Ram Singh vs State of M.P.

U.C. Maheshwari, J.

The applicant-accused stood convicted u/s 7(1) read with section 16(1)(a)(i) of the Prevention of Food Adulteration Act, (in brief ''The Act") and awarded R.I. for six months and fine of Rs. 1000/- by the trial Court vide judgment dated 22-3-1994 in Criminal Case No. 773/93 which was affirmed by the Additional Sessions Judge, Panna in Criminal Appeal No. 36/94 vide judgment dated 29-11-1997, hence this revision preferred for setting aside the said conviction.

The factual matrix of the prosecution case are that on 14-3-1993 at about 11 a.m. when the applicant was carrying the milk in cans on his own bicycle and was anticipated by the Food Inspector and given a notice for sampling and in response of it 750 ml. milk was taken and by adopting the prescribed procedure same was stirred and one part of the sample was sent to the public analyst for examination. On examination said milk was not found as per standard prescribed under the Food Adulteration Rules and according to the report of the public analyst the sample was not found with the conformity of the norms. On receiving such report by getting requisite sanction from the authority the Food Inspector initiated the complaint before the Trial Court under the provision of Prevention of Food Adulteration Act and on recording the plea against the applicant the evidence was recorded and on appreciation applicant was found guilty and convicted, as said above. On appeal the same was affirmed by dismissing the appeal, hence this revision.

Having heard learned counsels for the applicant and the State and on perusal of the record, I am of the considered view that this revision deserves to be allowed.

Learned counsel for the applicant Mr. Alok Tapikar raised the following questions for setting aside the judgment of the Courts below :-

a. During the course of sampling the rules 17 and 18 of the aforesaid Act were not complied by the Food Inspector.

b. The necessary dates regarding analysis of the said milk were not brought on record. Therefore, it cannot be said that sample was not confirmed as per prescribed norms under the abovesaid rules.

c. Notice as required u/s 13 (2) of the said Act was neither given nor served over the applicant as per prescribed procedure.

d. The prosecution was launched after a long delay and due to this right of the applicant to examine the sample from the central food laboratory was lost as he has been deprived by valuable right.

In view of the said grounds he prayed for setting aside the judgment of the Courts below and to acquit the applicant.

While other hand learned counsel for the State Mr. J. K Jain supported the judgment and justified the findings of the Court below and prayed for dismissal of this revision.

On consideration of the aforesaid submission, I have carefully examined the entire record of the trial Court. As per seizure memo Ex. P/5 prepared by the Food Inspector the entire procedure as mentioned in Rule 17 and 18 of the aforesaid Act were followed because before taking the milk, it was stirred and homogeneous and then the sample milk was divided in three parts and also sealed by putting the preservative and covered by papers and paper slip and also tacked with the thread and said Panchnama was proved by R. K. Mishra, the Food Inspector, (PW-1) and his testimony regarding aforesaid was not destroyed in entire cross examination and this was further supported by another Food Inspector D. L. Shrivastava, (PW-2). Therefore the first argument of the applicant is not sustainable and it fails.

So far non-mentioning of necessary data''s in public analysis report is concerned, I have not found any substance in this argument because as per prescribed standard in the provision of Food Adulteration Act all tests were carried out and results were also mentioned in the report. Ex. P/13 in which fat solid, not fat, test for starch and test for formalin have been mentioned. Therefore, this arguments has also no force and the same also fails.

So far notice of section 13 (2) of the Act is concerned, the notice dated 4-11-1993, Ex.P/16 is evident on record and the same was sent through registered post to the applicant as per testimony of the said Food Inspector, R. K. Mishra (PW-1) and not only it was sent but it was served as per Ex. P/17 which is acknowledgment due receipt signed by the applicant. Thus, I hold that notice under the aforesaid provision was sent to the applicant. Therefore this argument is also not sustainable.

So far his last submission is concerned I have found some substance in it. As per Ex. P/3 the notice to purchase the milk for analysis and the receipt of selling milk signed by the applicant and seizure memo of the sample all have been prepared on the same day, i.e. on 14-3-1993 and one of the samples was sent to State Food Laboratory for analysis by the registered post receipt Ex. P/6 and form No. 7 Ex. P/8 was also sent by registered post as evident Ex. P/7 on dated 15-3-1993 and remaining samples were deposited with the local health authority on 15-3-1993 by Ex. P/9. Thus, samples were received by the Local Health Authority as it is evident from Ex. P/9 and Ex.P/10. As per letter dated 12-5-1993 issued by Dy. Director Food & Drugs Administration, Panna, Ex. P/12, the report of the Public Analyst dated 7-4-1993, Ex. P/13 was received by dated 21-4-1993. Thereafter within 7 days the remaining samples which were kept with the Local Health Authority and the complaint was not submitted before the Trial Court. Even sanction was not given within this period and according to Ex. P/14 a sanction for prosecution of the applicant was given only on 3-11-1993 Ex. P/15 and on the strength of this sanction the prosecution was initiated against applicant on 4-11-1993 which is just after 7 months and 20 days. Thus it is apparent that at very belated stage the prosecution was launched and thereafter on 4-11-1993, Ex. P/16 a notice u/s 13 (2) of the Act was given to the applicant.

It is not in dispute that right to examine the remaining sample from Central Food Laboratory was a valuable right of the applicant and this could not be destroyed by the prosecution and it is settled position of law that after 6 months the preservative mixed with the milk has lost its strength as deteriorated and the sample does not remain fit for analysis. In this situation when the complaint was initiated after more than 7 months when the remaining sample had become deteriorated and not fit for analysis and then aforesaid notice u/s 13(2) was given which was apparently after deterioration of the remaining sample so the applicant was deprived to examine the same from Central Food Laboratory. So this cannot be said that the application u/s 13(2) of the Act was not moved by the applicant even after receiving the said notice Ex. P/16, therefore he cannot get benefit of the said provision. For the sake of argument if such an application was moved instead that right could not be exhausted by the applicant in view of deterioration of the sample.

My aforesaid view is supported by the decided case of this Court in the matter of Shiv Dayal Vs. The State of Madhya Pradesh, in which it was held as under :-

Held, that in any case by the time the accused appeared the sample would have deteriorated and that in the circumstances accused was deprived of his right u/s 13(2) because of the inordinate delay in launching prosecution and he was entitled to acquittal. Municipal Corporation of Delhi Vs. Ghisa Ram, , Ref. (Paras 6, 7). Quoted from Placitum.

In view of the aforesaid, it is apparent that the applicant was deprived by his valuable right u/s 13(2) of the Act and when the notice was sent till then the sample was already deteriorated and this aspect was neither examined nor considered by the Courts below and due to this apparent perversity the judgment of the Courts below are not sustainable in law.

Therefore, I allow this revision and set aside the judgment of the Courts below and acquit the applicant. The bail bond of the applicant is hereby cancelled. If any amount of fine was deposited by the applicant the same be refunded to him.

The revision stands allowed.