State Of H.P. vs Madhu Kapoor

“24.

It could thus be seen that it is a settled legal position that the interference with the finding of acquittal recorded by the learned trial Judge would be warranted by the High Court only if the judgment of acquittal suffers from patent perversity; that the same is based on a misreading/omission to consider material evidence on record; and that no two reasonable views are possible and only the view consistent with the guilt of the accused is possible from the evidence available on record.

21.

We may note that the present appeal is one against acquittal. Law is well-settled by a plethora of judgments of this Court that, in an appeal against acquittal, unless the finding of acquittal is perverse on the face of the record and the only possible view based on the evidence is consistent with the guilt of the accused, only in such an event, should the appellate Court interfere with a judgment of acquittal. Where two views are possible, i.e., one consistent with the acquittal and the other holding the accused guilty, the appellate Court should refuse to interfere with the judgment of acquittal. Reference in this regard may be made to the judgments of this Court in the cases of Babu Sahebagouda Rudragoudarv. State of Karnataka (2024) 8 SCC 149; H.D. Sundara v. State of Karnataka (2023) 9 SCC 581 and Rajesh Prasad v. State of Bihar (2022) 3 SCC 471.

“29.

From the aforesaid decisions rendered by this Court, it can be said that if two reasonable conclusions are possible on the basis of the evidence on record, the Appellate Court should not disturb the findings of acquittal recorded by the Trial Court. Further, if the view taken is a possible view, the Appellate Court cannot overturn the order of acquittal on the ground that another view was also possible. The following principles have to be kept in mind by the Appellate Court while dealing with the appeals against an order of acquittal:

(a)

whether the judgment of acquittal suffers from patent perversity;

(b)

whether the judgment is based on misreading/omission to consider the material evidence on record;

(c)

an order of acquittal is to be interfered with only when there are “compelling and substantial reasons” for doing so. If the order is “clearly unreasonable”, it is a compelling reason for interference.’

(d)

the appellate court, while deciding an appeal against acquittal, after reappreciating the evidence, is required to consider whether the view taken by the trial court is a possible view which could have been taken on the basis of the evidence on record;

(e)

if the view taken is a possible view, the appellate court cannot overturn the order of acquittal on the ground that another view was also possible; and

(f)

the appellate court can interfere with the order of acquittal only if it comes to a finding that the only conclusion which can be recorded on the basis of the evidence on record was that the guilt of the accused was proved beyond a reasonable doubt and no other conclusion was possible.”

“17.

Learned Counsel for the accused contends that a conviction cannot be based on the sole testimony of the Food Inspector, particularly when the independent witness has not supported the prosecution's case. It is now well settled that conviction can be based on the sole testimony of the Food Inspector if believed. There is no reason to disbelieve the Food Inspector in the present case. The evidence of the Food Inspector cannot be said to be inherently suspect. The Food Inspector, as observed in State of U.P. v. Hanif, 1992(2) Crimes 14, discharges his public functions in lifting the articles of food for the purpose of analysis. Testimony of the Food Inspector is to be tested on its own merits and, if acceptable, can be relied upon to convict the accused, particularly when there is no personal allegation against the Food Inspector. In State of U.P. v. Hanif (supra), milk sold by the accused was found adulterated. In that case, it was contended that, except for the Food Inspector, no other witness was examined to corroborate the Food Inspector, the Food Inspector being an interested party; the evidence was not sufficient to convict the accused without corroboration. In this context, their Lordships of the Apex Court observed thus:-"......It is not the law that the evidence of the Food Inspector must necessarily need corroboration from independent witnesses. The evidence of the Food Inspector is not inherently suspect, nor should it be rejected on that ground. He discharges the public function in purchasing an article of food for analysis, and if the article of food so purchased in the manner prescribed under the Act is found adulterated, he is required to take action as per law. He discharges public duty. His evidence is to be tested on its own merits, and if found acceptable, the Court would be entitled to accept and rely on it to prove the prosecution's case. If, in a given case where the factum of the very purchase is put in question and any personal allegations are made against the Food Inspector, perhaps it may be necessary for the prosecution to dispel the doubt and to examine the Panch witnesses seeking corroboration of the evidence of the Food Inspector. In this case, the factum of purchase by the Food Inspector was not disputed. Even in the appellate Court, the contention raised was regarding the delay in sending the public analyst report to the authority and laying the prosecution, but no other controversy was raised. Under these circumstances, we find no substance in the contention that the evidence of a Food Inspector must be corroborated by independent evidence."

“5.

Section 7 of the 1954 Act prohibits the sale, storage, or distribution of any adulterated food, any misbranded food, any article of food for the sale of which a licence is prescribed, except in accordance with the conditions of the licence. Section 16 of the Act provides for penalties for different types of offences. Section 23 empowers the Central Government to make rules in order to carry out the provisions of the Act. In exercise of that power, the Central Government has framed provisions of the Food Adulteration Rules, 1955. Rule 5 of these Rules specifies the standards of quality of various articles of food, which are specified in Appendix 'B' appended to the Rules. Appendix 'B' shows that 'Motichur Laddoo' is not one of the food articles.

6.

In M.V. Krishna Namibissan v. State of Kerala 1979(1) FAC 72 (SC), their Lordships of the Supreme Court held that since no standard has been. been prescribed for butter milk in Appendix 'B' of the 1955 Rules, a person cannot be convicted for any offence under the Prevention of Food Adulteration Act, 1954.

7.

In Brooke Bond India Ltd. v. State of Rajasthan 1980 FAJ 123, (Raj.) this Court held that since no standard has been prescribed for instant coffee blended with chicory, no offence can be said to have been made out because from the help of the standard prescribed for the coffee, it cannot be proved that the instant coffee blended with chicory is adulterated. If the Legislature in its wisdom had not prescribed any standard for instant coffee blended with chicory, one cannot by prosecuted for its sample being not conforming to the standard prescribed for coffee under the Prevention of Food Adulteration Rules, 1955. The Court quashed the proceedings on the basis of an application filed under Section 482, Cr.P.C.

8.

In Naresh Kumar v. State of Punjab 1982 (11) FAC 30 a Division Bench of Punjab and Haryana High Court set aside the conviction of a person who was manufacturing 'Patasa' on the ground that standard and the quality or purity or the preparation of the various contituents that go into the making of 'Patasa' have not been prescribed by the Act or the Rules framed thereunder.

9.

A similar view has been expressed in Ashok Kumar v. State of Haryana 1985 (1) FAC 272 in the case of 'Gajar Pak' and also in respect of 'Badana' Sweet in Mohinder Pal v. State of Punjab 1986(11) FAC 147.

10.

These all decisions clearly establish that unless the standard is prescribed for a particular food article in Appendix 'B', a person cannot be prosecuted for an offence of having manufactured or sold adulterated food.

11.

Learned Public Prosecutor has not been able to show that any standard is prescribed for 'Motichur Laddoo', and, therefore, the petitioner cannot be proceeded against for having violated the provisions of the Act of 1954 and the rules made thereunder.

“5.

I have considered the above arguments. Sub-clause (m) of clause (ia) of Sec 2 of the P.F. Act reads as follows:-

“adulterated” – an article of food shall be deemed to be adulterated-

“(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 injurious to health: Provided that, where the quality or purity of the article, being primary food, has fallen below the prescribed standards or its constituents are present in quantities not within the prescribed limits of variability, in either case, solely due to natural causes and beyond the control of human agency, then, such article shall not be deemed to be adulterated within the meaning of this sub-clause.

Explanation: Where two or more articles of primary food are mixed together and the resultant article of food-

(a)

is stored, sold or distributed under a name which denotes the ingredients thereof; and

(b)

is not injurious to health, then, such resultant article shall not be deemed to be adulterated within the meaning of this clause.”

It is obvious that under sub-clause (m) of the P.F. Act 1954, an article of food is deemed to be adulterated if the quality or purity of that article falls below the prescribed standard or its constituents are present in quantities not within the prescribed limits of variability. The standard of quality of articles of food is specified in Appendix ‘B’ to the P.F. Rules 1955.

6.

Admittedly, there is no standard prescribed for the “Sev Namkin” in Appendix B. Therefore, it has to be accepted that the article “Sev Namkin” cannot be held to be adulterated in sub-clause (m) of clause 2(ia) of Sec 2 of the Act. It has been the consistent view of the various High Courts that if there is no prescribed standard for an item of food, it cannot be deemed to be adulterated under sub-clause (m), and the accused cannot be convicted.

7.

This Court in the case of Shri Kishan (supra) held that as there is no standard prescribed for ‘Ladoo Motichur’, the accused could not be charged under the provisions of the Act of 1954 and the Rules made thereunder.

8.

So also the M.P. High Court in the case of Prakash Chand (supra) held that as there is no standard prescribed for ‘Gur Gappa’, the conviction of the accused was not sustainable. In that case, as in the instant case, the accused was prosecuted on the basis of the report of the Public Analyst on the basis of the report of the Public Analyst on the edible oil extracted from the seized ‘Gur Gappa’. The learned Judge held that since there is no standard prescribed for the extracted edible oil from any foodstuff, the accused could not be convicted. The case of Prakash Chand (supra) is on all fours with the instant case.

9.

The Punjab and Haryana High Court in the case of Subhash Chander (supra) held that, as there is no standard prescribed for ‘Namkeen Bhujia’, the accused could not be convicted. In that case, the Public Analyst gave the report presuming that mustard oil was used in the preparation of ‘Namkeen Bhujia’. The learned Judge held that the oil extracted from the ‘Namkeen Bhujia’ could not be tested.

10.

A Division Bench of the same High Court in the case of State of Punjab vs. Gulshan Rai (supra) held that as no standard is prescribed under the Act or the Rules for the ‘Ladoos’ and as the Food Inspector did not purchase any sample of medium used for the preparation of ‘Ladoos’, the accused could not be convicted.”

“5.

In the complaint filed, it was stated that the medium used in the preparation of laddoos was palm oil. This was so stated as the report of the Public Analyst had indicated so, who further had reported that the medium used was not up to the standard prescribed for palm oil. Subsequently, when the second sample was sent to the Director, Central Food Laboratory, he did not report as to what type of medium was used in preparation of the laddoos. This was not indicated on the labels attached to the sample. However, he reported that the medium used was not in conformity with the standard prescribed under the rules for vanaspati as well as for palm oil. Rule A.19 of the Rules prescribes the standard for vanaspati, and Rule A. 17.19 prescribes the standard for the palm oil. There is no standard prescribed for laddoos. The question for consideration is as to whether, on the report of the Director, Central Food Laboratory, Exhibit PF, the conviction of the accused can be recorded? None of the witnesses who appeared in Court on behalf of the prosecution stated that the medium used in preparation of the laddoos was palm oil or vanaspati. When the statement of the accused was recorded under Section 313 of the Code of Criminal Procedure, it was not put to him that the medium used by him for the preparation of the laddoos was palm oil. The report of the Public Analyst is superseded by the report of the Director of the Central Food Laboratory. There is no evidence, as stated above, that the accused used palm oil. Till it is so proved by cogent evidence, he could not be convicted. It was not for the accused to come forward with any explanation that he had prepared the laddoos in a particular medium to escape punishment. Rather, it was for the prosecution to establish that he had prepared the laddoos in the medium, which was not up to the prescribed standard. In the present case, the prosecution has failed beyond a reasonable doubt to do so.

6.

As already stated above, what were purchased by the Food Inspector were laddoos for which no standard is prescribed under the Act or the Rules. The Food Inspector did not purchase any sample of the medium used for the preparation of the laddoos. Since no standard was prescribed by the laddoos, as stated above, and the same were not found to be unfit for human consumption, the accused could not be convicted under the Act.

7.

Reference may be made to the decision of J.B. Garg, J., in Subhash Chander v. State of Haryana 1990 (2) FAC 127, which was a case of the purchase of namkeen Bhujia. The report of the Public Analyst related to the medium used in the preparation of Bhujia, i.e. mustard oil, which was not up to the standard prescribed. It was held that for the sale of namkeen bhujia for which no standard was prescribed, conviction could not be made.”

“6.

All the same, to bring this case within the ambit of clause (a) of section 2(1) of the Act, learned counsel for the State relied upon Corporation of Calcutta v. Sankar Trading Co., and another 1968 (2) Cr. L. Journal 1532 wherein Ajowan was found mixed with sand and dirt. The learned Judge found that there was no evidence showing that the mode of adulteration affected injuriously the nature, substance or quality of Ajowan injuriously. But the data furnished by the Public Analyst brought the case within the mischief of clause (a) of section 2(1) of the Act. Plainly, the "learned Judge gave his decision upon the merits of the case. Nevertheless, reference was made to the following observations: --

"Dirt and sand are not constituents of Ajowan, as it cannot be. Either they get mixed up when collected on the ground, or they are deliberately mixed with Ajowan subsequently. Even if they get mixed up with Ajowan when collected on the ground, a vendor has no right to sell Ajowan mixed with dirt and Sand when the purchaser asks for Ajowan. That would be selling something not of the nature, substance or quality of the article that is demanded by the purchaser. Asking for Ajowan is not the same thing as asking for Ajowan mixed with dirt and sand. In such circumstances, Ajowan would be deemed to be adulterated. It is not necessary under section 2(1)(a) that it should be proved that any poisonous matter or any matter which adversely affects the human system, directly or indirectly, due to the taking of the sample was present in the sample."

Accordingly, learned counsel for the State urged before me that if any impurity is found in an article of food, it should be deemed to be adulterated. This, to my mind, is too wide a proposition to be accepted, the simple reason being that if such were the intention of the Legislature, there was no need either for prescribing the standard of quality or purity of an article of food or enacting clauses (a) to (k) in section 2(1) of the Act. It will be pertinent to refer here to a case of Ajowan decided by this Court vide, --Amar Singh v. The State of Punjab, 1974 C.L.R. 563. In that case, when the sample of Ajowan was taken in the year 1970, no standard of its purity was prescribed. Later, in February 1973, Rule A. 05.23 was added, laying down that "the proportion of organic and inorganic extraneous matter shall not exceed 3 per cent, and 2 per cent respectively. The seeds shall be free from living insects, insect fragments and rodent contamination visible to the eyes." Following MANU/SC/0073/1966: AIR 1966 S.C. 1676 (supra) (M.V. Krishnan Nambissan v. State of Kerala), Mr Justice Pritam Singh Pattar, J., set aside the conviction and acquitted the accused. Framing of the above-mentioned rule A. 05.23 is a clear example indicating tolerance of impurities in an article of food to some extent. That explains why, in clause (b) of section 2(1) of the Act, the bare existence of any extraneous substance in an article of food will not make it 'adulterated'. The other essential ingredient in clause (b) is that the extraneous substance affects injuriously the nature, substance or quality of the article of food injuriously. For the foregoing reasons, with due respect, I am unable to agree with the above-quoted observations of the learned Judge in the case of the Corporation of Calcutta. This leads me to the conclusion that the case in hand is not covered by clause (a) of section 2(1) of the Act. It deserves particular mention here that even the trial Magistrate did not rely on this clause for framing the charge against the petitioner.

7.

To bring the case within the ambit of clause (b) of section 2(1) of the Act, learned counsel for the State placed reliance on a Division Bench decision of the Delhi High Court in Ram Murti v. Municipal Corporation of Delhi, 1975(1) FAC 149. In that case, Sabat Amchoor, containing extraneous matter to the extent of 0.79 per cent, was declared 'adulterated' under section 2(1)(b) of the Act. Jagjit Singh, J. speaking for the Bench observed that "clause (b) of section 2(1) of the Act envisages two contingencies, namely, (i) the article per se contained any other substance which affects its substance or quality or (ii) if the article is so "processed as to affect injuriously the nature, substance or quality thereof" the same is said to be adulterated. The words 'affect injuriously the nature" do not go with the earlier words of the sub-clause, namely, "if the article contains any other substance" but clearly go with the words "if the article is so processed."

8.

For facility, clause (b) of section 2(1) of the Act may again be quoted: --

"(b)

if the article contains any other substance which affects, or if the article is so processed as to affect, injuriously the nature, substance or quality thereof."

It will be noticed that the comma precedes the word "injuriously". If it were not so, then I would have agreed with the view expressed by the learned Judges. The placement of the comma as it is makes me think that the word "injuriously" goes not only with the second part but also the first part of the clause.

9.

Thus, there is no escape from the conclusion that the prosecution, in the present case as required, has failed to show that the existence of organic and inorganic matters injuriously affected the nature," substance or quality of the gond. Their Lordships of the Supreme Court in R.P. Kapur v. State of Punjab, MANU/SC/0086/1960: A.I.R. 1960 S.C. 866 laid down that where the evidence adduced clearly or manifestly fails to prove the charge, the inherent powers of the High Court to quash the proceedings at an interlocutory stage can be invoked.