ILR2004KAR3106, 2004(5)KARLJ138
Author: K. Ramanna
Bench: K. Ramanna
ORDER K. Ramanna, J.
1. All these three revision petitions are filed by the respective revision petitioners/accused, against the judgment dated 27.10.2000 passed by the III Addl. Sessions Judge at Belgaum, in Crl.A.Nos. 62/92, 64/92 and 63/92 respectively, whereby learned Sessions Judge dismissed the appeals filed by the revision petitioners and confirmed the order of conviction and sentence passed by the JMFC, Chikodi, dated 18.9.1992 in CC. Nos 384/88, 546/90 and 7/88 respectively, assailing the said order of conviction and sentence these revision petitioners have come up with this revision under Section 397 and 401 of Cr.P.C mainly on the ground that the specimen seals were not sent on the same day along with the sample to the public analyst for comparison and the said Public Analyst has not been examined to show that the sample milk so sent in each of the cases were adulterated one and the report does not disclose about the percentage of milk fat in the sample. The sample milk so sent to the public analyst was that of buffalo. The witnesses cited in the complaint are not examined to prove that on that day the complainant had purchased milk from the revision petitioners in all the three cases. P.W1 is an interested witness and believing the sole testimony of such an interested witness cannot be appropriate to base a conviction. Hence these revisions.
2. Since the revision petitioners and the respondent in all these cases are common, in order to avoid the repetition of the facts and law, all these three cases are clubbed together and they are heard and disposed of by a common order.
3. The case of the respondent/prosecution is that on 29.7.1987 at about 10.30 a.m the complaint being the Food Inspector of CMC is said to have been stopped by the revision petitioners in all these cases while they were carrying milk on their bicycles and stopped and purchased required quantity of milk from them and for having purchased the milk he paid the amount and a receipt has been obtained from the revision petitioners and he divided the purchased milk into three equal parts separately, formalin was added in clean and dry bottles and packed in accordance with rules in the presence of panchas under a mahazer.
4. Even though the prosecution has failed to comply with Section 20 of the Food Adulteration Act, 1954 (for short the 'Act') both the courts below ignored the mandatory provisions of the said Act, which is bad in law and so also, the permission granted by the District Health Officer to prosecute these revision petitioners without assigning any proper reasons and without applying judicious mind permitted the Food Inspector to file the charge sheet against the accused persons and so called panchas have not been examined to prove the contents of Ex. P.3 panchanama. Hence, the revision.
5. Heard the learned Counsel appearing on both sides and after perusing the records, the point that arises for my consideration is :-
a) Whether the order under revision is perverse or illegal?
b) If so, whether it calls for any interference?
6. In this behalf, learned counsel for the revision petitioners in all these cases submitted that both the courts below have not properly considered the provisions of Section 20 of the Act and also the rules in sending the sample drawn from the milk vendors. Further, it is submitted that under Section 22 of the Act, 200ml of milk is to be sent to the public analyst for analysis whereas, in these cases, the milk said to have been purchased from the petitioners were less than 750ml and 1/3rd of 750ml ought to have been sent to the chemical analysis after following the preservative methods. The sample milk said to have been sent in each cases is less than 250 ml and therefore, the chemical analysis sent by the public analyst is hit by Section 22 of the Act and hence, the order of conviction passed by the Trial Court and confirmed by the Dist. and Sessions Judge is liable to be set aside.
7. Further, the learned Counsel for the revision petitioners has drawn my attention to the order of sanction issued by the Dist. Health Officer to prosecute the petitioner in all these cases is highly illegal and without applying the mind, the Dist. Health Officer has blindly issued the sanction which is marked as Ex. P. 11.
8. On the other hand, learned HCGP submitted that the Trial Court after considering all the contentions raised by the counsel for the revision petitioners before the Courts below met those contentions and came to a right conclusion in convicting the petitioners in these cases and non-examination of the panchas is not a ground to interfere with the impugned order under challenge. Further, it is maintained that after considering the analysis report, the Dist Health Officer accorded sanction to P.W.1 complainant to prosecute all these revision petitioners.
9. I have carefully examined and reviewed the judgment of both Trial Court as well as the learned sessions Judge. First of all, this Court wanted to see whether the Food Inspector who is said to have purchased the milk from the revision petitioners in all these cases purchased the required quantity of milk as contemplated under Section 22 of the Act. Section 22 of the Act reads thus:-
" QUANTITY OF SAMPLE TO BE SENT TO THE PUBLIC ANALYST :-The quantity of sample of milk to be sent to the public analyst/Director for analysis shall be 250ml."
Therefore the Trial Court as well as the learned sessions Judge have not properly considered whether the Food Inspector has drawn and sent 1/3rd of the milk purchased i.e, 250ml. to the analyst. But in all these cases, P.W. 1 is alleged to have purchased less quantity of milk, which is not sufficient for conducting test.
10. On perusal of Ex.P.11, the sanction said to have been issued by the Dist. Health Officer does not disclose whether the Dist. Health Officer or the Family Welfare Officer, Belgaum, have gone through the copies of documents sent to them vide Ex.P.10 and after applying its judicious mind, the sanction was accorded to prosecute the accused. The Ex.P.11 in all these cases is a cyclostyled one and it does not comply with the mandatory provisions of the Act without properly applying its judicious mind and straight away accorded permission to the Food Inspector, which is bad in law. But both the Courts have not properly dealt with this point and simply, the Courts below have held that Food Inspector who had sent the copies of documents along with the report Ex.P.11 to the Dist. Health Officer to prosecute the revision petitioner and since the Food Inspector has not complied with Sections 20 and 22 of the Act, which are mandatory and straight away believed the oral testimony of PW.1 even though the prosecution has failed to examine the so called panchas in whose presence the milk is said to have been purchased by P.W.1 from the revision petitioners in the aforesaid cases on the same day. Therefore, it could be said that the order of conviction passed by the Trial Court accepting the evidence placed on record through the sole witness P.W.1 is fatal to the case of the prosecution. Therefore, the order of conviction passed by the Trial Court which has been confirmed by the learned sessions Judge and the findings so recorded by both the courts even though the prosecutions has not complied with the mandatory provisions is illegal and incorrect, which calls for interference and therefore, all these revision petition are to be allowed.
11. Accordingly all these revision petitions are allowed. The judgment and order of conviction passed by the Trial Court and confirmed by the learned sessions Judge are set aside and the revision petitioners/accused are acquitted in the respective criminal cases for which they were charge sheeted. The bail bonds if any executed by the revision-petitioners shall stand cancelled. The fine amount if any deposited by the revision petitioners shall be refunded to them.