Himachal Pradesh High Court
Sh. Sunil Thakur vs State Of Himachal Pradesh Through Food on 13 August, 2021
Author: Sureshwar Thakur
Bench: Sureshwar Thakur
1
Reportable
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
ON THE 13th DAY OF AUGUST, 2021
.
BEFORE
HON'BLE MR. JUSTICE SURESHWAR THAKUR
CRIMINAL REVISION NO. 118 of 2010
Between:
1. SH. SUNIL THAKUR, S/O SH. KISHAN CHAND,
MANAGER,M/S NEW PREM DHABA AND SWEET
SHOP, CHAILA, TEHSIL THEOG, DISTRICT SHIMLA,
H.P.
2. SH. TULSI RAM, S/O SH. AMAR SINGH, PROPRIETOR
OF M/S NEW PREM DHABA AND SWEET SHOP,
CHAILA, TEHSIL THEOG, DISTRICT SHIMLA, H.P.
...PETITIONERS
(BY MS. ARUNA CHAUHAN, ADVOCATE)
AND
STATE OF HIMACHAL PRADESH THROUGH FOOD
INSPECTOR, DISTRICT SHIMLA, H.P.
...RESPONDENT
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2
(BY SH.HEMANT VAID ADDITIONAL ADVOCATE
GENERAL WITH MR. VIKRANT CHANDEL AND MR
GAURAV SHARMA, DEPUTY ADVOCATE GENERALS)
.
This petition coming on for orders this day, the
Court passed the following:
ORDER
The learned Judicial Magistrate, 1st class, Theog, District Shimla, upon case No. 13-3 of 2006, as arose from a complaint made by the Food Inspector, under section 16(1)(a)(i) of the Prevention of Food Adulteration Act, 1954, (hereinafter referred to as, "the Act"), made an order of conviction upon the accused. Through a separate order drawn on 6.9.2007, he sentenced the accused to suffer simple imprisonment, of six months each, and, also sentenced them to pay a fine of Rs. 1000/- each, for the charge drawn under Section 16(1)(a)(i) of the Act. The learned Judicial Magistrate, through the afore drawn order also made a direction, that upon default of the accused, depositing the afore imposed fine upon them, thereupon, they shall further undergo simple imprisonment, for one month. However, the period of ::: Downloaded on - 31/01/2022 22:52:55 :::CIS 3 confinement, already undergone by the convicts during investigation and trial, was ordered to be set off, against the afore imposed sentence of imprisonment, upon each .
of the accused.
2. The verdict made by the learned Judicial Magistrate, 1st Class, Theog, District Shimla, was appealed by the aggrieved, before the learned Additional Sessions Judge, Shimla, the latter, upon Criminal Appeal No. 28-s/10 of 2007, made a verdict of dismissal, and, proceeded to affirm both the afore verdicts, of conviction and, the consequent therewith sentence(s), (supra) as became imposed, upon the accused, by the learned Judicial Magistrate, 1st Class, Theog, Shimla.
Consequently, aggrieved from the concurrently recorded verdicts(supra), by both the learned Courts below, the accused/convicts instituted the instant Criminal Revision before this Court.
3. Ext. P-1 is the notice issued by the Food Inspector, hence evincing his intention to purchase the sample(s) of Milk, for the purpose of analysis. Ext. P-2 is the receipt, issued by the accused. Ext. P-3, is spot memo. Vide ::: Downloaded on - 31/01/2022 22:52:55 :::CIS 4 memo, Ext. P-4, the sample alongwith form No. 7 was sent to the Public Analyst, Kandaghat, and therealongwith sample of seal, Ext. P-5 was also sent. He .
deposited it, with the Local Health Authority, Shimla, and, Ext. P-6, is the receipt, as received by the Food Inspector, from the Public Analyst, Kandaghat, as, appertaining to his depositing thereat, the collected samples, vide memo Ext. PW3/A. The report of the Public Analyast, is borne in Ext. P-7, and, was received through Public Health Authority, Shimla, vide Ext. P-8. In the afore report, an opinion occurs that the milk fat content of the sample concerned is 2.56%, and, hence breaches the statutorily prescribed standard of 4.5%.
4. The Food Inspector applied to the CMO, Shimla, for the granting of sanction for prosecuting the accused/convicts. The CMO concerned, through Ext. P-
10, granted the aforesaid sanction. Through, letter Ext.
PW2/A, addressed to the Local Health Authority, Shimla, to the Food Inspector concerned, an intimation was received from the CMO concerned, for prosecuting the accused, and, it also carried a request to send a notice ::: Downloaded on - 31/01/2022 22:52:55 :::CIS 5 under section 13(2) of the Prevention of Food Adulteration Act, to the accused. Consequently, the Local Health Authrority, Shimla, issued notice, borne in Ext,.
.
PW2/B to the accused, postal receipts whereof are Ext.
PW2/C and Ext. PW2/D. The learned trial Magistrate, after assessing the probative vigor of the testimonies of the prosecution witnesses concerned, hence made a conclusion that the echoing(s), carried in the complaint, as made by the Food Inspector concerned, were credible and proceeded to draw an verdict of conviction, and also, imposed the consequent therewith sentence(s) (supra), upon each of the accused.
5. As aforestated, the verdict made by the learned Judicial Magistrate concerned, became affirmed by the learned Additional Sessions Judge, Shimla, through the latter making a decision, on 6.5.2010, upon Criminal Appeal No. 28-s/10 of 2007.
6. From a perusal of the evidence on record, it is clear, that the prosecution witnesses concerned, deposed with consistency, with respect to the collection of samples, from the commercial establishment concerned, ::: Downloaded on - 31/01/2022 22:52:55 :::CIS 6 hence owned by the accused. The accused in their respectively recorded statements, under Section 313 of Cr. P.C., did not, dispute the factum of purchase by the .
Food Inspector concerned, of the samples of adulterated milk, from their premises. However, the only contention as addressed, before this Court, by the learned counsel for the revisionists, is that there is a patent violation of sub-section (2) of Section 13, of the Prevention of Food Adulteration Act, as well as of Rule 17 and of Rule 18 of the Prevention of Food Adulteration Rules. For appreciating the vigor of the afore submission, it is deemed necessary, to extract the mandate carried, in, the, relevant sub-Section (2) of Section 13 of the Act, mandate whereof is extracted hereinafter:
"(2) On receipt of the report of the result of the analysis under sub-section (1) to the effect that the article of food is adulterated, the Local (Health) Authority shall, after the institution of prosecution against the persons from whom the sample of the article of food was taken and the person, if any, whose name, address and other particulars have been disclosed under section 14A, forward, in such manner as may be prescribed, a copy of the report of the result of the analysis to such person or persons, as the case may be, informing such person or persons that if it is so desired, either or both of them may make an application to the court within a period of ten days from the date of receipt of the copy of the report to get the sample of the article of food kept by the Local (Health) Authority analysed by the Central Food Laboratory.::: Downloaded on - 31/01/2022 22:52:55 :::CIS 7
(2A) When an application is made to the court under sub-
section (2), the court shall require the Local (Health) Authority to forward the part or parts of the sample kept by the said Authority and upon such requisition being made, the said Authority shall forward the part or parts of the sample to the court within a period of five days from the date of receipt of .
such requisition.
(2B) On receipt of the part or parts of the sample from the Local (Health) Authority under sub-section (2A), the court shall first ascertain that the mark and seal or fastening as provided in clause (b) of sub-section (1) of section 11 are intact and the signature or thumb impression, as the case may be, is not tampered with, and despatch the part or, as the case may be, one of the parts of the sample under its own seal to the Director of the Central Food Laboratory who shall thereupon send a certificate to the court in the prescribed form within one month from the date of receipt of the part of the sample specifying the result of the analysis.
(2C) Where two parts of the sample have been sent to the court and only one part of the sample has been sent by the court to the Director of the Central Food Laboratory under sub-section (2B), the court shall, as soon as practicable, return the remaining part to the Local (Health) Authority and that Authority shall destroy that part after the certificate from the Director of the Central Food Laboratory has been received by the court: Provided that where the part of the sample sent by the court to the Director of the Central Food Laboratory is lost or damaged, the court shall require the Local (Health) Authority to forward the part of the sample, if any, retained by it to the court and on receipt thereof, the court shall proceed in the manner provided in sub-section (2B).
(2D) Until the receipt of the certificate of the result of the analysis from the Director of the Central Food Laboratory, the court shall not continue with the proceedings pending before it in relation to the prosecution.
(2E) If, after considering the report, if any, of the food inspector or otherwise, the Local (Health) Authority is of the opinion that the report delivered by the public analyst under sub-section (1) is erroneous, the said Authority shall forward one of the parts of the sample kept by it to any other public analyst for analysis and if the report of the result of the analysis of that part of the sample by that other public analyst is to the effect that the article of food is adulterated, the provisions of sub-sections (2) to (2D) shall, so far as may be, apply.] ::: Downloaded on - 31/01/2022 22:52:55 :::CIS 8 .
The learned counsel for the revisionists, argued with much vigor, before this Court, that a palpable breach, is visited upon sub-Section (2) of Section 13 of the Act, inasmuch as "after the institution of the prosecution, against the accused, the, mandated therein requirement of a copy of the report of Public Analyst, being supplied to them, became transgressed, as the apposite postal receipts, carried in Ext. PW2/C, and, in Ext. PW2/D, in respect of therethroughs, the, apposite statutory intimation, becoming made to the accused, by the Food Inspector concerned, do not, disclose the complete address of the accused. Consequently, she argued, that the statutory facility, as purveyed to the accused, through the mandate, carried in provision (supra) inasmuch as theirs availing the apposite statutory benefit, within 10 days, from the receipt of the report of ::: Downloaded on - 31/01/2022 22:52:55 :::CIS 9 the Public Analyst, and, comprised in their getting the samples of purportedly adulterated milk, rather analysed from the Central Food Laboratory, becoming purportedly .
denied to them, and, she therefore argues, that hence grave prejudice has been caused to the accused/defense.
She also submits that no relevance can be placed upon the report of the Public Analyst.
7. However, the afore made submission, by the learned counsel, for the petitioner is of no legal worth, as a reading of Ext. PW2/C and of Ext. PW2/D, exhibits whereof, are the postal receipts, appertaining to the statutory intimation, (supra) becoming purveyed, to the accused, about report of the Public Analyst, rather reveal that both contain the address of the commercial establishment concerned, hence wherefrom the seizure was made by the Food Inspector concerned.
8. Furthermore, even if, assuming the afore postal receipts, are defective and also if any inference, can be gathered therefrom, that the statutory intimation (supra), as envisaged in sub-Section (2) of Section 13 of the Act, was not made, by the Food Inspector concerned ::: Downloaded on - 31/01/2022 22:52:55 :::CIS 10 to the accused. However, yet the accused could upon theirs making their first appearance, before the Court, hence "after the institution of the prosecution", coinage .
whereof occurs in sub-Section 2 of Section 13, of, the Act seek an order that the samples concerned, be sent for re-analyses, to the Central Food Laboratory. Nonetheless, the accused, upon theirs making their first appearance, "after the institution of prosecution," institution whereof becomes initiated or instituted only upon presentation of the complaint concerned before the learned Magistrate concerned, did not recourse the afore endeavor. Since, sub-section (2) of Section 13 of the Act, invests in the accused, a statutory leverage to within 10 days, from the date of theirs receiving the report, of the Public Analyst, make an application to the Court concerned, rather for sending the samples concerned, to the Central Food Analyst, for the latter making re-analyses thereon(s).
Reiteratedly, when the afore statutory leverage remained un-availed, by the accused, even upon their first appearance, before the learned trial Court, stage whereof becomes hence within the ambit of the statutory ::: Downloaded on - 31/01/2022 22:52:55 :::CIS 11 coinage "after the institution of the prosecution" rather the relevant statutory stage, and, obviously comprises the statutorily pronounced stage, hence rendering any .
earlier thereto stage or also any prior thereto intimation to the accused also irrelevant. Moreover, only thereafter, rather the first appearance of the accused before the ld.
Trial Court would become caused, and, the accused could file an application before the learned trial Court, for, the afore purpose. However, the vigor of the afore would become denuded if at the afore stage, the accused evidently remain unsupplied with all the documents, as appended with the complaint, inclusive of the report of the public analyst. However, when the afore evidence is grossly amiss, thereupon this Court is constrained to conclude that the accused hence waived, and, abandoned the benefit of the afore statutory leverage, whereupon the aforemade address, does completely, lose its vigor.
9. Furthermore, the learned counsel appearing for the petitioners, has contended, on anvil of clause (b) of ::: Downloaded on - 31/01/2022 22:52:55 :::CIS 12 Section 17 of the Act, mandate whereof is extracted hereinafter:
"17(b): The sealed containers of the remaining .
two parts of the sample and two copies of the memorandum in Form VII shall be sent in a sealed packet to the Local (Health) Authority immediately but not later than the succeeding working day by any suitable means;"
11.11.2005, yet r was That the sample concerned though was collected, on sent to CTL, Kandaghat on 14.11.2005. Therefore she contends, that the mandatory requirement, carried in the clause (b) of Rule 17 of the Act, becomes breached, and, upon the afore breach, a conclusion is to be made, that the sample was tampered with or become spoiled, hence rendering un-amenable for acceptance the report of Public Analyst. The afore made submission is dis-countenanced, as she has not read, the words, hence succeeding, "immediately". Since the reading(s) of the words hence succeeding, the word "immediately", bring forth an inference, that in case the days succeeding the collection of samples, by the Food ::: Downloaded on - 31/01/2022 22:52:55 :::CIS 13 Inspector concerned, are holidays, thereupon there is a tenable deterrent, upon the Food Inspector, to comply with earlier thereto mandate, carried in mandate of .
clause (b) of Rule 17, inasmuch as, his thereupon becoming validly precluded, to immediately send the collections, to the Public Analyst concerned, hence for analysis. However, if within the ambit of the afore statutory coinage, the Food Inspector, concerned initially failed to, through suitable means, send immediately since its collection, the sample concerned to the Public Analyst concerned, thereupon his failure would entitle the accused to get an acquittal. However, since the days subsequent to 11.11.2005, were respectively a second Saturday, and, a Sunday, hence holidays, thereupon if within the ambit of, the, afore statutory coinage, the Food Inspector despatched the samples to Public Analyst concerned, on the working day, immediately succeeding the afore two consecutive holidays, thereupon, it cannot be concluded that he committed breach, vis-à-vis, the mandate of clause (b) of Section 17 of the Act, nor the accused become entitled to an acquittal.
::: Downloaded on - 31/01/2022 22:52:55 :::CIS 1410. Lastly, the learned counsel appearing for the petitioners has argued with much vigor, before this Court, that since PW-3, in his cross-examination, made a .
testification, that the Food Inspector concerned, did not, stir the pan concerned with a ladle, rather he stirred it with a spoon, therefore, there was no homogenous stirring of the entire contents of milk, as carried in the pan/container concerned, and, sequally she argues that any report, of the Public Analyst, as made thereon, was not meritworthy. However, the afore submission cannot be accepted, as the relevant Rules, do not mandate, that the stirring is to be done with any prescribed ladle, hence of, a particular size and dimension, rather the rules only provide that homogeneous stirring(s), be made of the entire contents of the purportedly adulterated food item, as becomes carried in the container/pan concerned.
Since, in the cross-examination, of PW-3, he admits that there was stirring of the entire contents of the milk, as carried in the pan concerned, therefore, after homogeneous stirrings hence homogeneous samples, were in fact evidently taken from the milk container, ::: Downloaded on - 31/01/2022 22:52:55 :::CIS 15 and, also the report of the Public Analyst, is both cogent and tenable.
11. Furthermore, the learned counsel for the .
petitioners, contended with much vigor, before this Court that since the Food Inspector concerned had, after extracting the sample(s) from the pan or container concerned, had poured it into a jug of water, thereupon she contends that the deficiency, in the fat content of milk, has occurred from the afore factum. However, the afore submission cannot be accepted, as PW-4 in his cross-examination, has stated that the jug, was in a dried condition, wherefrom it is to be concluded, that it carried no water. In aftermath, only homogeneous sample(s) of milk, as evidently became taken by the Food Inspector concerned, from the apposite container hence became poured into a dried jug, jug whereof did not contain any water. Furthermore, the exercise of its being put it inside a sealed packet, can be concluded to be made hence without any water from the jug concerned, it being empty, entering into the bottle concerned, nor the report of the Public Analyst can be discredited.
::: Downloaded on - 31/01/2022 22:52:55 :::CIS 1612. Be that as it may, the report of the Public Analyst concerned, has not been cast any onslaught on any legally worthy ground. Moreover, even if, PW-4 has .
not completely supported the prosecution case, nonetheless, the statements, of the Food Inspector, i.e. PW-1, and, of PW-2 and PW-3, carry the completest interse echoing(s). Therefore, the testimonies, of the afore witnesses do underwhelm, and, also ousts the relevance, if any, of the testification of PW-4, who, though, has resiled from his previous statement, in writing, however, upon his being cross-examined, by learned APP he has, rather, in the afore manner, supported the prosecution case.
13. The learned counsel, for the petitioner has made a submission before this Court, that the requirement of Rule 18 of the Prevention of Food Adulteration Act, provisions whereof are extracted hereinafter:
"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 means ::: Downloaded on - 31/01/2022 22:52:55 :::CIS 17 immediately but not later than the succeeding working day."
has been breached, as the copy of memorandum, and, .
the specimen seal impression of the seal, as used by the Food Inspector concerned, to seal the parcel, are to be sent separately by him, to Public Analyst. However, even the afore breach would not prejudice the prosecution case, unless evidence existed on record, hence personificatory, that the specimen of seal impression became not used to seal, the packet concerned, given the seals, as made, on the parcel concerned, carrying description(s) completely different, from, the ones, as occur on the sample seal. Since the afore evidence is not existing on record, and, even otherwise, though, the afore requirement is cast, in a mandatory phraseology, yet when unless the afore evidence exists on record, its breach is inconsequential, evidence whereof is amiss, whereupon, its non compliance constrains this Court, to ascribe a directory connotation thereto, and, not a mandatory one. Necessarily, any breach thereof is, of no relevance.
::: Downloaded on - 31/01/2022 22:52:55 :::CIS 1814. Consequently, there is no merit in the petition, and, the same is dismissed. The impugned verdict is affirmed and maintained. Also, the pending application(s),if any, .
are disposed of. No costs.
(Sureshwar Thakur)
Judge
August 13, 2021
Kalpana
r to
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