Himachal Pradesh High Court
State Of H.P vs Chaman Lal And Another on 26 October, 2016
Author: Sureshwar Thakur
Bench: Sureshwar Thakur
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA .
Cr. Appeal No. 113 of 2007
Decided on : 26.10.2016
State of H.P. .....Appellant.
of
Versus
Chaman Lal and another .....Respondents.
Coram
rt
The Hon'ble Mr. Justice Sureshwar Thakur, Judge.
Whether approved for reporting?1 Yes.
For the Appellant: Mr. Vivek Singh Attri, Dy. A.G. For the Respondent: Mr. Virender Kanwar, with Mr. Raman Prashar, Advocate.
_______________________________________________________ Sureshwar Thakur, Judge, Oral The instant appeal stands directed by the State of Himachal Pradesh against the impugned judgment rendered on 26.9.2006 by the learned Sub Divisional Judicial Magistrate, Arki, District Solan, H.P. in Criminal Case No. 32/3 of 2001, whereby 1 Whether reporters of the local papers may be allowed to see the judgment?
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the learned trial Court acquitted the respondents (for short .
'accused') for the offences charged.
2. The brief facts of the case are that on 16.12.2000, Food Inspector, S.C. Joshi inspected the premises of Chaman Lal Malhotra, proprietor of General Merchant and Confectionary of Works at Kunihar at about 1.20 p.m. where he was found rt conducting the business of the shop and at the time of inspection he was having 170 sealed packets of Glucose-V-Biscuits of 250 grams each in his possession meant for sale to the general public for human consumption, which were manufactured by 'Surya Food and Agro Limited, Noida, Priya Gold Industries (India) Ltd, Noida'. After disclosing his identity being Food Inspector, he served notice to accused No. 1 declaring his intention to take the sample of sealed Glucose-V-Biscuits out of these sealed packets and purchased six sealed packets of Glucose-V Biscuits of 250 grams each against the payment of Rs. 48/- as a sample for analysis. At the time of taking sample, accused No. 1 disclosed to the Food Inspector that he has purchased the said biscuits from M/s Shashank Enterprises, The Mall, Solan vide Bill No. ::: Downloaded on - 15/04/2017 21:26:59 :::HCHP ...3...
3521, dated 25.11.2000 under Section 14-A. So, a subsequent .
notice under Section 14-A was sent to accused No. 2 under the registered cover. After completing all codal formalities and on conclusion of the investigation into the offence, allegedly committed by the accused challan was prepared and filed in the of Court.
3. rt Notice of accusation stood put to the accused by the learned trial Court for theirs committing offences punishable under Sections 16(1)(a)(i) read with Section 7(ii) of the Prevention of Food Adulteration Act, 1954 (hereinafter referred to as the Act) to which they pleaded not guilty and claimed trial.
4. In order to prove its case, the prosecution examined 3 witnesses. On closure of prosecution evidence, the statements of the accused under Section 313 of the Code of Criminal Procedure, were recorded in which they pleaded innocence and claimed false implication. They did not choose to lead any evidence in defence.
5. On an appraisal of evidence on record, the learned trial Court returned findings of acquittal in favour of the accused.
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6. The learned Additional Advocate General has concertedly .
and vigorously contended qua the findings of acquittal recorded by the learned trial Court standing not based on a proper appreciation of evidence on record, rather, theirs standing sequelled by gross mis-appreciation by it of the relevant material of on record. Hence, he contends qua the findings of acquittal rt being reversed by this Court in the exercise of its appellate jurisdiction and theirs being replaced by findings of conviction.
7. The learned counsel appearing for the respondents has with considerable force and vigour contended qua the findings of acquittal recorded by the Court below standing based on a mature and balanced appreciation of evidence on record by the learned trial Court and theirs not necessitating interference, rather theirs meriting vindication.
8. This Court with the able assistance of the learned counsel on either side has with studied care and incision, evaluated the entire evidence on record.
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9. The accused respondent No.3 Purshotam Julka died .
during the pendency of the appeal before this Court. Hence, the prosecution case against him stands abated.
10. The Food Inspector concerned during the course of his of inspecting the commercial premises of accused/respondent No.1 purchased from him six packets of biscuits weighing 250 grams rt each, purchase whereof stands displayed in Ext.P-2. The aforesaid food item was dispatched to the public analyst concerned whereupon he recorded an opinion of the batch number borne thereon being illegible besides the month and year of the manufacture or its packing remaining un-recited therein.
Consequently, under the apposite report prepared by the public analyst concerned recorded in sequel to his subjecting the aforesaid food item to examination, he concluded qua it being misbranded, in sequel thereto the accused respondent No.1 besides respondents No.2 and 3 respectively the retailer besides forwarding agent and the manufacturer of the relevant food item stood arrayed as accused. A notice of accusation stood put to them qua theirs infringing the provisions of Section 16(1)(a)(i) ::: Downloaded on - 15/04/2017 21:26:59 :::HCHP ...6...
read with Section 7(ii) of the Act. A thorough examination of the .
entire cross-examination to which the prosecution witnesses stood subjected to by the learned defence counsel unveils of theirs not standing put any apposite suggestion nor obviously any response upsurging in personification of the Food Inspector of concerned on inspecting the commercial premises of respondent rt No.1 his not under Ext.P-2 purchasing from respondent No.1 the relevant food product/food item in sequel whereto it is inevitable to conclude qua the defence neither concerting to repudiate nor it concerting to controvert the trite factum of the Food Inspector visiting the relevant commercial premises nor also it concerting to belie the factum of purchase of the relevant food item by the Food Inspector concerned from accused/respondent No.1. Also the evidentiary material as exists herebefore makes a loud pronouncement qua accused No. 2 and 3 respectively the forwarding agent and manufacturer of the misbranded food item not concerting to repudiate the factum of theirs being respectively the manufacturer or the forwarding agent qua the relevant food item vis.a.vis. accused respondent No.1.
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Consequently, the derivative therefrom is of theirs acquiescing to .
the factum of theirs respectively manufacturing besides being the forwarding agent qua the relevant food item vis.a.vis. respondent No.1. The learned trial Court on visiting the entire record had concluded qua with availability of independent witnesses in of proximity to the relevant commercial establishment of accused rt respondent No.1 yet their association in the relevant proceedings remaining unsolicited by the Food Inspector concerned staining the purchase by the Food Inspector concerned of the relevant food item from accused/respondent No.1. In sequel, thereto he concluded of the prosecution not succeeding in proving the charge against the accused. However, the aforesaid reason as purveyed by the learned trial Magistrate in his impugned order is ridden with gross perversity arising from his mis-appreciating the impact of purchase of the relevant food item by the Food Inspector concerned from the relevant Commercial premises occurring under Ext.P-2 also its overlooking the trite factum of the defence not adducing any evidence in denial of the aforesaid purchase standing ridden with a vice of compulsion or duress ::: Downloaded on - 15/04/2017 21:26:59 :::HCHP ...8...
standing exercised upon accused No.1 by the Food Inspector .
concerned. For unavailability of the aforesaid evidence on record it was wholly inapt for the learned trial Magistrate to conclude qua with evident availability of independent witnesses in proximity of the relevant site of occurrence whereas theirs of remaining unjoined at the time contemporaneous to his rt purchasing the relevant food item from accused respondent No.1, ingraining the entire prosecution version with a blemish of untruthfulness qua the relevant facet predominantly when the probative sinew for reasons aforestated of Ext.P-2 remained unshattered. In sequel, thereof, the aforesaid reason as assigned by the learned trial Magistrate for recording an order of acquittal vis.a.vis the accused warrants interference.
11. Be that as it may, the learned trial Magistrate had while recording an order of acquittal vis.a.vis. the accused had postulated a reason qua the prosecution standing enjoined by the mandate of Section 17(1)(a)(i) and Section 17(1-a)(ii) to display with specificity in the apposite complaint the factum of commission of offences by the Company itself and/or any ::: Downloaded on - 15/04/2017 21:26:59 :::HCHP ...9...
nominated person or any other person who was incharge and .
was responsible to the Company for conducting its business wherefrom it concluded of with accused respondent No.1 standing neither averred in the apposite complaint nor evidence standing adduced qua his at the relevant time holding any of authorization as a nominee of the manufacturer of the relevant rt food item who stood arrayed as accused No.3 or his being incharge of its business besides responsible to the Company for conducting its business, recorded a conclusion of thereupon the charge against the accused respondent warranting its being construable to stand jettisoned. However, the aforesaid reason as stands assigned by the learned trial Magistrate is also extremely legally frail as it emanates on a gross mis appreciation by him of the relevant provisions engrafted in Section 17 of the Act, provisions whereof are applicable where the relevant purported misbranded or adulterated food item stands purchased or stands seized from the premises of Company (M/s Surya Food and Agro Limited, Sector-2, Noida ) besides only in the event of the aforesaid display there would be an onerous obligation cast ::: Downloaded on - 15/04/2017 21:26:59 :::HCHP ...10...
upon the Food Inspector concerned to while concerting to prove .
charges framed vis.a.vis. the accused under Section 17 of the Act, to aver in the apposite complaint the relevant ingredients encapsulated in Section 17 of the Act whereas with contra distinctivity herebefore qua the relevant purchase/seizure of the of mis branded food product or food item occurring on the Food rt Inspector concerned visiting/inspecting the retail commercial outlet of accused respondent No.1 who uncontrovertedly made its purchase/received it from accused No.2 latter whereof had received it from its manufacturer arrayed as respondent No.3, concomitantly did not entail upon the Food Inspector concerned to mete compliance to the provisions of Section 17 of the Act nor obviously he was enjoined to embody therein the ingredients thereof nor obviously any evidence in display of satiation thereof standing begotten was enjoined to be adduced by the prosecution. In sequel thereto the aforesaid reason as stands assigned by the learned trial Court to record an order of acquittal vis.a.vis. the accused suffers from a vice of infirmity arising from its misappraising the provisions of Section 17 of the Act.
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12. The learned trial Magistrate on the anvil of a .
verdict of the Hon'ble Apex Court reported in Dwarka Nath and another vs. Municipal Corporation of Delhi, 1971 AIR 1844 wherein the Hon'ble Apex Court had declared ultra vires Rule 32(b) of the Prevention of Food Adulteration Rules, relevant of portion whereof stands extracted hereinafter, rt "23. We are not inclined to accept the contention of Mr. Manchanda that Clause (b) of Rule 32 is beyond the rule making power of the Central Government under Section 23(1)(d) of the Act. It is well known that in many cases in business the name and address of a manufacturer or importer or vendor or packer has become associated with the character, quality or quantity of the article and as such we are of the opinion that Clause
(b) of Rule 32 is a valid rule."
On anvil of its enactment being beyond the ambit of the rule making power of the relevant authority vice whereof ingraining it emanating on emergence of transgression of the mandate of Section 23 of the Act whereupon the trial Magistrate recorded a ::: Downloaded on - 15/04/2017 21:26:59 :::HCHP ...12...
conclusion of the report of the public analyst concerned holding .
therewithin portrayals of the relevant food item/food product holding a vice of misbranding, not warranting acceptance, wherefrom it concluded of the accused standing entitled to an order of acquittal. The reliance as placed by the learned of Magistrate upon the aforesaid verdict of the Hon'ble Apex Court rt emanates on his grossly misappreciating its subtle nuance tritely the one qua the relevant Rule 32(b) (e) of the 'Rules' enjoining upon the relevant manufacturer to on the label of the relevant food product item disclose therein the name and business address of the importer or packer also enunciate therein the batch number either in English or in Hindi or in combination, not carrying forward the salutary spirit of the Act qua its informing the consumer qua the purity or the freshness of the product, qua factum whereof the relevant customer would become enlightened only when the label of the relevant food product holds portrayals qua the date and year of its manufacture besides holds reflections therein qua the date of expiry of the food product wherefrom reiteratedly the relevant consumer would stand ::: Downloaded on - 15/04/2017 21:26:59 :::HCHP ...13...
apprised qua the freshness of the product besides would be .
baulked to purchase it for precluding injury to his health.
Consequently, with contra distintivity occurring in the relevant Food Adulteration Rules vis. a vis. the nature of misbranding indulged by accused respondent No.3 wherefrom respondent of No.1 purchased the misbranded food item/food product without rt his concerting to discover the factum of misbranding renders, all the accused from whom the relevant food item stood transmitted in an unbroken chain upto accused respondent No.1 wherefrom the Food Inspector purchased the relevant food product, to be vicariously liable for infringement of the relevant penal provisions.
13. For the reasons which have been recorded hereinabove, this Court holds that the learned trial Magistrate has not appraised the entire evidence on record in a wholesome and harmonious manner apart therefrom the analysis of the material on record by the learned Magistrate suffers from perversity or absurdity of mis-appreciation and non appreciation of evidence on record. In sequel thereto, I find merit in this appeal, which is accordingly allowed and the judgement of acquittal rendered by ::: Downloaded on - 15/04/2017 21:26:59 :::HCHP ...14...
the learned trial Magistrate is quashed and set-aside. Accordingly, .
the accused No. 1 and 2 are held guilty for theirs committing offences punishable under Sections 16(1)(a)(i) read with Section 7(ii) of the Prevention of Food Adulteration Act, 1954.
14. Let the accused/respondents No. 1 and 2 be of produced before this Court on 16/11/2016 for theirs being heard rt on the quantum of sentence.
26th October, 2016. ( Sureshwar Thakur ) ™ Judge.
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