State of Himachal Pradesh vs Rup Chand

Bhawani Singh, J.—By this appeal, the State has challenged the acquittal of the accused by the trial Judge in case 15/A III of 1984 decided on 28-5-1986 relating to offence u/s 16(1)(a)(1) of the Food Adulteration Act (hereafter called the Food Act).

The case is that Shri K.S. Verma (PW-2) intercepted the accused while he was carrying about 35 kgs. of buffaloe''s milk in four cans for sale in Nadaun town The accused was stopped near the shop of Joginder Kumar (PW-4) and the Food Inspector purchased the milk from the accused for the purpose of sample. The sample was divided into three parts and one of the parts was sent for analysis while others were retained by the local health authority. The Public Analyst reported that the percentage of milk fats was deficient by 30% and milk solids not fat by 32% cf the minimum prescribed standard. As a result of this report, the accused was challaned after sanction u/s 20 of the Act. After the conclusion of the trial, the accused was acquitted since the prosecution failed to prove the case against the accused.

Learned Counsel for the State, Shri Ram Murti Bist, referred to the statements of the witnesses in this case and submitted that the trial Court judgment is not in accordance with law and the evidence on the record. However, Shri A.K. Goel, learned Counsel for the accused argued three points in this case. Let these be examined.

The first point taken by Shri A.K. Goel is that the milk sample was not a representative sample therefore the report of the public Analyst on the basis of this kind of sample cannot be made use of against the accused. Reference to the evidence on record discloses that although the Food Inspector has made an effect to substantiate this aspect of the matter, however, Shri Vijender Kumar (PW-1) one of the two independent witnesses in the present case has not at all supported the Food Inspector. He has, as a matter of fact, clearly demolished the whole prosecution version against the accused. The other independent witness in the case is Joginder Kumar Halwai (PW-4). Shri A.K. Goel submits that the evidence of this witness cannot be relied upon since he is not truly an independent witness, being a Halai and an interested person to support the version of the Food Inspector. I see substance in this kind of submission for the simple reason that Joginder Kumar, Halwai (PW-4) is a person who is obviously carrying on the business and has also the apprehension of being caught by the Food Inspector. It is not understood why this kind of witness was associated. The Food Inspector could associate any number of other independent witnesses in the case since large number of people were available at the place where the sample in this case was taken. Hence, in this view of the matter it is difficult to believe the version of this witness. Suhara Ram (PW-2) has also supported the case of the accused that the milk was not properly stirred before the sample was taken. The result, therefore, is that it is not proved that the milk was properly stirred and was made homogeneous before the sample was taken. It has been held in large number of cases of this type that before sample is taken, the milk has to be properly stirred to make it homogeneous for accurate examination (See 1982 (2) F.A.C 572 Food Inspector, Municipal Corporation Baroda v. Madanlal Ramlal Sharma and Anr. 1986 F.A.C 153, State v. Kasturi Lal 1986 (II) Tara Chand v. State of Haryana and these decisions were followed in Criminal Appeal No. 29 of 1987, State of Himachal Pradesh v. Nazir Singh decided on 26-7-1990

The next submission relates to the sanction part of the case. Counsel for the accused showed the sanction (Ex. PF) in order to submit that it is not sanction in the eyes of law and the accused cannot be prosecuted on this kind of sanction. My examination of this document discloses that it is a cyclostyled form, columns of which have been filled up by the authority concerned. From this it is difficult to conclude that the authority concerned applied its mind to the case before coming to conclusion that initiation of prosecution against the accused is in public interest. It has been held in large number of decisions that the authority before granting the sanction has to apply its mind to the case and come to a definite conclusion that the prosecution of the accused is in public interest. See: 1990( 1) SLC 126, Rattan Lal v. State of H.P. 1989 (1) FAC 387, Ms. Shakun and Anr. v. Delhi Administration 1989 (2) FAC 88, State v. Mussa 1989 (2) FAC 91, Satish Kumar Bhatia v. State of H.P. and Ors. 1988 (2) FAC 149, Public Health Department v. Jiwanlal. The result is that there is no merit in this appeal and the same is accordingly dismissed.