Himachal Pradesh High Court
State Of H.P vs Deepak Sood on 5 November, 2015
Author: Rajiv Sharma
Bench: Rajiv Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
Cr.A. No. 302 of 2006 .
Reserved on: 3.11.2015 Decided on: 5.11.2015 ______________________________________________________ State of H.P. ...Appellant.
Versus
Deepak Sood. ...Respondent.
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______________________________________________________________ Coram:
Hon'ble Mr. Justice Rajiv Sharma, Judge.
rt Whether approved for reporting?1 Yes For the Appellant : Mr. Parmod Thakur, Addl. A.G. For the Respondent: Mr. Bhupender Gupta, Sr. Advocate with Mr. Neeraj Gupta, Advocate.
____________________________________________________________ Justice Rajiv Sharma, Judge.
This Appeal is directed against the judgment dated 11.5.2006 rendered by the Additional Sessions Judge, Shimla in Criminal Appeal No. 9/10 of 2004/02.
2. "Key facts" necessary for the adjudication of this appeal are that Sh. L.D. Thakur was working as Food Inspector for the District Shimla and visited Rohru on 21.4.2001. Accused was running a Karyana shop in the 1 Whether reporters of the local papers may be allowed to see the judgment? Yes ::: Downloaded on - 15/04/2017 19:19:19 :::HCHP 2 name and style of M/s Krishna Trading Company, Rohru in Rohru Bazar. The shop was visited by the Food .
Inspector at about 12.30 P.M. He disclosed his identity.
He also disclosed his intention to take sample of Arhar dal for analysis. He issued notice to the accused. Thereafter, he purchased 600 grams of Arhar dal from a gunny bag of placed in the shop containing 40 kgs of Arhar dal, which was displayed for sale. It was made homogeneous with rt bamboo (instrument used for mixing food articles). He paid the price and obtained the receipt. 600 grams of Dal was separated into three parts and was placed in three thick polythene bags, which was made air tight and was sealed.
Accused was made to affix his signatures in such a manner that half of the signatures came on the slip and half on the thick paper. It was made tight with strong thread and thereafter seals were affixed by covering all the knots on the thread. A copy of form No.VII was placed in separate envelope and seal impression was also placed in envelope.
The sample and copy of form No.VII were sent to the Public Analyst. Remaining two samples alongwith copies of form No.VII and seal impression were sent to the Local Health Authority. After the receipt of the report from the Public ::: Downloaded on - 15/04/2017 19:19:19 :::HCHP 3 Analyst, the Food Inspector was informed by the office of the Local Health Authority through a letter. He collected .
all he papers and placed before the C.M.O. The C.M.O. gave written consent to launch the prosecution.
3. Thereafter, notice was sent to the accused.
Accused applied for sending of one sample for analysis by of the Director Central Food Laboratory, which was sent accordingly. The Director Central Food Laboratory rt reported the contents to be adulterated within the meaning of the Act. Notice under section 251 Cr.P.C. was issued.
Prosecution evidence was recorded. Statement of accused was recorded. Accused stated that when the sample was taken he was not in the shop. Accused was sentenced by the Additional Chief Judicial Magistrate, Rohru for offence punishable under section 16 (1) (1) (i) of the Prevention of Food Adulteration Act vide judgment/order dated 5.8.2002/6.9.2002. Accused filed an appeal against the judgment/order dated 5.8.2002/6.9.2002 before the Additional District Judge, Shimla. He allowed the same on 11.5.2006. Hence, the present appeal.
4. Mr. Parmod Thakur, learned Addl. A.G. has vehemently argued that the prosecution has proved the ::: Downloaded on - 15/04/2017 19:19:19 :::HCHP 4 case against the accused for offence under section 16 (1) (a)
(i) of the Prevention of Food Adulteration Act.
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5. Mr. Bhupender Gupta, learned Senior Advocate has supported the judgment dated 11.5.2006.
6. I have heard the learned counsel for the parties and have gone through the records carefully.
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7. PW-1 L.D. Thakur has testified that on 21.4.2001 at about 12.30 P.M., he visited the shop of rt accused. He found in a gunny bag about 40 Kgs Arhar dal.
It was displayed for sale. He disclosed his identity. He purchased 600 grams of Arhar dal and paid a sum of Rs.
19.20 paise. The receipt was taken vide Ex.P-2. Dal was mixed with a clean bambo before purchasing it. Dal was separated into three parts and was packed into three thick polythene bags, which was closed with burning candle and was made air tight. The details of the sample were affixed on every packet and thereafter it was wrapped with thick paper, which was bearing Sr. number and code No.S-
1/35/9 was affixed on the packets. Accused also signed on every packet. The samples were wrapped with strong thread, which was sealed with wax and four seals each were affixed on each packet. One sample alongwith form ::: Downloaded on - 15/04/2017 19:19:19 :::HCHP 5 No.VII was sent with sealed packet to the Public Analyst, Kandaghat through Peon. One seal cover was sent .
separately to the Local Health Authority. Arhar Dal was found to be adulterated by the Public Analyst. The C.M.O. gave the permission to launch prosecution. Thereafter, he filed the complaint Ex.P-12. In his cross-examination, he of has denied that no suitable container was used for taking the sample.
9. rt PW-5 Gulab Singh has deposed that nothing was done in his presence. The Food Inspector took permission to ask questions, which were permitted to be asked. He has deposed that he was present in the shop of accused on 21.4.2001. However, he could not tell that the Food Inspector came there. Fact of the matter is that he has admitted signatures on Ex.P-1 to Ex.P-3.
10. PW-4 Ashok Kumar has deposed that he was working as Peon in the health department. He accompanied the Food Inspector at the time of taking sample. According to him, Dal was packed in three separate polythene bags and thereafter the bags were closed with burning candle making air tight and wrapped with thick paper. PW-2 Naresh Sharma, Dealing Assistant ::: Downloaded on - 15/04/2017 19:19:19 :::HCHP 6 in the office of C.M.O. was also examined. According to him, report of the Public Analyst was received on .
28.5.2001. PW-3 K.R. Dutta has deposed that he was Dealing Assisting upto August, 2001 in the office of C.M.O. Shimla. After perusing the documents pertaining to the case, Dr. Vijay Kumar Sood gave written consent.
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11. PW-5 Gulab Singh has not supported the case of prosecution. He was declared hostile. He has admitted rt the signatures on Ex.P-1 to Ex.P-3. It is evident from the statement of PW-1 L.D. Thakur that sample was mixed with bamboo and not by applying quartering method, as envisaged, i.e. by taking the sample after making the same homogeneous and dividing the entire lot into the quarter and then taking one quarter for analysis. His statement that the Dal was mixed has not been supported by PW-2 Ashok Kumar and PW-5 Gulab Singh.
12. According to PW-1 L.D. Thakur, the samples were taken in polythene bags. According to rule 14 of the Prevention of Food Adulteration Rules, samples for the purpose of analysis are required to be taken in clean dry bottles or jars or any other suitable containers, which are to be closed sufficiently tight to prevent leakage, ::: Downloaded on - 15/04/2017 19:19:19 :::HCHP 7 evaporation or in the case of substance, entrance of moisture and shall be carefully sealed. . The object to put .
the sample in clean dry bottle or jar is not only to prevent leakage or evaporation of the contents of the bottle, but also to eliminate the changes of presence of moisture.
Thus, the polythene bag cannot be called a container of within the meaning of provisions of rule 14.
13. This Court in State of Himachal Pradesh vs. rt Hans Raj 1992 (1) FAC 73 has held that rule 14 of the Rules deals with the manner of sending samples for analysis. It was further held that the provision contained in this rule are required to be strictly complied with and non-compliance thereof would be fatal to the prosecution since the provisions contained in rule 14 are mandatory in nature.
14. Division Bench of Punjab and Haryana High Court in State of Punjab vs. Raman Kumar, 1998 Cri.L.J. 737 has held that polythene containers or a wrapper of strong thick paper cannot conform to a definition of container as contained in Rule 14 of the Rules.
Division Bench has held as under:
::: Downloaded on - 15/04/2017 19:19:19 :::HCHP 8"[16] Manner of packing and sealing the samples: - All samples of food sent for analysis shall be packed, fastened and sealed in the following manner namely:-
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(a) The stopper shall first be securely fastened so as to prevent leakage of the contents in transit.
(b) The bottle, jar or other container shall then be completely wrapped in fairly strong thick paper. The ends of the paper shall be neatly folded in and affixed by means of gum or other adhesive.
(c) A paper slip of the size that goes round completely of from the bottom to top of the container, bearing the signature and code and serial number of the Local (Health) Authority, shall be pasted on the wrapper, the signature or the thumb impression of the person from whom the sample has been taken being rt affixed in such a manner that the paper slip and the wrapper both carry a part of the signature or thumb impression:
Provided that in case, the person from whom the sample has been taken refuses to affix his signature or thumb impression, the signature or thumb impression of the witness shall be taken in the same manner.
(d) The paper cover shall be further secured by means of strong twine or thread both above and across the bottle, jar or other container, and the twine or thread shall then be fastened on the paper cover by means of sealing wax on which there shall be at least four distinct and clear impressions of the seal of the sender, of which one shall be at the top of the packet, one at the bottom and the other two on the body of the packet. The knots of the twine or thread shall be covered by means of sealing wax bearing the impression of the seal of the sender.
[17] Manner of despatching containers of samples: The containers of the samples shall be despatched in the following manner, namely :-
(a) The sealed container of one part of the sample for analysis and a memorandum in Form VII shall be sent in a sealed packet to the public analyst immediately but not later than the succeeding working day by any suitable means.
(b) The sealed containers of the remaining two parts of the sample and two copies of the memoranda in Form VII shall be ::: Downloaded on - 15/04/2017 19:19:19 :::HCHP 9 sent in a sealed packet to the Local (Health) Authority immediately but not later than the succeeding working day by any suitable means:
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Provided that in the case of a sample of food which has been taken from container bearing Agmark seal, the memorandum in Form VII shall contain the, following additional information namely :-
(a) Grade;
(b) Agmark label No. /batch No.
(c) Name of packing station.
of [18] Memorandum and impression of seal to be sent separately: - A copy of the memorandum and specimen impression of the seal used to seal the packet shall be sent, in a sealed packet separately to the Public Analyst by any suitable rt means immediately but not later than the succeeding working day.
14. It may be noted that in the case in hand, the Food Inspector had purchased six packets out of 12 packets of 100 gms. each which were wrapped in polythine papers and on which it was printed as Kashmiri Mirch Chillies Powder M.S. Company, Delhi Trade Mark. The so purchased packets were made into three packets containing 2 packets in each parcel. Each parcel was labelled wrapped in a strong thick khakhi paper and a paper slip bearing serial number and signatures of L.H.A., Hoshiarpur were pasted on each parcel length wise covering top and bottom of each parcel and making the ends of slip join with the help of gum. Each sample parcel was fastened with a strong thread and were sealed with the seal of the Inspector at four distinct places as prescribed. Each sample parcel was got signed by the accused in such a way that one portion of the signature was on the slip and other portion on the wrapper. The Food Inspector also signed in the same manner and put his sample number.
15. In the case in hand, thus, the packets purchased by the Food Inspector were not put in any container. Each packet was wrapped in a thick khaki paper as provided in Rule 16 of the Rules.
16. By this reference, we are called upon to decide as to whether a sample taken in a wrapper of strong thick paper is in ::: Downloaded on - 15/04/2017 19:19:19 :::HCHP 10 violation of Rules 14 and 16 of the Rules. From the facts of the case, it may be taken that the sample was taken as such which was contained in a polythene wrapper and then wrapped in a .
thick khaki paper under Rule 16 of the Rules.
17. We will advert ourselves to decide the question as to whether a polythene container or a wrapper of strong thick paper are covered under the definition of other suitable container as provided under the provisions of Rule 14 of the Rules.
18. The expression other suitable container used in Rule 14 of the Rules cannot be defined as such and this expression of suitable container cannot be confined in a straight-jacket. There may be scores of suitable containers as defined in the rules and as such it is difficult to furnish with exactitude the list of such suitable containers.
rt [19] The only point to be determined is as to whether a polythene container or a wrapper of strong thick paper can be called suitable containers as defined in Rule 14 of the Rules.
Rule 14 provides that samples of food for the purpose of analysis shall be taken in clean dry bottles or jars or in other suitable containers, which shall be closed sufficiently tight to prevent leakage, evaporation, or in the case of dry substance, entrance of moisture and shall be carefully sealed. A reading of the rule gives us a clear impression that other suitable containers mentioned in the rule connotes that it should be as hard as bottles and jars and also could be closed sufficiently tight to prevent leakage, evaporation and in the case of dry substance entrance of moisture. The words bottles and jars are generally understood as closed bottles or blass jars.
[20] When interpreting other suitable containers, the provisions contained in Rule 14 of the Rules have to be read as a whole and the words suitable container takes the hue from the words used in the rule itself. The words bottles or jars mentioned before other suitable container in Rule 14 itself indicates that a suitable container should be as hard as a closed bottle or as a glass jar. The expression used in Rule 16(a) which reads as under:
16(a). The stopper shall first be securely fastened so as to prevent leakage of the contents in transit.::: Downloaded on - 15/04/2017 19:19:19 :::HCHP 11
is also indicative of the fact that the container stipulated in Rule 14 will have a stopper also. With the advancement of time some other containers are also available which are as hard .
as closed; though they may be made of some other hard substance like tin, hard plastic or other material like the one in which we get tooth, paste, cream etc. In sum and substance a suitable container as defined in Rule 14, should be of an inpervious character which should be closed sufficiently tight and carefully sealed to prevent leakage, evaporation or entrance of moisture.
of [21] In our considered view, polythene containers or a wrapper of strong thick paper cannot conform to a definition of container as contained in Rule 14 of the Rules. The polythene bags or a thick paper have got a chance of being pierced. They rt are most susceptible to moisture, rodents, pests and can even burst with a little more pressure put on them. Such type of containers are not in a position of being closed tightly to prevent leakage etc. A thick paper packet has the chance of even being completely wet and again is unable to prevent entering moisture into it. There are every chances of such type of containers being affected as stated above not by design but even by chance when in transit i.e. after the sample is taken by the Food Inspector in such containers and thereafter it reaches the laboratory for final analysis."
15. Learned Single Judge of Andhra Pradesh High Court in Food Inspector v. Gunturu Venkateswara Rao and Another, 2009 Cri.L.J has held that polythene bag cannot be called as container within the meaning of rule 14 of the Rules. Learned Single Judge has held as under:
"[5] Moreover, polythene bag cannot be called as container within the meaning of Rule 14 of the Rules. The rule mandates that the samples have to be drawn in clean glass containers (bottles). Admittedly, in the present case, PW1 the Food Inspector drew ::: Downloaded on - 15/04/2017 19:19:19 :::HCHP 12 samples into the empty plastic containers and thereby resorted to deliberate violation of Rule 14."
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16. There was breach of rule 14 of the Prevention of Food Adulteration Rules in the present case.
17. According to PW-1 L.D. Thakur, 600 grams of Arhar Dal was divided into three parts, meaning thereby of 200 gram of Arhar Dal was put in each sample, but it has come in the report of Director Central Food Laboratory that only approximately 150 grams sample of dal was received.
rt The sample sent for analysis does not conform to the quantity of Arhar Dal received by the Director Central Food Laboratory. The samples were also not sent as per the provisions of rules 17 and 18 of the Prevention of Food Adulteration Rules, 1995.
18. The prosecution has failed to prove its case against the accused for offence punishable under section 16 (1) (a) (1) of the Prevention of Food Adulteration Act beyond reasonable doubt.
19. Accordingly, in view of the analysis and discussion made hereinabove, there is no merit in the present appeal and the same is dismissed. Pending ::: Downloaded on - 15/04/2017 19:19:19 :::HCHP 13 application(s), if any, also stands disposed of. There shall, however, be no order as to costs.
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(Justice Rajiv Sharma), Judge.
5.11.2015 *awasthi* of rt ::: Downloaded on - 15/04/2017 19:19:19 :::HCHP