Municipal Council, Jammu vs Sadiq Mohd.

Arun Kumar Goel, Judge.

1 .Heard learned counsel.

2.This appeal is directed against the judgment passed by learned Additional Sessions Judge, Jammu, in File No. 1Cr. Appeal, on 17.3.1983.

Appellant is aggrieved by the said judgment since it has resulted in the acquittal of the respondent, who was convicted by the trial Magistrate for

having allegedly committed offence under Section 7/16 of the Prevention of Food Adulteration Act, 1954, (hereinafter referred to as 'the Act').

3 .Brief facts giving rise to this case are that PWMehar Singh Dutta, Food Inspector, was at Gandhi nagar, Jammu, on 13.9.1980, when he found

that the respondent was in possession of 10 kg. of milk meant for sale for public consumption in the area of Gandhi Nagar, Jammu. At such time,

this PW was accompanied by Preetam Singh, Sanitary Supervisor.

4.After having disclosed his identity as well as intention to draw sample of milk for getting it analysed, sample of milk was drawn against payment

of Rs.1.70 paise at the spot. Further case of the appellant is that milk was stated to be mixed milk. As per clause A.I 1,01, 05a of the Appendix B

of the Prevention of Food Rules it was required to have 4,5% of the milk fat and8.5% milk solid not fat as its contents. PW Mehar Singh has

further gone on record to state that after drawing the sample it was put in a utensil and was distributed in three equal parts. Therefore, the milk was

transferred into three dry and clean bottles. This was followed by addition of 20 drops of formaline as a preservative and bottles were packed as

well as properly wrapped and sealed as required under the provisions of the Act and the Rules framed thereunder. Form No. VII was prepared at

the spot and was delivered alongwith one bottle of sample to the Public Analyst for analysis, whereas other two samples alongwith Form No. VII

were delivered in the office of Local Authority by him. It is further case of the appellant that specimen impression alongwith Form No. VII was

also sent separately by registered post to the Public Analyst.

5.On the analysis, sample was found to be adulterated as it contained 5% milk fat and 6.20% milk solids not fat against the prescribed standard

referred to hereinabove. On receipt of this report, appellant claims that copy of said report of the Public Analyst was sent to the respondent by

registered post, which was received back undelivered with the endothersement that there is not such person residing at the address given.

6 .Before filing the complaint out of which present appeal has arisen, Local Health Authorities, Municipal Authority, Jammu on 20.10.1980

accorded necessary sanction authorising PW Mehar Singh Dutta, Food Inspector, to launch prosecution against the respondent. This resulted in

filing of the complaint against the respondent.

7.During the course of process of taking sample, one Madan Mohan was also associated by PW Mehar Singh, who is stated to be the scribe of

receipt, EXPC. Copy of the report of Public Analyst was delivered to the respondent in court premises after prosecution had been launched. This

fact is stated by P W Mehar Singh as well as by the other PW Rehmat Ali, in whose presence it was delivered in the court compound. Trial

Magistrate convicted the respondent after conclusion of the trial. On appeal the judgment of the trial court has been reversed, hence this appeal.

8.For the reasons stated hereinafter this appeal has no merit and is liable to be dismissed. Before a sample is drawn it is the duty of the Food

Inspector to ensure that the sample is a representative sample of the whole stuff which is found with the vendor, respondent in the present case. In

the case of milk its stirring was necessary and imperative so as to make it a representative sample of the whole 10 Kg. of milk that is stated to have

been found with the respondent which was meant for sale for Public consumption. PW Mehar Singh has not said a word in that behalf. Not only

this, when statement of this PW is examined which was read in extension by Shri Nanda there is not a word said whether the utensil wherein the

milk was put was neat and clean or not, though he has stated that the bottles wherein milk was transferred from the utensils were neat, clean and

dry. Purpose of making a sample to be a representative is that in case there is any settlement of constitutes of the milk fat or milk solids, they all get

mixed up after those have been properly stirred. Purpose of stiring is to make the sample homogeneous. What is the effect of nonstirring the milk

out of which the sample is drawn.

9.In addition to this there is nothing in the complaint filed by PW Mehar Singh Dutta in the court below, that he had in fact stirred the milk in the

Can containing 10 Kg. milk before drawing the sample. So even if he had said so, still his such evidence could not be looked into. Because he had

not laid any foundation in his complaint and the statement would only be afterthought. As such his statement could not be accepted. Sample has to

be representative. See 1991 (1)F.A.C55, '""State of Himachal Pradesh Vs. RupChand"", 1982(2)F.A.C372; ""Food Inspector, Municipal

Corporation Baroda Vs. Mandahial Ramial Sharma and another"", 1986 (1) F.A.C.153 ""State Vs. Kasturi Lal"", and 1985 (1)FA.C.6, ""TaraChand

Vs. State of Haryana"". Now coming to the sanction which is stated to have been according by the local Health Authority on 20.10.. 1980. It is not

in dispute that unless sanction is accorded by the competent authority. Local Health Authority, Municipality Jammu in the present case, no

prosecution could have been launched against the respondent. As such it has to be seen that there is valid sanction in accordance with law before a

prosecution is launched. The purpose of authorising senior officers to examine the case and then pass suitable orders is that frivolous and vexatious

prosecution is avoided. For according/refusing sanction the authority concerned has to examine the entire record relating to the case in question

and then pass the orders after making up its mind. It is not a mere ritual muchless a formality. Sanction has not been proved on record in

accordance with law, though Shri Nanda urged that statement of PW Mehar Singh clearly proves the same, therefore it needs to be accepted and

declared to be valid.

10.This argument is attractive but when examined with reference to the mode of proof of documents it cannot hold the ground. This could be

proved either by the person who ac. corded sanction or by the person who had filled in the blanks in the typed proforma by stating that the

signatory thereof had examined the matter and on consideration thereof had passed the necessary orders or the later had filledin the form at the

instance of the former. There is no such evidence.

11 .Reason not to accept plea the that sanction is proved is that it is filled in, in the hand of somebody else and signed by somebody else. Another

reason not to accept the sanction being as per law is that on the face of it, it cannot be that sanctioning authority was seized of the whole matter

and it was only thereafter that he put in his signatures according the sanction in question.

12.It may be worthwhile to notice that there is nothing m the statement of PW Mehar Singh to suggest that when Local Health Authority,

Municipality Jammu appended his signatures on the sanction, he was present. Cumulative effect of all these circumstances is that there is no

sanction within the meaning of Section 20 of the Act. See ""State of Himachal Pradesh Vs. Rup Chand"" (supra) 1989 (2) F. A.C. 190, ""Rattan Lai

Vs. Slate of H.FM989 (1)F.A.C. 387, ""Ms. Shakun and another Vs. Delhi Administration"", 1989 (2) F.A.C. 88, ""State Vs. Mussa"".1989 (2)

F.A.C. 91, ""Satish Kumar Bhatia Vs. State of H.P. and others"", and 1989 (2) F.A.C. 149, ""Public Health Department Vs. Jiwanlal.

13.Nonproduction of Madan Mohan, independent witness associated by PW Mehar Singh and who is the scribe of receipt, Mark ""A"" is also a

good reason not to interfere with the judgment of the appellate court below. It is not the case of the appellant that either independent witness was

not available or when attempt was made such a witness refused to come before the court. Only argument put forth by Shrj Nanda is that when

evidence of other witness is appreciated, nonproduction of Madan Mohan, independent witness is immaterial and does not affect the merit of the

prosecution case.

14.1t may be noted here that merely because PW Mehar Singh and other persons who are official witness have not said anything about the same

will not discard their evidence. However, legislature with a view to add credence as well as to ensure corroborative evidence has enacted the

provisions of Section 10 of the Act. It is further not the case of the appellant that the witness was not either available or his presence could not be

procured without delay or that he had been won over. In these circumstances lower appellate court was justified in drawing adverse inference due

to nonexamination of this witness.

15 .Shri Nanda after referring to the evidence of the witnesses examined during the course of trial forcefully urged that there is enough evidence to

uphold the judgment of the trial court by allowing this appeal. This argument need not be gone into for the aforesaid reasons. Besides this, sample

was drawn more than 181/2 years ago. It would not be in the fitness of things to allow sword of Damocles to hang around the neck of the

respondent. No other point was urged.

16.As a result of aforesaid discussion, there is no merit in this appeal which is dismissed accordingly. Fine, if deposited, shall be refunded to the

respondent after proper identification. Bonds are discharged.