Janak Raj vs State of H.P.

R.L. Khurana, J.—The Petitioner Janak Raj upon having been tried for the offence u/s 16(1)(a)(i) and (ii) of the Prevention of Food Adulteration Act, 1954 by the teamed Additional Chief Judicial Magistrate, Paonta was convicted for the offence u/s 16(1)(a)(i) of the Prevention of Food Adulteration Act vide judgment dated 22.11.95 and sentenced to undergo simple imprisonment for a period of six months and to pay a fine of Rs. 1,000/-. The conviction and sentence imposed upon the Petitioner by the learned Magistrate was affirmed in appeal by the learned Sessions Judged, Nahan vide judgment dated 27.5.97.

Feeling aggrieved, the Petitioner has come up before this Court by virtue of the present revision petition.

Food Inspector Sh. G.R. Puri on 26.11.91 at about 1.15 p.m. had intercepted the Petitioner at village Shamsherpur while he was carrying about 30 kg. of cow''s milk in two drums on his cycle for sale to the general public. One of such drum contained about 18 kg. of milk while the other drum contained 12 kg, of milk. The Petitioner on demand could not produce the milk vendor licence. The Food Inspector purchased 750 ml. of cow''s milk from the Petitioner as sample out of the drum containing about 18 kg. of milk. Such sample on analysis was found to be adulterated since it was found deficient in milk fats as well as milk solids not fat to the extent of 94% and 15% respectively. The Food Inspector accordingly after obtaining the requisite consent for the prosecution of the Petitioner, presented the complaint before the learned Magistrate

The Petitioner denied the charge. His case is that of denial simpliciter.

The learned Magistrate upon consideration of the material placed before him, found the Petitioner guilty of the offence u/s 16(1)(a)(i) of the Prevention of Food Adulteration Act, 1954. He, accordingly, convicted and sentenced the Petitioner as aforesaid.

The Petitioner unsuccessfully appealed before the learned Sessions Judge, Nahan. His appeal was dismissed on 27.5.97 and the conviction and sentence imposed upon him by the learned Magistrate were affirmed.

At the very outset, the learned Counsel for the Petitioner by placing reliance on a ratio laid down by this Court in State of Himachal Pradesh v. Parshotam Dass 1997 (1) SLJ 219, has contended that the written consent Ext. PW 2/G dated 24.2.92 is not valid, since the competent authority had signed the draft written consent sent to it by the Food Inspector and there has been no application of mind by the competent authority before granting the written consent.

It is admitted by the Food Inspector while appearing as PW 3 that while applying to the competent authority for obtaining the written consent for the prosecution of the Petitioner, he had enclosed the draft written consent to the competent authority. P.W. 2, the Dealing-Asstt. in the office of the Chief Medical Officer, Nahan has also admitted that a draft written consent was received from the Food Inspector along with the other papers pertaining to the present case.

A bare perusal of Ext. P.W. 2/G shows that the competent authority, namely, the Chief Medical Officer, Nahan had not merely signed the draft written consent sent to him. The competent authority before signing the written consent Ext. PW 2/G had carried out corrections and additions in the draft submitted to him. In view of the corrections and additions carried out by the competent authority in Ext. PW 2/G, it cannot be said that there has been no application of mind by the competent authority before granting the written consent. It is not a case where the competent authority had merely signed the draft written consent submitted to him by the Food Inspector. Therefore, the ratio laid down in Parshotam Dass''s case (supra) has no application to the facts of the present case.

Ext. PB is the notice alleged to have been served upon the Petitioner by the Food Inspector expressing his intention to purchase the sample of milk for the purpose of analysis. The address mentioned in this notice Janak Raj, son of Phool Singh village and Post Office Kaleser, Teh. Chhachharoli. The same name and address of the person from whom the sample is alleged to have been purchased by the Food Inspector is mentioned in the memo Ext. PC alleged to have been prepared by the Food Inspector at the spot while taking the sample of the milk from the Petitioner.

Relying on these documents, it has been contended on behalf of the Petitioner that the identity of the Petitioner has not been connected with the person whose name and address is mentioned in Ext. PB and Ext. PC. Admittedly, the Petitioner is a resident of village Bakkarwala of Tehsil Chhachharoli, District Yamunanagar, Haryana. The Food Inspector while appearing as PW 3 has admitted that village Kaleshwer mentioned in Ext. PB and Ext. PC is different from village Bakkarwala and that the distance between these two villages is about 15 kilometers.

There is an endorsement in red ink in Ext. PC to the effect that upon further inquiries it was revealed that the vendor Janak Raj, son of Phool Singh was a resident of village Bakkarwala of Tehsil Chhachharoli. The Food Inspector as PW 3 has also deposed that after taking the sample, he had made inquiries and he came to know that the Petitioner had given his wrong address as resident of village Kaleser, though in fact he was found to be a resident of village Bakkarwala. The Food inspector, however, could not give the name of the persons from whom he had made the inquiries and was able to gather the correct name of the village of the Petitioner.

The learned two courts below have committed an error in holding the Petitioner to be the person from whom the sample of milk is alleged to have been purchased by the Food Inspector on the relevant date. The circumstance, that the Petitioner had given wrong address as resident of village Kalesher, Tehsil Chhachharoli, while in fact, he was a resident of village Bakkarwala in Tehsil Chhachharoli could not have been pressed into service against the Petitioner in view of the fact that such circumstance was never put to the Petitioner in his statement recorded u/s 313, Code of Criminal Procedure.

This Court in State of Himachal Pradesh v. Ajay Kumar Criminal Appeal No. 189 of 1990, decided on 19.8.1996, has held that the provisions contained in Section 313, Code of Criminal Procedure are based on the principle involved in the maxim audi alteram partem, namely, that no person should be condemned unheard and the accused should be heard not merely what is prima facie proved against him but on every circumstance appearing in evidence against him.

Therefore, on the failure on the part of the prosecution to put the relevant circumstance as to the giving of the wrong address by the Petitioner to the Food Inspector during the examination of the Petitioner u/s 313, such circumstance could not have been used and pressed into service against the Petitioner for the purpose of his identity and linking him with the person named in Ext. PB and Ext. PC.

The learned Sessions Judge has also placed great reliance on the fact that the Petitioner had refused to give his specimen thumb-impression on an application having been made in this regard by the prosecution for the purpose of comparison with the thumb-impression appearing on Ext. PB and Ext. PC. Be it stated that this circumstance also could not have been used against the Petitioner for the reasons that such circumstance was also not put to the Petitioner during his examination u/s 313, Code of Criminal Procedure and no opportunity was afforded to him to explain such circumstance.

As stated above, according to the Food Inspector while appearing as PW.3, he had made inquiries and found that the Petitioner had given wrong address and that in fact he was resident of village Bakkarwala. He could not disclose the names of the persons from whom such inquiries were made by him. Besides, nothing has come on the record as to why the Food Inspector felt a need for holding such an inquiry. No material has come on the record to show that the Food Inspector had entertained a suspicion with regard to the correctness of the address disclosed to him.

As per the prosecution story, two witnesses namely, P.W. 1 Ram Lal and One Mohan Lal were associated by the Food Inspector at the time of taking of the sample of the milk from the Petitioner. While P.W. Ram Lal is a motor mechanic, Mohan Lal is running a Karyana shop at Shamsherpur. This Mohan Lal who was not examined by the prosecution though cited as a witness, has been examined by the Petitioner in his defence as D.W. 1. The witness has categorically stated that no sample of milk was taken by the Food Inspector from the Petitioner in his presence and that he had signed the memo Ext. PA to Ext. PC on having been brought to him by the Food Inspector. He has further stated that he had merely signed these memos on the asking of the Food Inspector and that the contents of such memos were not read over and explained to him. Nothing could be elicited from this witness during the course of the cross-examination by the Food Inspector, which may show that the witness was in any manner, suppressing the truth or was interested in the Petitioner.

Insofar as P.W. 1 Ram Lal is concerned, he cannot be said to be an independent witness. Though he is running a shop as a scooter mechanic, the Food Inspector has categorically admitted that he is getting his scooter repaired from this witness. The witness, therefore, is well known to the Food Inspector and the possibility of his being available to the Food Inspector as a convenient witness due to his acquaintance cannot be ruled out.

There is yet Anr. significant aspect of the case. It is in the complaint as well as in the statement of P.W. 1 Ram Lal and in the statement of Food Inspector as P.W. 3 that when the Petitioner was intercepted apart from two drums containing milk, he was also carrying a measure of one kilogram. It is also in the statement of the witness that 750 grams of milk was purchased by the Food Inspector as sample. Nothing has come on the record as to how the Food Inspector was able to measure and purchase 750 ml. of milk when the Respondent was having a measure of only one kilogram. Admittedly, no other measure was used by the Food Inspector.

Considering the entire evidence coming on the record, the only irresistible conclusion is that the prosecution has miserably failed to prove to bring home the offence against the Petitioner beyond a reasonable doubt. So much so that the identity of the Petitioner has not been established to be the person from whom the sample of milk was purchased vide Ext. PB and Ext. PC.

Resultantly, the present revision petition is allowed. The conviction and sentence imposed upon the Petitioner by the learned Magistrate and as affirmed by the learned Sessions Judge are accordingly set-aside and he is acquitted of the offence u/s 16(1)(a)(i) of the Prevention of Food Adulteration Act, 1954. The amount of fine, if already deposited by the Petitioner, shall be refunded to him forthwith. The bail bonds of the Petitioner shall stand cancelled and discharged.