Khainkhoo Ram and Another vs State of Himachal Pradesh

Bhawani Singh, J.—The accused, father and son, were convicted by the trial Judge in Criminal Case No. 34-111 of 1984 decided on 23-5-1984 for offence u/s 7 read with Section 16(1)(a) of the Prevention of Food Adulteration Act, 1954 to undergo rigorous imprisonment for six months each and to a fine of Rs. 1,000/- each and in default of payment of fine, to undergo further rigorous imprisonment for two months each. The Petitioners unsuccessfully challenged this judgment before the learned Sessions Judge, Kangra Division, in Criminal Appeal No. 52 of 1984, decided on 26-11-1985. The present petition was filed through jail. In the meantime, it appears that they were released on bail on, 24-1-1986. However, they did not appear either in person or through any counsel when this matter came up for hearing. Shri K.D. Sood, Advocate, was requested to appear and plead for them. He was kind enough to accept the request and assailed the judgment by number of submissions and impressed me a lot for coming to the conclusion in this case.

Shri K.D. Sood raised number of submissions, but I confute this judgment to a few of them which I consider fundamental to clinch the issue.

The first submission relates to the application of Section 13(2) of the Prevention of Food Adulteration Act which, in the present ease, has been given to Khainkhoo Ram only and it is an admitted position. The question is whether it should have been given to both the accused and in case it is given to one of them, whether the benefit of acquittal is available only to one or both. Shri K.D. Sood drew my attention to 1985 F.A.C. 226 (Mansingh Chhajufam Yadav and Anr. v. the State of Gujarat) and 1982 Cri.L.J. 116 (Babaji Charan Sahu and Anr. v. The State). Both these judgments apply to the facts of this case and 1 accordingly hold that failure to comply with these provisions entail benefit to both and hence their acquittal.

The second point urged by the learned Counsel for the accused is that Shri Khainkhoo Ram was neither an employee nor a partner of the shop of Milkho Ram accused. Therefore, he could not be held liable for the offence in question. He was present in the shop only in the absence of Milkho Ram accused when the article kalachana (black gram) were taken for analysis. Reference is made to the decision of this Court reported as Bihari Lai and Anr. v. the State of H.P. 1987 (1) (FAI) 85. The present case stands even at a better footing than this case cited by the learned Counsel for the accused. In the case referred sutra the person from whom the sample was taken was at least an employee (Munim) but in the case before me, neither Khainkhoo Ram was an employee nor a partner, as already observed. The result, therefore, is that the conviction of the accused suffers on this ground also.

The last point urged refers to the sanction part of the case. It is submitted that before launching the prosecution, sanction in accordance with law, has to be authorized which has not been done in the present case. Perusal of the record shows that there is no evidence of sanction being accorded by the authority concerned for launching the prosecution.

The result is that the present prosecution against the accused is without jurisdiction.

The net result of the aforesaid discussion is that the. Revision succeeds and is accordingly allowed. The conviction and sentence imposed upon the accused are set-aside. Bail band, if any, executed by the accused at any stage of the case are hereby cancelled.