So far as the first ground made as basis for the acquittal of the accused by the learned trial Magistrate, i.e. want of obtaining fresh sanction for prosecution of the accused is concerned, it is unsustainable in view of the settled proposition of law. A Full Bench of this Court in 1990 (1) Sim. L.C. 126 Rattan Lal v. State of H.P. with Mehar Chand v. State of H.P., while dealing with the question as to where such sanction is again required and where it is not so required, has held as follows:
71. Where the variation in the contents of the report of the Public Analyst and the certificate of the Director Central Food Laboratory, is of a nature which does not alter the specie of the offence for which the offender is being prosecuted on the basis of a written consent given by the appropriate authority under Section 20(1) of the Act on consideration of the contents of the report of the Public Analyst, no fresh consideration of that question or necessity for obtaining a written consent afresh, after the receipt of the report of the Director, arises in the case. The prosecution can be continued on the basis of the written consent already obtained on the basis of the report of the Public Analyst.
72. But, where the nature of the difference in the report of the Public Analyst and the certificate of the Director, Central Food Laboratory, is such that it completely alters the specie of the offence, in the sense of altering the nature of adulteration for which prosecution was initially launched, fresh application of mind on the part of the appropriate authority, envisaged by Section 20(1) of the Act, to the facts and circumstances of the case, in the light of the findings of the Director, is necessary before the prosecution against the offender can be continued any further.
6. In the instant case, the variation in the report of the Public Analyst and the certificate of the Director, Central Food Laboratory do not alter the specie of the offence for which the accused was being tried on the basis of the written consent already accorded by the competent authority, for the reason that in the report of the Public Analyst Ex. P-8 as well as in the certificate Ex. P-12 issued by the Director, Central Food Laboratory, the sample of milk has been found to be deficient in milk solid not fat as well as milk fat. The variation is only of the degree and not of the nature of the deficiency. Thus, in view of the above-settled proposition of law, the further sanction on the basis of the certificate Ex. P-12 was not required and to this extent the learned trial Magistrate has arrived at a wrong conclusion.
Equivalent Citation: 1999(2)ShimLC401,2000 FAJ 33 HP
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
Cr. Appeal No. 412 of 1996
Decided On: 10.06.1999
Appellants: State of H.P.
Vs.
Respondent: Jagtar Singh
Vs.
Respondent: Jagtar Singh
Hon'ble Judges/Coram:
M.R. Verma, J.
M.R. Verma, J.
1. Feeling aggrieved by the judgment dated 22.12.1995 passed by the learned Chief Judicial Magistrate, Una whereby the accused has been acquitted of the accusation under Section 16(1)(a)(i) read with Section 7(i) of the Prevention of Food Adulteration Act, 1954 (hereinafter referred to as the 'Act"), the State has preferred the present appeal.
2. In brief the case of the prosecution is that on 7.1.1992, PW-1 Sh. S.N. Sharma, Food Inspector took a sample of mixed milk from the accused at Village Malahat (Una) who was at that time having 70 KGs of mixed milk meant for sale to the general public. The sample so purchased was dealt with allegedly according to the rules and one of the part of the sample was sent to Public Analyst vide Ex. P-4 who on analysis found that the sample was deficient in milk fat by 49.0% and in milk-solid-not-fat by 28.0% of the minimum prescribed standard. Therefore, after obtaining the written consent of the concerned authority, the said Food Inspector launched prosecution against the accused in the Court of learned Chief Judicial Magistrate, Una, who found the accused not guilty of the accusation and giving him benefit of doubt, acquitted him.
3. I have heard the learned Additional Advocate-General and the learned Counsel for the accused.
4. The learned trial Magistrate has acquitted the accused on consideration of the following three grounds:
1. That on analysis of the second part of the sample, the Central Food Laboratory though found it adulterated yet there were variations in the conclusions arrived at by the Public Analyst and the Director Central Food Laboratory. Therefore, fresh sanction was required to be obtained for the prosecution of the accused, which was not done.
2. That there is no cogent and reliable evidence to prove that due quantity of formalin was added to the sample; and
3. The independent witness though associated in the process of seizing of the sample, has not been produced and examined and thus there is no corroboration of the statement of the complainant.
5. So far as the first ground made as basis for the acquittal of the accused by the learned trial Magistrate, i.e. want of obtaining fresh sanction for prosecution of the accused is concerned, it is unsustainable in view of the settled proposition of law. A Full Bench of this Court in 1990 (1) Sim. L.C. 126 Rattan Lal v. State of H.P. with Mehar Chand v. State of H.P., while dealing with the question as to where such sanction is again required and where it is not so required, has held as follows:
71. Where the variation in the contents of the report of the Public Analyst and the certificate of the Director Central Food Laboratory, is of a nature which does not alter the specie of the offence for which the offender is being prosecuted on the basis of a written consent given by the appropriate authority under Section 20(1) of the Act on consideration of the contents of the report of the Public Analyst, no fresh consideration of that question or necessity for obtaining a written consent afresh, after the receipt of the report of the Director, arises in the case. The prosecution can be continued on the basis of the written consent already obtained on the basis of the report of the Public Analyst.
72. But, where the nature of the difference in the report of the Public Analyst and the certificate of the Director, Central Food Laboratory, is such that it completely alters the specie of the offence, in the sense of altering the nature of adulteration for which prosecution was initially launched, fresh application of mind on the part of the appropriate authority, envisaged by Section 20(1) of the Act, to the facts and circumstances of the case, in the light of the findings of the Director, is necessary before the prosecution against the offender can be continued any further.
6. In the instant case, the variation in the report of the Public Analyst and the certificate of the Director, Central Food Laboratory do not alter the specie of the offence for which the accused was being tried on the basis of the written consent already accorded by the competent authority, for the reason that in the report of the Public Analyst Ex. P-8 as well as in the certificate Ex. P-12 issued by the Director, Central Food Laboratory, the sample of milk has been found to be deficient in milk solid not fat as well as milk fat. The variation is only of the degree and not of the nature of the deficiency. Thus, in view of the above-settled proposition of law, the further sanction on the basis of the certificate Ex. P-12 was not required and to this extent the learned trial Magistrate has arrived at a wrong conclusion.
7. Be it stated at the very outset that adding of preservative to the food stuff seized as sample is one of the necessary requirement of the law and is thus one of the most important ingredients to be pleaded and proved. In this case, the Food Inspector in his statement in the court has stated that he had added 20 drops of formalin in' each of the three sample bottles and it is mentioned in the Panchnama Ex. P-3 also that 20 drops of formalin each were put in three sample bottles. As already stated here-in-above, the adding of preservative to the sample food has its own significance as it preserve the food* to enable its proper analysis when it is so analysed. If inadequate quantity of formalin is added or no preservative is added at all, the result of the analysis cannot be expected to be a correct one. Thus, this is one of the material particular to be alleged in the complaint which has not been admittedly mentioned in the complaint. Thus, a suspicion is raised about the statement of the Food Inspector about his having added the requisite quantity of preservative to the sample. The Panchnama in which it is mentioned is in printed form and it cannot be said to have been consciously written by the Food Inspector therein that he added 20 drops of the formalin to each of the sample bottles. The suspicion is further strengthened for the reason that the milk sample has been analysed twice, once by the Public Analyst and subsequently by the Director, Central Food Laboratory and a perusal of the report and the certificate respectively issued by them reveal that when the milk was analysed by the Public Analyst the milk fat contents thereof were found 2.3% whereas such contents were only 1.6% when the milk was analysed by the Director, Central Food Laboratory. Similarly, the milk solid not fat contents found in the milk sample as per the report of the Public Analyst were 6.1%, whereas according to the certificate issued by the Director, Central Food Laboratory were 5.55%. One of the reasons for these variations in the conclusions arrived at on analysis may be want of adoption of proper procedure in seizing the sample. Therefore the suspicion raised by non-mention in the complaint about the adding of the formalin to the samples is compounded and thus on this aspect the conclusion arrived at by the trial Magistrate is justified.
8. The another ground made basis for acquittal of the accused by the learned trial Magistrate is non-production of the independent witness who though was joined during the process of seizing the sample but was not produced. The joining of an independent witness and to produce him to corroborate the statement of the Food Inspector is not a mere formality but is a legal safeguard so that innocent people are not unnecessarily harassed and prosecuted. Admittedly, the independent witness in the case though has been joined during the process of taking of the sample but has not been produced. Though in the ordinary course an independent witness should have been examined and in case he was not willing to support the case of the prosecution, he could have been cross-examined and confronted with the relevant documents. In any case, the non-production of the said witness has resulted in non-corroboration of the sole statement of the Food Inspector which has already been found suspicious as already discussed here-in-above. The learned trial Magistrate was therefore justified on the basis of the material on record in acquitting the accused by giving him the benefit of doubt, as two out of the three grounds made basis for acquittal of the accused by the trial Magistrate are supportable on the basis of the record.
9. In view of the above discussion, the order of acquittal barred by the trial Magistrate does not call for interference by this Court.
10. Resultantly, the appeal fails and is accordingly dismissed. Bail bonds furnished by the accused are discharged.
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