State of Himachal Pradesh vs Umar Din

Bhawani Singh, J.—The State of Himachal Pradesh has, by this appeal, assailed the judgment of acquittal passed by the learned Additional Sessions Judge, Kangra Division Camp at Chamba, in Criminal Appeal No. 77 of 1982 decided on 24-8-1982.

The facts, in brief, are that Food Inspector Jag at Ram (P. W. 1) purchased 660 miss. Milk on payment of Rs. 1.30 from the accused for the purpose of analysis. After dealing with the sample as per the requirements under the Act and the Rules, the same was sent for analysis after depositing rest of the two with the Local Health Authority, Chamber, Analysis found contents of milk fat deficient by 56% and milk solids not fat by 29% than the minimum prescribed standard. As a result, prosecution was launched for selling adulterated milk u/s 16(1)(a)(i) of the Prevention of Food Adulteration Act. After trial, the trying Magistrate sentenced the accused to undergo six months simple imprisonment and a fine of Rs. 1,000/- and in default of payment of fine, to is flier further imprisonment for two months.

The accused succeeded in his appeal before the learned Additional Sessions Judge, hence this appeal by the State of Himachal Pradesh.

Shri M.S. Guleria, learned A assistant Advocate General, successfully assails the decision of the learned Additional Sessions Judge holding Rule 7(3) mandatory in nature in view of the decision of this Court in State of Himachal Pradesh v. Punnu Ram 1985(1) FAC 91 and Criminal Appeal No. 19 of 1986, State of Himachal Pradesh v. Kesliav Chand.

Shri Rajiv Sharma has assailed the present prosecution against his client on the ground that there is no compliance u/s 13(2) of the Act. He submits that the sample was taken on October 25, 1981, report of the Public Analyst was received on 11-1-1982 and prosecution was launched on 21-1-1982. Notice u/s 13(2) (Ex. PW. 3/A) was issued on 2-6-1982, after a period of eight months. In view of this, Shri Rajiv Sharma submits that the sample being of milk is rendered useless for further analysis on the part of his client consequently, this provision being mandatory in nature, the prosecution against the accused must fail on this account alone.

In support of the above submission, Shri Rajiv Sharma learned Counsel for the accused, seeks assistance from 1975(1) F.A.C. 186 {Municipal Corporation of Delhi v. Ghisa Ram) 1972 F.A.C. 732 (Resham Singh v. the State of Punjab) 1984 FAJ 299 (State of Himachal Pradesh v. Shri Loki Nand) 1985(1) FAC 135 (Des Raj v. State of U.P. and Anr.) 1987 F.A.J. 442

I am in respectful agreement with this principle decided in these judgments and hold that in the present case there is violation of Section 13 of the Act and hold that the prosecution of the accused under these circumstances is illegal irrespective of the fact whether or not the accused made use of his part of the sample for the purposes of analysis.

The last point raised by the learned Counsel for the accused relates to sanction to launch the prosecution. The record of this case does not reveal any such sanction having been obtained before proceeding against the accused. The prosecution fails on this account as well.

The net result of the aforesaid discussion is that there is no merit in the appeal and the same is accordingly dismissed. The bail bond and surety bond, if any executed by the accused at any stage of the case are hereby cancelled.