Himachal Pradesh High Court
State Of H.P vs Maharaj Kumar And Others on 9 December, 2016
Author: Sureshwar Thakur
Bench: Sureshwar Thakur
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA .
Cr. Appeal No. 434 of 2007 Reserved on: 22.11.2016 Decided on : 09/12/2016.
of
State of H.P. .....Appellant.
Versus
Maharaj Kumar and others
rt .....Respondents.
Coram
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 Respondents: Mr. Nimish Gupta, counsel, for respondent No.2.
Mr. Satyen Vaidya, Sr. Advocate with Mr. Vivek Sharma, Advocate, for respondent No.3.
Mr. K.D.Sood, Sr. Advocate with Mr.Sanjeev Sood & Mr.Ankit Aggarwal, Advocates for respondent No.4.
_______________________________________________________ 1 Whether reporters of the local papers may be allowed to see the judgment?
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.
Sureshwar Thakur, Judge The instant appeal stands directed by the State of Himachal Pradesh against the impugned judgment rendered on 25.07.2007 by the learned Chief Judicial Magistrate, Chamba, of District Chamba, Himachal Pradesh, in Complaint No. 80(A)-III of 2000, whereby he acquitted the respondents (for short 'accused') rt for the offences charged.
2. The brief facts of the case are that Food Inspector went to village Sahoo and purchased three packets of Bhoj Vanaspati on 25.2.2000 from accused Maharaj Kumar after disclosing her identity and showing her intention to take the sample for the purpose of analysis. The Food Inspector has paid Rs.45/- to the accused in the presence of witnesses. The sample of Bhoj Vanaspati packets so purchased were wrapped in three wrapping papers and thereafter pasted with gum and paper slip bearing code No.1334. The signatures of accused and witnesses were taken in such a manner that paper slip and wrapping paper both carried the part of the signatures according to the procedure.
One sealed packet of the sample of the Bhoj Vanaspati was sent ::: Downloaded on - 15/04/2017 21:43:16 :::HCHP ...3...
to the public/chemical analyst for analysis in a sealed wooden .
box with Form-VII under registered parcel. A copy of Form VII alongwith the specimen impression of the seal used to seal the packets of the sample was sent separately to the Public Analyst of vide separate registered letter and remaining two parts of the sample alongwith two copies of Form-VII with seal impression rt were also handed over to the Local Heath Authority, Chamba.
The Public Analyst, Kandaghat found the sample to be adulterated vide report No. 80 dated 6.4.2000. The Food Inspector submitted all the documents concerned of the case in the office of Chief Medical Officer, Chamba and obtained written consent to launch the prosecution against the accused under the Act. The Chief Medical Officer accorded the sanction. The Local Health Authority was informed separately regarding the launching of prosecution and accused was informed through registered post alongwith the copy of Public Analyst Report. The accused persons were summoned and supplied the copy of complaint and documents in compliance of Section 207 Cr.P.C. Upon consideration of complaint and documents there existed a prima ::: Downloaded on - 15/04/2017 21:43:16 :::HCHP ...4...
facie case against accused No.1. So notice of accusation was put .
to the accused under Section 16(1)(a)(i) read with Section 7(1) of the Prevention of Food Adulteration Act (hereinafter for short referred to as 'the Act') and also read over and explained to the of accused in Hindi, to which the accused person pleaded not guilty and claimed trial. The accused No.1 moved an application under rt Section 20A of the Act for impleading M/s K.V.Trading Company, Damtal as co-accused. The application of the accused was allowed by the Court on 7.10.2002 and M/s K.V.Trading Company Damtal was impleaded as co-accused in the present case to whom notice of accusation under Section 16(1)(a)(i) was put and this accused has also moved an application under Section 20-A of the Act to implead M/s Suraj Industries Sansarpur Terrace as co-
accused who has moved an application as co-accused and the application was duly allowed on 30.04.2003 and accused No. 3 and 4 were impleaded as co-accused in the present case to whom notice of accusation was put on 7.4.2004, under Section 16(1)(a)(i) read with Section 7(i) of the Act to which they pleaded not guilty and claimed trial. The nominee of Suraj ::: Downloaded on - 15/04/2017 21:43:16 :::HCHP ...5...
Industries Shri S.K.Uppadhaye moved an application under .
Section 13(2) of the Act for sending the second sample for analysis to Central Food Laboratory on 26.6.2003 which was duly allowed and the second sample was sent to Director Central Food of Laboratory, Mysore along with a memorandum containing specimen seal impression and the report of the Central Food rt Laboratory, Mysore was received by the Court on 28.10.2003.
After completing all codal formalities and on conclusion of the investigation into the offence, allegedly committed by the accused a complaint was prepared and filed in the Court.
3. Notice of accusation stood put to the accused by the learned trial Court for theirs committing offences punishable under Section 16(1)(a)(i) of the Act to which they pleaded not guilty and claimed trial.
4. In order to prove its case, the prosecution examined 4 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 ::: Downloaded on - 15/04/2017 21:43:16 :::HCHP ...6...
claimed false implication. They chose to lead evidence and .
examined two witnesses in their defence.
5. On an appraisal of the evidence on record, the learned trial Court returned findings of acquittal in favour of the accused.
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6. The learned Deputy Advocate General has concertedly and vigorously contended qua the findings of acquittal recorded rt 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 on record. Hence, he contends qua the findings of acquittal being reversed by this Court in the exercise of its appellate jurisdiction and theirs being replaced by findings of conviction.
7. The learned counsels appearing for the respondents have 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 it hence theirs not necessitating any interference, rather theirs meriting vindication.
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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.
9. The accused respondent No.1 Maharaj Kumar died of during the pendency of the appeal before this Court. Hence, the prosecution case against him stands abated.
10. rt Sample of Bhoj Vanaspati comprised in Ext.PW-3/A stood collected by the Food Inspector concerned from the premises of accused/respondent No.1. On its standing dispatched for analysis to the public analyst concerned whereat it stood subjected to analysis, the public analyst concerned in his opinion comprised in Ext.PW-1/A recorded therein the hereinafter extracted conclusions:-
"Examination of label:- All the required particulars are mentioned.
2. Appearance on melting: Clear, free from suspended and other foreign matter.
3. Taste and smell unobjectionable.
4. Staleness or rancidity absent.
5. Added colouring matter- Absent.
6. Moisture=0.024%
7. Melting point=38
8. Butro refractometer reading at 60=40.5.
9. Unsaponifiable matter =0.99% by weight.
10. Free fatty acids (calculated as oleic acid)=0.11%
11. Test for argemone oil= Negative.::: Downloaded on - 15/04/2017 21:43:16 :::HCHP
...8...
12. Baudouin test for sesame oil= negative 13. .
Test for mineral oil= negative. And I am of the opinion that the contents of the sample give negative baudouin test for sesame oil whereas it should be positive. The vanaspati should contain seasame oil in sufficient guantity to produce at least 2 red unit in a 1 cm. cell on a Lovibond scale as tested by the prescribed procedure. The sample of vanaspati is therefore adulterated."
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11. Thereafter the relevant sample stood also dispatched to rt the Central Food Laboratory, Mysore, whereat on its standing subjected to analysis, its apposite opinion embedded in its apposite report encapsulated in Ext.PA displays qua its standing positive for rancidity besides negative for baudouin test also therewithin a portrayal exists of its holding therewithin fatty acids beyond the permissible limits. Significantly, the retailer besides the manufacturer on the latters' subsequent impleadment alongwith the retailer stood acquitted for the charges whereagainst they stood subjected to face trial before the learned CJM concerned. The legality of the findings recorded by the learned Chief Judicial Magistrate qua the sample of the relevant Food Item on its initially standing subjected to analysis before the Public Analyst, Himachal Pradesh, Kandaghat besides ::: Downloaded on - 15/04/2017 21:43:16 :::HCHP ...9...
subsequently to analysis before the Central Food Laboratory, .
Mysore, at the latter laboratory whereat on its standing subjected to analysis, an opinion emanated therefrom qua its standing tested positive for rancidity besides its holding fatty contents of beyond the permissible limits do not entail upon this Court for pronouncing their reversal, significantly when the aforesaid rt demerits occurring in the relevant sample as stand unveiled in the opinion embedded in Ext.PA stood noticed to exist therein after three years elapsing since the collection of the sample of the relevant food item by the Food Inspector concerned from the retail outlet of respondent No.1 besides when the relevant demeritorious occurrence therein or the occurrence therein of fatty acids beyond the permissible limit(s) remained unmanifested in the previous report of the public analyst concerned, opinion whereof embodied in Ext.PW-1/A stood pronounced in prompt sequel to its collection by the Food Inspector concerned from the retail outlet of respondent No.1 also when therewithin no presence therein of fatty acids beyond permissible limit(s) stands displayed therein whereupon obviously ::: Downloaded on - 15/04/2017 21:43:16 :::HCHP ...10...
it stood aptly concluded by the learned Chief Judicial Magistrate .
qua its occurrence therein hence spurring from a delay of three years occurring on its analysis standing made by the Central Food Laboratory, Mysore. The learned Deputy Advocate General has of yet with much force and vigour contended qua with the report of the public analyst concerned also the subsequent report of the rt Central Food Laboratory, Mysore consistently besides with inter se harmony spelling therein qua the sample of the relevant food item on standing subjected to baudouin test begetting the sequel of the relevant sample of the relevant food item displaying negativity qua its reaction vis.a.vis. baudouin test to which it stood subjected to whereupon on anvil of Section 2 sub section
(l) and (m) of the Act, which stands extracted hereinafter:
(l) if the quality or purity of the article falls below the prescribed standard or its constituents are present in quantities not within the prescribed limits of variability but which renders it injurious to health;
(m) if the quality or purity of the article falls below the prescribed standard or its constituents are present in quantities not within the prescribed limits of variability but which does not render it injuries to health;::: Downloaded on - 15/04/2017 21:43:16 :::HCHP
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He canvasses qua even if penal culpability on invocation of clause .
(l) thereof is unfastenable qua the accused/respondents arousable from the factum qua the presence of an imperative food ingredient standing detected therein to hold its presence of therein in a quantum beyond permissible limits also thereupon it rendering the relevant food item to be injurious to health, significantly rt when hereat the relevant presence beyond permissible limits of fatty acids in the relevant food item stands pronounced by this Court for reasons aforestated to not invite the inculpability of the accused/respondents qua infraction standing begotten qua the mandate of Section 2(l) of the Act yet dehors the aforesaid penal inculpability constituted in Clause (l) of Section 2 of the Act not warranting attraction vis.a.vis the accused/respondents, nonetheless the apt penal inculpability encapsulated in clause (m) of Section 2, provisions whereof arouse penal inculpability qua the accused/respondents dehors want of presence therein beyond permissible limits of a prohibited food item besides dehors its presence therein not being injurious to health rather conspicuously when the factum of ::: Downloaded on - 15/04/2017 21:43:16 :::HCHP ...12...
it's occurrence therein spurs from its being a statutory imperative .
constituent therein also when thereupon the quality or purity of the relevant food item besides its not falling upto the prescribed standards gets substantially affected, thereupon also the relevant of statutory penal inculpability of the accused/respondents stands attracted. Nowat when hereat with 'sesame' specifically standing rt displayed in Appendix A.19(x) of the Prevention of Food Adulteration Rules, (hereinafter referred to as 'the Rules') provisions whereof stand extracted hereinafter:-
"It shall contain raw or refined sesame (til) oil in sufficient quantity so that when the Vanaspati is mixed with refined groundnut oil in the proportion of 20:80, the colour produced by the Baudouin test shall not be lighter than 2.0 red unit in a 1 cm cell on a Lovibond scale."
to imperatively mark its presence therein i.e. in 'Vansapati' in a quantity sufficient for facilitating the holding of an efficacious/affirmative 'baudouin test' thereon whereupon the sample of 'Vanaspati' on standing tested would portray qua its quality or purity not falling below the prescribed standards enjoins its manufacturer to add 'sesame' in 'Vanaspati' within the ::: Downloaded on - 15/04/2017 21:43:16 :::HCHP ...13...
mandate of the afore extracted provisions. Before proceeding to .
adjudicate the aforesaid submission addressed herebefore by the learned Deputy Advocate General, reliance as stands placed by the learned Chief Judicial Magistrate upon the mandate recorded of by the Punjab and Haryana High Court in a judgment reported in Municipal Committee Amritsar Vs. Mehar Singh 1972 page 604 rt wherein the Punjab and Haryana High Court, has on anvil of the statement of the public analyst concerned which existed therebefore unraveling therein qua 'sesame' imported from the mediterranean region evincing no reaction to baudouin test, whereupon it blindfoldedly straightaway bereft of any evidence for sustaining the aforesaid factum recorded a conclusion qua the 'baudouin test' as stood carried hereat upon the relevant food item by the public analyst concerned in sequel whereto he opined qua its begetting the sequel of its standing tested negative qua yet thereupon no penal culpability standing attracted qua the accused herein. Consequently, the aforesaid reason meted by the learned Chief Judicial Magistrate to hold of the relevant food item on standing subjected to baudouin test its begetting the ::: Downloaded on - 15/04/2017 21:43:16 :::HCHP ...14...
sequel of its testing negative thereto by merely anvilling it qua .
hence with 'sesame' occurring in the sample of 'Vanaspati' hereat also standing imported from the mediterranean region by its relevant manufacturer hereat thereupon it too on facing the of relevant baudouin test, a result in the negative ensuing therefrom is palpably per se highly surmisal, conspicuously when hereat neither any rt articulation stood bespoken by the accused/respondents in their respective statements recorded under Section 313 Cr.P.C qua the manufacturer hereat importing 'sesame' from the mediterranean region nor also any suggestion in consonance therewith stood put to the prosecution witnesses.
12. Apparently the reasons recorded by the Punjab and Haryana High Court in Municipal Committee, Amritsar (supra) while making an interpretation of clauses (l) and (m) of Section 2 of the 'Act' qua with sesame merely being a facilitator for holding the baudouin test upon the relevant sample of 'Vanaspati' whereas it not evidently standing displayed by the echoings made therebefore by the expert concerned thereat qua it being injurious to health thereupon it concomitantly concluded qua the ::: Downloaded on - 15/04/2017 21:43:16 :::HCHP ...15...
sample of 'Vanaspati' would hence stand unrendered to be an .
adulterated food item reiteratedly merely on the holding of 'baudouin test' on the sample of 'Vanaspati' bespeakings emanating therefrom qua its begetting the sequel of its testing of negative thereto also visibly stand generated from its misconstruing the import of Appendix A.19(x) of the Rules rt whereupon the aforesaid reason propounded therein does not constitute a binding adhereable rule nor a ratio decidendi contrarily its overlooking the provisions engrafted in Appendix A.19(x) of the Rules, renders hence the verdict of the Punjab & Haryana High Court (supra) holding therewithin the aforestated reasons for nullifying qua sample of 'Vanaspati' failing the 'baudouin test' being visibly per incuriam.
13. The aforestated Appendix A.19(x) of the Rules casts a statutory obligation upon the manufacturer to while manufacturing 'Vanaspati' to add therein 'sesame' in a quantity sufficient for thereupon its efficaciously/affirmatively facilitating the holding of "baudouin test" thereon for thereupon within the ambit of clause (m) of Section 2 of the Act, the purity besides ::: Downloaded on - 15/04/2017 21:43:16 :::HCHP ...16...
quality of 'Vanaspati' standing efficaciously/affirmatively tested, .
reiteratedly when thereunder besides in the afore extracted relevant portion of the Rules 'sesame' stands statutorily constituted to be an apt facilitator for the public analyst of concerned for an apt determination standing recorded by him qua the quality or purity of Vanaspati also thereupon the mere factum of its rt presence therein in a quantum defacilitating an efficacious/affirmative holding of baudouin test upon the relevant sample of 'Vanaspati' dehors its minimal inapt statutorily prescribed presence therein not begetting any injury to the health of the consumers would yet invite penal inculpability vis.a.vis. the accused respondents.
13. Be that as it may, the prosecution stood enjoined to adduce cogent evidence in display of the relevant manufacturer in his manufacturing 'Vanaspati' his prior thereto eliciting an opinion from the expert qua the quantum of presence of 'sesame' therein also evidence stood enjoined to be adduced by the prosecution qua the manufacturer of 'Vanaspati' despite eliciting the report of the expert concerned qua the quantum of ::: Downloaded on - 15/04/2017 21:43:16 :::HCHP ...17...
sesame standing added therein besides its addition therein being .
construable to be in a quantity sufficient for its hence facilitating the holding of "baudouin test" thereon for thereupon its quality besides purity standing tested, his yet infracting the mandate of of the apposite expert besides the prosecution stood enjoined to adduce material comprised in its placing on record the 'label' rt borne on the relevant parcel of 'Vanaspati' displaying therein the quantum of presence of 'sesame' therein also thereupon it would prove the trite factum qua the quantum of presence of sesame therein holding a quantity insufficient whereupon obviously the holding of an efficacious/affirmative 'baudouin test' thereon stood defacilitated. However, the prosecution has abysmally failed to adduce the aforesaid relevant best evidence. In aftermath, the effect of the aforesaid omission(s) is qua an inference standing enjoined to be erected by this Court qua the manufacturer hereat of 'Vanaspati' not infracting the opinion obtained by him from the expert concerned qua the quantum of sesame to be added to 'Vanaspati' nor also if on the holding of baudouin test on the relevant sample of 'Vanaspati' it sequelled the fate of its testing ::: Downloaded on - 15/04/2017 21:43:16 :::HCHP ...18...
negative thereupon marking the factum qua quantum of its .
presence therein being a quantity insufficient for thereupon its facilitating the holding of an efficacious affirmative 'baudouin test' thereon also thereupon if the 'baudouin test' has failed of vis.a.vis. the sample of Vanaspati hereat, failure thereof not on anvil of clause (m) of Section 2 attracting penal inculpability rt vis.a.vis. the accused respondents, even if concomitantly thereupon the relevant sample of 'Vanaspati' stood rendered to not conform to the apposite standards of its quality or purity.
Significantly reiteratedly when this Court has erected the aforesaid inference qua the manufacturer not infracting the mandate of the expert concerned comprised in his not in conformity therewith adding the prescribed quantum of 'sesame' therein unless evidence stood adduced comprised in the prosecution also proceeding to prosecute the expert concerned who purveyed an opinion to the manufacturer marking therein the quantum of presence of 'sesame' in 'Vanaspati' or qua the quantum of its addition therein by its manufacturer whereas his apposite prescriptions qua the quantum of its presence therein or ::: Downloaded on - 15/04/2017 21:43:16 :::HCHP ...19...
its addition therein being in a quantum sufficient or insufficient .
for respectively efficaciously facilitating the holding of an affirmative 'baudouin test' thereon or defacilitating its holding thereon alone constituted the bench mark for underscoring qua of its holding tandem with the apposite regulatory mechanism qua the quantum of 'sesame' to be added in the sample of 'Vanaspati' rt hereat. The prosecution was also enjoined to with the apposite facilitations of the Court concerned make the relevant collections from the apposite record maintained by the manufacturer holding pronouncements therein qua the manufacturer infracting the apposite mandate of the expert concerned or his not obtaining the opinion of the expert concerned qua the quantum of 'sesame' to be added in the relevant food item besides qua the opinion purveyed by the expert to the manufacturer qua the quantum of sesame to occur in Vanaspati not conforming to the standardized norms qua its standing construed to efficaciously promote the holding of an affirmative 'baudouin test' thereon whereas the aforesaid constituted the germane best evidence qua the relevant facet. In addition, since the manufacturer is evidently not an ::: Downloaded on - 15/04/2017 21:43:16 :::HCHP ...20...
expert qua quantum of presence or addition of sesame in .
'Vanaspati' besides obviously qua the quantum of sufficiency or insufficiency of its presence therein hence reiteratedly enjoined the prosecution to collect the opinion of the expert concerned.
of However, the prosecution has failed in the aforesaid endeavour.
In aftermath, the quantum of addition of 'sesame' in 'Vanaspati' rt by its manufacturer hereat even if is in an insufficient quantity thereupon, the manufacturer cannot be rendered penally inculpable. Corollary thereof is when the entire responsibility stands cast upon the expert concerned who purveyed an opinion to the manufacturer of 'Vanaspati' for ensuring qua quantum of presence therein of sesame being in a quantity sufficient for thereupon it efficaciously facilitating the holding of an affirmative baudouin test thereon whereas the relevant elicitations qua the factum aforesaid remain uncollected by the prosecution. In sequel therefrom it would be unbefitting to conclude of the manufacturer of Vanaspati intentionally adding sesame in Vanaspati in an insufficient quantity nor it would be befitting to conclude of his thereupon intentionally defacilitating the holding ::: Downloaded on - 15/04/2017 21:43:16 :::HCHP ...21...
an apposite affirmative 'baudouin test' thereon contrarily it is to .
be concluded of his not possessing the relevant mens rea for any liability qua any penal inculpation standing fastened upon him.
13. For the reasons which have been recorded of hereinabove, this Court holds that the learned trial Court apart from the facets afore-stated has appraised the entire evidence on rt record in a wholesome and harmonious manner apart therefrom the analysis of the material on record by the learned trial Court does not suffer from any perversity or absurdity of mis-
appreciation and non appreciation of evidence on record, rather it has aptly appreciated the material available on record.
14. In view of the above, I find no merit in this appeal, which is accordingly dismissed. In sequel, the impugned judgment is affirmed and maintained. Record of the learned trial Court be sent back forthwith.
9th December, 2016. ( Sureshwar Thakur ) ™ Judge.
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