State of H.P. vs Kuldeep Singh and Hans Raj

Bhawani Singh, J.—Food Inspector, Jagat Ram, visited Bangali Sweet Shop, Dalhousie, on 1-4-1985. He look sample of boiled cow''s milk to the extent of 660 grams, after disclosing his identity, from Hans Raj, Salesman, of the shop owned by Kuldip Singh. The sample was divided into three parts and then put in three dry and clean bottles which were sealed, wrapped, labeled and tightened according to rules. Paper slip, issued by the Health Authority, was also pasted thereon and the signatures of accused Hans Raj and marginal witness Satish Kumar were obtained on each bottle.

One part of the sample was sent to the Public Analyst, Kanawha, for analysis on 2-4-85 while the other two were deposited with the Local Health Authority, Chamber. After analysis, by a report of 14-5-1985 (Ex. PA), the Public Analyst opined that the percentage of milk solids-not-fat was found deficient by 29% than the minimum prescribed standard. There were certain typographical mistakes in the said report and as a result thereof, it was sent twice to the Public Analyst by the Local Health Authority for necessary corrections. Then sanction, dated 29-9-85 (Ex. PB), was obtained from the Chief Medical Officer, Chamber, u/s 20 of the Prevention of Food Adulteration Act, 1954 (hereinafter referred to as ''the Act'') for the prosecution of the accused. Copies of the report of the Public Analyst and the notice u/s 13(2) of the Act were sent to the accused through registered post on 14-10-1985 by the Local Health Authority. The accused pleaded not guilty and claimed trial. The trial ended in the acquittal of Kuldip Singh and conviction of Hans Raj by the Chief Judicial Magistrate, Chamber, in Cr. Case No. 191/1, 54/111 of 1985, decided on 13-8-1986.

Against conviction, Hans Raj filed an appeal before the Sessions Judge, Chamba, and against the acquittal of Kuldip Singh, the State preferred appeal in this Court. The appeal of Hans Raj was allowed by the Sessions Judge, Chamba, on 16-1-1989 and he was acquitted of the charge. This decision has been challenged by the State in this Court. It is in these circumstances that both these matters have come before this Court. Since they are common in nature, they are being decided by this single judgment.

The counsel for the State, M.S. Guleria, Assistant Advocate General, argued for the conviction of the accused in this case and contended that in view of the evidence available on the record of this case, the decisions of the courts below deserve to be set-aside. On the other hand Pandit Om Parkash and Rajiv Sharma, Advocates, learned Counsel for the accused, argued that the accused have been rightly acquitted in this case and there is no justification to set-aside their acquittals.

It is clear from the trial court judgment that the prosecution has not been able to establish that Kuldip Singh was the owner of the shop. Food Inspector Jagat Ram has based his information on co-accused Hans Raj. No attempt was made to produce the license of the shop in this case and the evidence points out that the license in the name of Kuldip Singh had expired on 31-3-1985 and the sample was taken on 1-4-1985. It has also been noticed from the statement of Satish Kumar (P.W. 3) that Kuldip singh was not running the business in Bengali Sweet Shop and it was his mother who was doing so. Although reliance was placed on the statement of Bindrawati, that was recorded in some previous litigation before the Rent Controller (Ex. DWI/A), pointing out that Kuldip Singh was the owner whereas Hans Raj was an employee in the shop, but the same has been discarded by the trial court like the evidence that Kuldip Singh had sought Rs. 10.000/- in the year 1977 from the Bank for the purchase of certain articles on the ground that the prosecution did not produce the best evidence to show that Kuldip Singh was the owner of the shop and that there was evidence to show that the loan was advanced to him in his personal capacity and not as proprietor of Bengali Sweet Shop. It has also been concluded by the trial court that the information of the Food Inspector, Jagat Ram (P.W. 2), was only hear-say since he had no personal knowledge as to the ownership of the shop. In my opinion, these conclusions are not unreasonable since they flow out of the evidence in this case.

The other point taken for determination in this case was relating to the sanction u/s 20 of the Act. It was argued that it is not in accordance with law and the sanctioning authority has not applied its mind before sanctioning prosecution of the accused. There is substance in this submission of the learned Counsel for the accused since it appears from the sanction order that the sanctioning authority has not even referred to the provisions of the Act and the Rules which have been violated by the accused nor it has been said that the prosecution of the accused is necessary in the public interest (See: Dhian Singh Vs. Municipal Board, Saharanpur,

Next, it was submitted that the sample in the present case was taken on 1-4-1985 and notice u/s 13(2) of the Act was sent through registered post on 14-10-1985 by the Local Health Authority. In this way, there is violation of Section 13(2) of the Act for the reason that by this long lapse of time the sample had been rendered useless for analysis, more so, when there is no evidence that preservative was added to save the food Article from deterioration. In support of this contention, reliance was placed on the following paragraph of the Supreme Court decision reported in Municipal Corporation of Delhi Vs. Ghisa Ram, wherein the Court said:

The opinion of one of the experts, Dr. Sat Parkash, given in this case shows that in the case of a food article, like curd, it starts undergoing changes after a week, if kept at room temperature, without a preservative, but remains fit for analysis for another 10 days thereafter. On the other hand, if the sample is kept in a refrigerator, it will preserve its fat and non-fatty solid contents for purposes of analysis for a total period of four weeks. If a preservative is added and the sample is kept at room temperature, the percentage of fat and non-fatty solids contents for purposes of analysis will be retained for about four months, and in case it is kept in a refrigerator after adding the preservative, the total period which may be available for making analysis, without decomposition, will be six months. In this case, when the Food Inspector handed over the sample to the Respondent, the Respondent was not expected to keep it in a refrigerator. Consequently, without any preservative, the sample kept with him could have been analysed successfully during the next 17 days, whereas, if a preservative had been added, it could have been analysed successfully during the next four months.

There is a good deal of substance in this submission. Delay of more than six months has taken place in this case. The Food Inspector has not said that in order to save the food article from deterioration, formalin was added. This means that it was not added and even after the analysis, the report was sent to the Public Analyst for correction two times, and the result was that the prosecution was delayed by more than six months and could not have been precisely analysed by the Central Food Laboratory, in case that had been sent there at the instance of the accused. Similar view has been taken in Shiv Dayal Vs. The State of Madhya Pradesh, 1987 FAJ 442 (Gopi Ram v. State of Haryana), and 1972 FAC 732 (Resham Singh v. State of Punjab).

Lastly, it was contended that the conviction of accused Hans Raj is illegal for the reason that he was only a Munim and was not present in the shop when the sample was taken. Counsel for the State has contended that accused Hans Raj was Salesman in the shop and was present at the time of taking of the sample. Reference to documents prepared at the spot was made in order to show that the accused was available and he appended his signatures without any protest. Reference to the explanation of the accused will indicate that he was not in the shop at the relevant time. He was called to the shop and his protest was ignored by the Food Inspector. The explanation of the accused cannot be considered to be wrong. It is quite plausible and acceptable.

The result of the aforesaid discussion is that there is no merit in these appeals and the same are accordingly dismissed.