State of Himachal Pradesh vs Noor Din

Bhawani Singh, J.—It is against the acquittal of the accused Noor Din, in Cr. Appeal No. 58 of 1983, decided on 23-34985 by the teamed Sessions Judge, Kangra Division, u/s 16(1)(a)(i) of the Prevention of Food Adulteration Act, 1954 (Hereinafter referred to as ''the Act'') that the State has filed the present appeal.

The facts, in brief, arc that on 9-8-1982 Shri Jagat Ram, Food Inspector (P.W. V), intercepted the accused at Dogra Bazar, Chamba, while carrying one tin of desi ghee for sale. Sample to the extent of 450 gms. On payment of Rs. 13.50, after serving a notice, as required, on the accused, was taken. After undergoing the formalities as required under the Act and the Rules, the same was sent to the Public Analyst for analysis and it was found, after analysis (Ex. PW) dated 21-9-1982, as under.

I have caused to be analyzed the aforementioned sample and declare the result of my analysis to be as follows:

Butyrorefractometre regarding at 40� C is 45.0

Raichart value =26.7.

Tree fatty acide =2.9 %

Moisture =7.0 %

B.T. = Negative.

And I am of the opinion that the Butyrorefractometre reading at 40�C is 45.0 not within the prescribed limits of variability''s i.e. 40.) to 43.). The moisture is in excess by 6.5% that maximum prescribed limit.

The accused was prosecuted and on his pleading not guilty, the trial proceeded and ended in the conviction of the accused. In appeal, the accused succeeded before the learned Sessions Judge vides the impugned judgment.

The defense of the accused has been that he was not intercepted by the Food Inspector (P.W.1) at Dogra Bazar, Chatnba, as alleged, as a matter of fact, the Food Inspector came to the shop of Metadata (P.W. 4), a {wholesale dealer in desi ghee. He further states that he was no longer the owner of the ghee as, by this time, the same had been sold to Metadata (P.W. 4). He admits receipt of notice to him by the Food Inspector (P.W. 1) at the time of taking the sample as well as on Panchnama but alleges that he signed the same as a witness.

The learned Counsel for the State, Shri M.S. Guleria, Assistant Advocate General, has raised two submissions. The first relates to the decision of the learned Sessions Judge relating to the point that the Public Analyst must, in his opinion, mention the fact of the article analysed being adulterated as well as the same being injurious too health u/s 2(ia)(m) of the Act.

On the other hand, Shri D.D. Sood, learned Counsel appearing for the accused, has supported the findings of the learned Sessions Judge on this point and has elaborated the submissions by asserting that the Public Analyst has just given a narration of his analysis only and no opinion has been given as to the article being adulterated nor has it been opined that the same is injurious to health. Such a report, the learned Counsel contends, is inaccurate, vague and incomplete. He seeks assistance to support his point: by referring to a decision of Madhya Pradesh High Court, namely, Gaff or Khan v. The State of M.P. and Anr. 1984(1) F.A.C. 79. I am in respectful agreement with the views expressed by the learned Judge in this case and proceed, therefore, to ho]d this point in favor of the accused and confirm the finding of the learned Sessions Judge on this point.

The second submission relates to the point of sanction. The learned Counsel refers to the decision of this Court in Criminal Appeal No. 47 of 1985 (State of H.P. v. Mussa), decided op. January 6, 1989, and argues that in view of this (coition, the proceedings against his client are without jurisdiction. I mace an effortless look into the fije to examine on merit the nature pf sanction if the same falls within the principles laid down in Mussa''s case, but sanction order is not available on the file The statement of Shri Jagat Ram, Food Inspector (P.W. 1), was perused to find out if there is any reference to the same in his sepssfaeither he has stated anything about it nor proved the same by placing a copy thereof on the record of this, case. Invievpfthis, e, aestiPofthesame, biexanined by this Caught tenth light office decision, of this Court (Mussa''s caesura) even does not arise. In the circumstances, it can be safely held .that ''the prosecution is without any sanction. So, obviously without jurisdiction.

In view of the aforesaid discussion and conclusions, the result is that this appeal fails and is accordingly dismissed? The bail bond and surety bond, if any, executed by the accused at any stage, of the, case are hereby cancelled.