State of Haryana vs Sher Chand

R.L.Anand, J. (Oral)

State has filed the present appeal which has been directed against the order dated 5.6.1992 passed by the Court of Chief Judicial Magistrate, Rohtak which acquitted the accused Sher Singh in a complaint under Section 7 read with Section 16(1)(i) of the Prevention of Food Adulteration Act, 1954 (for short the `Act''). Some facts of the case can be noticed as follow :

On 25.1.1985, Shri Megh Nath, Government Food Inspector alongwith Dr. V.K. Sharma had visited the Kiryana shop of accused located at Main Bazar, Meham. At that time, the accused was in possession of 4 kgs. of Haldi Powder. The Inspector disclosed his identity and exhibited his intention to take sample of Haldi powder. 430 gms. of Haldi powder was purchased as sample against the payment of Rs. 7/ vide receipt Ex. PE. The purchased sample was divided into three parts and was put in three dry and clean bottles. The bottles were stoppered, labelled and sealed in accordance with the procedure. Spot memo Ex.PB was prepared and one part of the sample was sent to the Public Analyst for analysis while remaining two parts of the sample were deposited with the Local Health Authority. On receipt of Public Analyst report Ex.PD vide which sample was found to be adulterated, the present complaint Ex.PE was launched against the accused.

The accused appeared and exercised his right under Section 13(2) of the Act. Thus second part of the sample was sent to the Central Food Laboratory for analysis. Vide report mark X, the sample was found to be adulterated as not conforming to the standard of turmeric power laid down in Prevention of Food Adulteration Rules, 1955 as the sample had shown presence of oil soluble coal tar colour and admixture with rice powder.

After evaluating the precharge evidence, the charge in this case was framed against the accused vide order dated 18.11.1988 to which the accused pleaded not guilty and claimed trial.

In his statement recorded under Section 313 Cr.P.C. the accused has pleaded false implication. His only defence is that sample was never taken in his presence. He, however, did not lead any evidence in his defence.

In order to prove the charge, the prosecution examined four witnesses namely Megh Nath, Government Food Inspector as PW1, Shri I.N. Sehgal as PW2, Dr. Usha Majethia as PW3 and Dr. V.K. Sharma, as PW4.

The learned Magistrate for the reasons given in para 10 of the impugned judgment convicted the respondent. Para 10 of the judgment reads as follows :

"In this case, the accused had exercised his right available under Section 13(2) of the PFA Act. Second part of the sample was sent to the Director, CFL on 22.3.1985. However, the report was never received in the Court. Then correspondence was entertained with the Director, CFL who informed that the original report had already been sent to the CFL. On request, duplicate report of the analysis was sent to this Court. That report is not signed by the Director, CFL. The prosecution had never sought permission to lead secondary evidence to prove the report, but simply tendered the same into evidence. As such, that document was never exhibited and was marked as mark X by my learned predecessor. That the fact remains that the report of the CFL has not been proved in this case and thus, the same cannot be looked into to case (base ?) conviction of the accused. After the second part of the sample was sent to the Director, CFL, the public analyst report Ex.PD stands superseded and thus, cannot be taken into consideration.

Aggrieved by the findings of the learned Chief Judicial Magistrate dated 5.6.1992, the present State appeal.

I have heard Shri Sanjiv Sheoran appearing for the State and Shri Harsh Kinra, Advocate appearing for the accused and with their assistance I have gone through the records of the case.

Section 13(2) of the Act lays down as follows :

"13. Report of the Public analyst.

(1) xx xx xx xx

(2) On receipt of the report of the result of the analysis under subsection (1) to the effect that the article of food is adulterated, the Local (Health) Authority shall, after the institution of prosecution against the person from whom the sample of the article of food was taken and the person, if any, whose name, address and other particulars have been disclosed under Section 14A forward, in such manner as may be prescribed, a copy of the report of the result of the analysis to such person or persons, as the case may be, informing such person or persons that if it is so desired, either or both of them may make an application to the court within a period of ten days from the date of receipt of the copy of the report to get the sample of the article of food kept by Local (Health) Authority analysed by the Central Food Laboratory."

A reading of the above would show that the person from whom sample has been taken has a right to apply to the Court within a period of ten days from the date of receipt of the copy of the report to get the sample of the article of food kept by the Local (Health) Authority analysed by the Central Food Laboratory. This is exactly what has happened in this case. Second part of the sample was sent to the Director Central Food Laboratory on 22.3.1985. That report was not received in the Court. Then correspondence was entered with the Director who informed that original report had already been sent to the Central Food Laboratory. On request, duplicate report of the analysis was sent but that report was unfortunately not signed by the Director. Further, the prosecution did not take any permission from the Court of Chief Judicial Magistrate to lead secondary evidence on the report of the Director but simply tendered the unsigned report of the Director which was marked X. So far as the value of the report of Director, Central Food Laboratory is concerned, it supersedes the report of the Public Analyst. It is the case of the State as well as of the Director Central Food Laboratory that sample was tested and report was sent. In these circumstances, the report of the Director for all technical and legal purposes would supersede the report of the Public Analyst which was not received by the Court. On the correspondence entered into between the Court and the Director, a copy of the report was sent but it was unsigned. In these circumstances, the unsigned report could not be relied upon or acted upon by the Court as a result of which there was no other option left with the Court but to acquit the respondent and he has been rightly acquitted. The unsigned report mark X could not be relied upon for the purposes of conviction against the respondent.

Thus I do not find any infirmity in the impugned order dated 5.6.1992. Finding no merit in the appeal, the same is dismissed.