State of Himachal Pradesh vs Jagdish Chand

Vivek Singh Thakur, J.

1.This appeal has been preferred by State against judgment, dated 18th April, 2007, passed by the learned Additional Sessions Judge, Shimla, Camp at

Rohru, in Criminal Appeal No. 30ÂR/10 of 2004/02, whereby conviction of respondent vide judgment, dated 5th September, 2002, passed by learned

Additional Chief Judicial Magistrate, Rohru, in Criminal Case No. 21Â3 of 2000 in complaint under Section 16 (1) (a) (i) of the Prevention of Food

Adulteration Act, 1954 (hereinafter referred to as 'the Act') has been reversed and the respondent has been acquitted on the ground that there was

nonÂ​compliance of mandatory provisions of Section 10 (7) of the Act.

2.On previous date, hearing of this appeal was adjourned for nonÂappearance of learned counsel for the respondent. Today also, there is no

representation on behalf of the respondent. Therefore, during preÂlunch session, Mr. Karan Sharma, Advocate, present in the Court, was requested

to assist the Court on behalf of the respondent in the interest of justice. He graciously accepted the request and assisted the Court after going through

the record made available to him. This Court places a word of appreciation for the valuable assistance rendered by him.

3.I have heard learned Deputy Advocate General as well as the learned Amicus Curiae and also gone through the record.

4.The only issue involved in present case is as to whether the Food Inspector had complied with the provisions of Section 10 (7) of the Act or not. It is

undisputed that compliance of provisions of Section 10 (7) of the Act is mandatory for the Food Inspector and non compliance thereof, unless

reasonably explained, would certainly be fatal to the prosecution case.

5.Learned Deputy Advocate General, while referring to statement of PWÂ2 Ashok Kumar made in cross examination and that of PWÂ3 B.L.

Justa, Food Inspector, made in examinationÂinÂchief as well as crossÂexamination, has contended that the Food Inspector had made the efforts to

associate independent witnesses in compliance of Section 10(7) of the Act, but, no person had agreed to associate himself in the proceedings and,

thus, nonÂ​compliance of the said provision of the Act is not fatal.

6.In support of his contention, learned Deputy Advocate General has relied upon pronouncement of the apex Court in case titled as Ram Labhaya

versus Municipal Corporation of Delhi and another, reported in 1974 Cri.L.J. 672, wherein it has been held that Section 10 (7) of the Act casts an

obligation on the Food Inspector only to call one or more persons to be present on the spot when he takes action and he could not certainly compel

their presence and, therefore, prosecution is relieved of its obligation under these provisions as and when the effort is made by Food Inspector to

associate independent witnesses by calling them to join the investigation and nonÂcompliance of Section 10 (7) of the Act on refusal of such persons

to join the investigation will not vitiate the trial.

7.He has argued that in present case also, Food Inspector had tried to associate the independent witnesses, but, on their refusal, he was constrained to

associate PWÂ​2 Ashok Kumar, a peon of the Department, who was accompanying him at the time of taking sample.

8.From the careful scrutiny of the record as well as the statements of PWÂ​2 Ashok Kumar and PWÂ​3 B.L. Justa, Food Inspector, it appears that the

contentions of the learned Deputy Advocate General are not tenable for the reasons recorded hereinafter.

9.PWÂ3 B.L. Justa, Food Inspector, in his examinationÂin chief, has stated that before taking samples, he had asked the persons to associate them as

witnesses, but, they refused to sign. In his crossÂ​examination, he has denied the suggestion put to him that he had not called any independent witness.

10.PWÂ2 Ashok Kumar, who was working as a peon in the CMO Office at the relevant point of time and was accompanying PWÂ3 B.L. Justa,

Food Inspector, during the process of taking the sample, has stated that one witness, present in the shop, was asked by the Food Inspector for

associating as a witness during sample taking process, but he had refused to do so.

11.It is categoric statement of PWÂ2 Ashok Kumar that one person present in the shop was asked by the Food Inspector to join the investigation,

however, as per statement of PWÂ3 B.L. Justa, Food Inspector, he had asked the 'persons' to join the investigation whereas PWÂ2 Ashok Kumar, in

his crossÂexamination, has admitted that they had not called the witnesses from the market or shops. Both these witnesses are public servants and

working in the same office, therefore, it cannot be said that any of them would have made the statements to help the accused.

12.Moreover, the samples were taken from the shop situated in the market, there would have been shopkeepers in the adjoining shops. PWÂ2 Ashok

Kumar, in his cross examination, has admitted that in the market and shops, a large number of people remain present, but no witness was called

from the market or from the shops. PWÂ3 B.L. Justa, Food Inspector, has not disclosed as to who were the persons asked by him to join the

investigation, rather, in his cross examination, he has expressed his inability to disclose the names of the persons whom he had called to join the

investigation. There is no evidence on record with regard to the efforts made by him to associate the neighbouring shopkeepers or customers in the

process of taking samples from the shop of the respondent. Therefore, there is no sufficient evidence on record so as to establish that PWÂ3 B.L.

Justa, Food Inspector, had made any endeavour to join the independent witnesses, as required under Section 10 (7) of the Act.

13.PWÂ3 B.L. Justa, Food Inspector, in his deposition before the Court, has also admitted that PWÂ2 Ashok Kumar is his peon and is witness in his

every case. Therefore, PWÂ​2 Ashok Kumar can also be termed as a stock witness and, thus, his statement is liable to be discarded.

14.Viewed thus, the statements of PWÂ2 Ashok Kumar and PWÂ3 B.L. Justa, Food Inspector, render doubt about the deposition of these witnesses

with regard to the efforts made to associate the independent witnesses before taking the sample.

15.So far ratio of law laid down in the judgment (supra) referred by learned Deputy Advocate General is concerned, there is no quarrel qua that. But,

in the said case, it was established on record that the Food Inspector had made serious efforts to join the independent witnesses in compliance of

Section 10 (7) of the Act, but, all the independent witnesses had refused to join the investigation. Therefore, the judgment referred (supra) is

distinguishable on the facts of the case.

16.Learned Deputy Advocate General has also referred to observations of the apex Court in para 4 of the judgment (supra) wherein it has been held

that since the Food Inspector was not in a position of an accomplice, his evidence alone, if believed, can sustain the conviction. Learned Deputy

Advocate General has failed to notice that this observation has been made in continuation of the findings wherein the apex Court has held that the

Food Inspector had made a sincere endeavour to comply with the provisions of Section 10 (7) of the Act and as he was not able to comply with the

said provision on refusal of the persons approached by him, his statement alone was considered sufficient to convict the accused. The ratio of law laid

down in the judgment (supra) is not at all that where the Food Inspector has not made efforts to call and associate any independent witness, conviction

can be made on the basis of sole statement of the Food Inspector.

17.No doubt, it is settled law that conviction can be based on the sole statement of Food Inspector if it inspires confidence, however, it does not mean

that it entitles the Food Inspector to give a goÂby to the mandatory provisions of Section 10 (7) of the Act discharging him from the obligation of

joining the independent witnesses in his action. Had it been found that he had made a sincere effort to associate the witnesses and despite that

witnesses could not be associated, the things would have been different and definitely, then the accused would not have been entitled for acquittal on

account of violation of provisions of Section 10 (7) of the Act as practically, there would have no such violation for the sincere efforts made on behalf

of the Food Inspector. In present case, there is no cogent, reliable or plausible evidence to establish that the Food Inspector had made any sincere

effort to associate the independent witnesses/persons, rather, the contradictory statements of PWsÂ2 and 3 cast doubt on veracity of their statements

in this regard.

18.In view of above discussion, I find no infirmity or material irregularity in appreciation of evidence on record by the learned Additional Sessions

Judge, especially, with respect to violation of provisions of Section 10 (7) of the Act. Learned Additional Sessions Judge has appreciated the evidence

on record completely and correctly and it cannot be said that acquittal of respondent has resulted into travesty of justice or has caused miscarriage of

justice. Rather, for want of sufficient evidence on record establishing the effort of Food Inspector to comply with provisions of Section 10 (7) of the

Act, present appeal must fail.

19.Therefore, acquittal of respondent by the learned Additional Sessions Judge vide impugned judgment is upheld and the appeal is dismissed. Bail

bonds furnished by the respondent and his surety are discharged.Record be sent back to the learned trial Court.