Punjab-Haryana High Court
Rajinder Kumar vs The State Of Haryana And Anr. on 22 February, 2008
Equivalent citations: (2008)2PLR409, 2008 CRI. L. J. (NOC) 985 (P. & H.), 2008 (3) AJHAR (NOC) 1088 (P. & H.)
JUDGMENT Sham Sunder, J.
1. This revision petitions is directed against the judgment dated 13.3.2007, rendered by the Court of Addl. Sessions Judge, Rohtak, vide which it dismissed the appeal of the revision-petitioner, against the judgment of conviction dated 20.7.2005, and the order of sentence dated 22.7.2005, passed by the Chief Judicial Magistrate, Rohtak, convicting him, for the offence, punishable under Section 16(1)(a)(i) of the Prevention of Food Adulteration Act, 1954, (hereinafter called as 'the Act' only), and sentenced him to undergo simple imprisonment for one year, and to pay a fine of Rs. 1,000/-, and in default of payment of the same, to undergo further simple imprisonment for a period of two months.
2. The facts, in brief, are that on 11.12.1996, Mr. M.L. Wadhwa, Government Food Inspector, accompanied by Dr. H.O. Manchanda, Medical Officer, General Hospital, Rohtak, inspected the premises of the petitioner at Rohtak. The petitioner was found in possession of 3 kgs. Chilly powder, for sale. The Government Food Inspection purchased 450 grams chilly powder, after completing the necessary formalities. The chilly powder so purchased, was divided into three equal parts, and put into three glass bottles, which were duly sealed, as per the provisions of law. One part of the sealed sample alongwith copy of Form-VII was sent to the Public Analyst, Haryana, for analysis. Remaining two parts of the same were deposited with the Local Health Authority, Rohtak. Report of the Public Analyst, Haryana came to the effect that the sample was adultered. Thereafter, the Government Food Inspection, launched prosecution against the petitioner, for the offence punishable under Section 16(1)(a)(i) of the Act.
3. On appearance of the petitioner/accused in the Court of Chief Judicial Magistrate, he moved an application, for sending the second part of the sample to the Central Food Laboratory. Accordingly, the second part of the sample of chilly powder, was sent to the Central Food Laboratory. Report of the Central Food Laboratory was also to the effect that the sampled not conform to the prescribed standards.
4. After recording the pre-charge evidence, charge under Section 16(1)(a)(i) of the Act, was framed against the accused petitioner, to which he pleaded not guilty and claimed trial. The prosecution, in support of its case, examined Mahant Lal, Government Food Inspection (Retd.) (PW-1), Dr. H.O. Manchanda, Medical Officer, General Hospital, Rohtak (PW-2), and Rohtas Kumar, an official of the Local Health Authority, Rohtak. Thereafter, the prosecution closed its evidence. The statement of accused under Section 313 Cr.P.C. was recorded. He pleaded raise implication, he however, did not lead any evidence, in his defence.
5. After hearing the Govt. Food Inspector, the Counsel for the accused, and, on going through the evidence, on record, the Court of Chief Judicial Magistrate, Rohtak, convicted and sentenced the accused, for the offence punishable under Section 16(1)(a)(i) of the Act, as stated hereinbefore.
6. Feeling aggrieved, an appeal was preferred by the accused/petitioner, which was dismissed by the Court of Addl. Sessions Judge, Rohtak, vide judgment dated 13.3.2007, as stated above.
7. Still feeling aggrieved, the instant revision-petition was filed by the accused/revision-petitioner.
8. I have heard the learned Counsel for the parties, and have gone through and carefully perused the evidence and record of the case.
9. The counsel for the revision-petitioner, at the very outset, contended that the Court of Chief Judicial Magistrate, Rohtak, acted against the provisions of Section 275 of the Code of Criminal Procedure, by not appending his signatures, on the deposition of Mahant Lal, Government Food Inspector (PW-1), recorded before the framing of charge, as also after framing the charge. He further contended, that under these circumstances, the statement of Mahant Lal, Government Food Inspector (PW-1), could not take into consideration, as the correctness thereof, could not be vouchsafed. He further contended that even the Appellate Court, failed to take into consideration, this important aspect of the matter, and wrongly relied upon the unsigned statement of the aforesaid witness. He further contended that once the unsigned statement of this witness, by the Presiding Officer, is taken off the record, the case of the prosecution, becomes highly doubtful. The submission of the Counsel for the revision-petitioner, in this regard, appears to be correct. The relevant provision, with regard to the recording of evidence in a warrant case, before a Magistrate, is Section 275 of the Code of Criminal Procedure, 1973, which reads as under:
275. Record in warrant-cases.- (1) In all warrant-cases tried before a Magistrate, the evidence of each witness shall, as his examination proceeds, be taken down in writing either by the Magistrate himself or by his dictation in open court or, where he is unable to do so owing to a physical or other incapacity, under his direction and superintendence, by an officer of the Court appointed by him in this behalf.
(2) Where the Magistrate causes the evidence to be taken down, he shall record a certificate that the evidence could not be taken down by himself for the reasons referred to in Sub-section (1).
(3) Such evidence shall ordinarily be taken down in the form of a narrative, but the Magistrate may, in his discretion take down, or cause to be taken down, any part of such evidence in the form of question and answer.
(4) The evidence so taken down shall be signed by the Magistrate and shall form part of the record.
9-A. A plain reading of this provision clearly goes to reveal that the evidence so taken down by the concerned Magistrate, shall be signed by the Magistrate, and shall form part of the record. Only after the evidence, so taken down, by the Magistrate, if signed by him, that it can form part of the record, and not otherwise. Otherwise, unsigned deposition of a witness, by a Presiding Officer, can be said to be merely a waste paper, on which no reliance can be placed, to come to a conclusion, to prove the guilt of the accused. It was, Mahant Lal, Government Food Inspector (PW-1), who allegedly took sample of chilly powder, from the shop of the revision - petitioner. It was, he, who allegedly divided the sample into three parts, and put the same into glass bottles. It was, he, who allegedly sent one portion of the sample, to the Public Analyst, for analysis. It was, he, who allegedly launched prosecution, against the accused/revision-petitioner. In the absence of his legally admissible evidence, on record, all these facts remain unproved. Non-signing of the deposition of a witness, by a Magistrate, could not be said to be a mere irregularity, which could be cured. It was an illegality, committed by the concerned Judicial Officer. Even the Appellate Court, while hearing the appeal, failed to take notice of this illegality, committed by the Chief Judicial Magistrate, and thus, miscarriage of justice occasioned. Since the unsigned deposition by the Presiding Officer of Mahant Lal, Government Food Inspector (PW-1), was required to be ignored, being not legally admissible, it could be said, as if he was not examined, as a witness, by the prosecution. The case of the prosecution on account of the aforesaid reason, became doubtful, the benefit whereof, shall go to the revision-petitioner/accused. The submission of the Counsel for the revision-petitioner, in this regard, carries substance, and is accepted.
10. It was next submitted by the Counsel for the revision -petitioner that the sample was not taken, in accordance with the relevant mandatory rules, as a result whereof, it could not be said that it was adulterated. The submission of the Counsel for the revision-petitioner, in this regard, appears to be correct. According to Rule 14 of the Prevention of Food Adulteration Rules, 1955 (hereinafter called as 'the Rules' only), samples of food for the purpose of analysis shall be taken in clear dried bottles or jars or in other suitable containers, which shall be closed sufficiently tight, to prevent leakage or evaporation, or in the case of dry substance, entrance of moisture and shall be carefully sealed. It is settled principle of law, that the report of expert i.e. Central Food Laboratory, in respect of the second sample of the food article, shall supersede the report of the Public Analyst. According to Ex.PF, report of the Central Food Laboratory, the same showed presence of non-permitted oil soluble colours and, thus, did not conform to the standards of chilly powder as per the Rules. Now lets see, as to whether, the ample, in this case, was taken in a proper manner, and in accordance with the relevant rules, so as to eliminate the possibility of element of presence of any foreign material or colour, in the container, in which the same was taken. The only evidence, in this regard, which remains with the Court for consideration is that of Dr. H.O. Manchanda, Medical Officer, Government Hospital, Rohtak. During the course of cross-examination, it was stated by Dr. Manchanda, that the sample of the chilly powder was put into a paper envelope, and thereafter, it was weighed. It was further stated by him, during the course of cross-examination, that the sample was taken from the open tin. It was further stated by him that, thereafter, the sample of the chilly powder was put into bottles, but the same were not cleaned, in his presence. The sample was taken with a ladle, and the same was also not cleaned, before using the same. The prosecution was required to prove beyond a reasonable doubt, that the paper envelope, in which, in the first instance, the sample of chilly powder was put, from the tin, in which the same was earlier lying, was not smeared with any colour or colouring material and was completely clean. It was also required of the prosecution to prove beyond a reasonable doubt, that the ladle, with which the chilly powder, was taken from the tin, and put in the paper envelope, in the first instance, was cleaned, and was not smeared with any colour or colouring material. It was also required of the prosecution, to prove beyond a reasonable doubt, that the bottles, in which ultimately, the sample after dividing into portions, was put from the envelope, were dry and clean and were not smeared with any colour or colouring material. Since, there is not even a whisper, in the statement of Dr. H.O. Manchanda, on the aforesaid aspects of the matter, it could be said that the sample was not taken, in accordance with the provisions of Rule 14 of the Rules ibid. Since the possibility of the paper envelope, having the present of some colour or colouring material, in which initially the sample of chilly powder was put, and the ladle, with which it was taken, from the tin, having the presence of some colour or colouring material, and the bottles, in which it was ultimately put, having the presence of colour or colouring material, could not be ruled out, the veracity of the report of the Central Food Laboratory, in this regard, could not be vouchsafed, that the sample did not conform to the standards, laid down, as the chilly powder showed the presence of non-permitted oil soluble colours. The Courts below, failed to take into consideration, this important aspect of the matter, as a result whereof, miscarriage of justice occasioned. The submission of the Counsel for the revision-petitioner, carries substance, and is accepted.
11. It was next contended by the Counsel for the revision-petitioner, that there was even no evidence, on the record, that the second sample, which was allegedly sent to the Central Food Laboratory for re-analysis, by the Court of the Chief Judicial Magistrate, was the same, as was retained by the Local Health Authority. He further contended that there was no evidence, on the record, that the specimen impression of the seal, was separately sent to the Director, Central Food Laboratory, so as to enable him, to compare the alleged seals, on the sample parcel, with the specimen seal. Rule 4 of the Rules, relating to the analysis of the food samples, reads as under:
Analysis of food samples.- (1) (a) Samples of food for analysis under Sub-section (2) of the Section 13 of the Act shall be sent either through a Messenger or by registered post in a sealed packet, enclosed together with a memorandum in Form I in an outer cover addressed to the Director.
(b) Samples of food for analysis under Sub-section (2) of Section 6 of the Act or under Clause (a) of rule 3 shall be sent either through a Messenger or by registered post in a sealed packet enclosed together with a memorandum in Form I-A in an outer cover addressed to the Director.
(2) The container as well as the outer covering of the packet shall be marked with a distinguishing number.
(3) A copy of the memorandum and a specimen impression of the seal used to seal the container and the cover shall be sent separately by registered post to the Director.
(4) On receipt of a package containing a sample for analysis, the Director or an officer authorized by him, shall compare the seals on the container and the outer cover with specimen impression received separately and shall note the condition of the seals thereon.
(5) After test or analysis, the certificate thereof shall be supplied forthwith to the sender in Form II.
(6) The fees payable in respect of such a certificate shall be (Rs. 1,000/-) per sample of food analysed.
(7) Certificates issued under these rules by the Laboratory shall be signed by the Director.
(8) The fee payable in, respect of analysis of samples of imported food analysed in any designated laboratory shall be Rs. 3,000 per sample payable by the importer.
11-A. Rule 4(4) of the Rules ibid reveals that on receipt of package containing a sample for analysis, the Director or an officer authorised by him shall compare the seals on the container and the outer cover with specimen impression, received separately, and shall note the condition of the seals thereon. Such an exercise could only be undertaken, by the concerned Officer of the Directorate of Central Food Laboratory, had the sample impression of the seal been sent to him. In the instant case, on 29.3.1997, when the accused appeared in the Court, he moved an application under Section 13(2) of the Act, for sending the second portion of the sample, to the Central Food Laboratory. Notice of this application was issued to the Local Health Authority for 25.4.1997. On 25.4.1997, one Rohtas, Clerk, Local Health Authority, appeared and brought a portion of the sample. His statement was recorded, but it was not signed by the Chief Judicial Magistrate. Thereafter, the statement of Rajinder Kumar, accused, was recorded, but the same also does not bear the signatures of the Chief Judicial Magistrate, Rohtak. Thereafter, an order was passed by the Chief Judicial Magistrate, for sending one portion of the sample to the Director, Central Food Laboratory, and return of the third portion of the sample to Rohtas, Clerk, in the office of the Local Health Authority, Rohtak. This order also does not bear the signatures of the Chief Judicial Magistrate. Nothing was recorded, in this order that sample impression of the seal be separately sent through special messenger in a sealed cover or in a registered cover. No authenticity to the alleged statements of Rohtas and Rajinder Kumar, as also the order dated 25.4.1997, passed by the Chief Judicial Magistrate, could be attached, the same being unsigned. The possibility of incorporating the statements of Rohtas, Clerk, in the office of the Local Health Authority, Rohtak, Rajinder Kumar, accused, and the order dated 25.4.1997, later on could not be ruled out. No doubt, a presumption of correctness is attached to the judicial acts, but only if the same are performed, in a proper manner, in accordance with the relevant provisions of law and the rules. Such a presumption is rebuttable. In this case, the unsigned statements and the order dated 25.4.1997 referred to above, are sufficient to rebut the presumption. This also exhibits the performance of Judicial functions, by the concerned Chief Judicial Magistrate, in a perfunctory manner. Had from the order dated 25.4.1997, it been evident that sample impression of the seal was separately sent and had sample impression of the seal so sent, been retained in the Court of the Chief Judicial Magistrate, it would have been said that the same was sent and compared by the Central Food Laboratory.
12. When there is no order of the Court sending the specimen impression of the seal, to the Central Food Laboratory, it is not known, as to from which source, and from which document, it came to be recorded in Ex.PF that the seals, on the sample, tallied with the specimen impression of the seal. In the absence of any evidence, in that regard, it could not be said with authenticity that the sample, which was sent to the Central Food Laboratory, related to the present case; that it was duly sealed and that the see's thereon tallied with the sample seal. It, therefore, could not be said that the second sample, of this case, which was allegedly sent, to the Central Food Laboratory was found to be adulterated. Under these circumstances, the conviction and sentence of the revision-petitioner, could be held to be illegal.
13. The Courts below failed to take into consideration the infirmities, irregularities and the illegalities, indicated in the foregoing paragraphs. Had the same been taken into consideration, the result would have been different. The judgment of conviction and the order of sentence, rendered by the Court of the Chief Judicial Magistrate, and confirmed by the Court of the Addl. Sessions Judge, Rohtak, vide judgment dated 13.3.2007, being illegal and perverse, are liable to be set aside.
14. For the reasons recorded hereinabove, the revision-petition is accepted. The judgment of conviction dated 20.7.2005, and the order of sentence dated 22.7.2005, rendered by the Court of the Chief Judicial Magistrate, and the judgment dated 13.3.2007, rendered by the Court of Addl. Sessions Judge, Rohtak, are set aside. The petitioner/accused is acquitted of the charge, framed against him. He is discharged of his bail bonds.