Irendar Kumar Sushil Kumar vs State of H.P. and Others

A.L. Vaidya, J.—The present Petitioner alongwith Respondents No. 2 and 3 are being prosecuted u/s 16 of the Prevention of Food Adulteration Act (briefly the ''Act'') for selling adulterated ''Atta'' to the Food Inspector, complainant on 23.8.1989. The present Petitioner has been summoned after application u/s 20A of the said Act was allowed.

According to complaint, the sample of ''Atta'' was taken from the premises of M/s. Sood and Company at Rohru in accordance with the procedure. Respondent No. 2 being one of the owner of the said Concern was made accused alongwith the Concern, Respondent No. 3. According to the complaint Deep Chand, Respondent No. 2 disclosed that he had purchased the said ''Atta'' from M/s. Irender Kumar Sushi 1 Kumar, 12, Cart Road, Shimla vide bill No. 16647 dated 11.7.1989. According to the complaint, one of the sample was sent to the Public Analyst, Kandaghat alongwith memo Form VII in a sealed packet through Shri Balak Ram, alongwith impression of seal. Remaining two parts were handed over to the Local Health Authority, Shimla.

It was averred in the complaint that due to the sudden death of the Public Analyst, Kandaghat, the sample was sent to the Public Analyst, Chandigarh u/s 13(2E) of the Act by the Local Health Authority, Shimla and on the basis of the report received from Public Analyst, Chandigarh, the sample was found to be adulterated.

The main point stressed in the present petition has been that there was absolutely no occasion for the Local Health Authority to have sent the sample to public Analyst, Chandigarh u/s 13(2E) of the Prevention of Food Adulteration Act inasmuch as the said provisions were not legally available to the Local Health Authority in the present case. It has been submitted that in case the report of the Public Analyst, Chandigarh is excluded against the present Petitioner and other co-accused, there does not remain any evidence connecting all the accused persons with the selling of adulterated ''Atta'' in favour of Food Inspector. There appears to be some genuine grievance put forth by the Petitioners in this behalf.

Section 13(2E) of the Prevention of Food Adulteration Act reads as under:

13(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 (I) 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.

It has been alleged in the complaint itself that one part of the sample was sent to the Public Analyst, Kandaghat for analysis. However, according to complaint, due to sudden death of the Public Analyst, Kandaghat, the sample was sent to Public Analyst, Chandigarh u/s 13(2E) of the Act. The aforesaid provision of law will be available to the Local Health Authority only in case the Local Health Authority was of the opinion that the report delivered by the Public Analyst, Kandaghat was erroneous and thereafter alone one of the retained sample could be sent to some other Public Analyst for analysis. Needless to say, in the present case as there had been no report submitted by the Public Analyst, Kandaghat, the question of its being erroneous did not arise at all there. In case the report was there, then alone it could be inferred whether it was erroneous or not. That being so, in the present case, as per allegations made by the complainant himself, there was absolutely no legal occasion for the Local Health Authority to have taken the shelter u/s 13(2E) of the Act for sending one of the retained sample to Public Analyst, Chandigarh. In this view of the matter, the report of the Public Analyst, Chandigarh does not come within the ambit of the aforesaid provision of law and it has to be excluded to be relied upon in the present case. If it is so, there is absolutely nothing on record to prove that the sample of "Atta'' purchased from the accused persons was adulterated.

Otherwise also, it may be pointed out here that the sample was taken in August, 1989 and the retained sample was received by the Public Analyst, Chandigarh on 7.11.1989, and it was analysed in December, 1989, meaning thereby the sample was analysed after about three months of the taking of the sample. According to Public Analyst, Chandigarh, the sample was opined to be adulterated as it contained eight living insects. This Court fails to appreciate whether eight living insects were alive at the time of the taking of the sample and whether they could be alive even after three months when the sample was analysed in December, 1989? Therefore, the likelihood of living insects having cropped up during this intervening period could not be ruled out. In that view of the matter also, the report of the Public Analyst even if taken note of, will not help the case of the complainant.

In view of the foregoing reasons, the present petition is accepted and the entire proceedings including the complaint preferred against the present Petitioners and other co-accused are quashed and as a result thereof, the complaint is dismissed and all the accused persons including the Petitioners stand discharged.