State of Rajasthan vs Ravinder Kumar and Others

A.S. Godara, J.—This appeal has been preferred by the State, by leave under Sub-section (iii) read with Sub-section (1) of Section 378 of the Code of Criminal Procedure, 1973 against the judgment and order passed by the learned Chief Judicial Magistrate, Bikaner in Criminal Case No. 44/77 thereby acquitting the accused-respondents of offence punishable u/s 7/16 of the Prevention of Food Adulteration Act, 1954 (for short "the Act").

The brief facts giving rise to the present appeal are that the accused-respondents were partners of the firm titled "Softy Juice Corner" carrying on the business of manufacturing, storage and sale of softy ice cream at K. E. M. Road, Bikaner. PW-1 Vishnudatt Sharma, Food Inspector, Bikaner on 16-7-76 at about 1 p.m. inspected the above premises and found that the firm was possessed of a valid licence Ex. P. 9 for aforesaid purposes in respect of such articles for food and the accused Shiv Dayal and Loknath were registered partners of the firm. Accused Ravinder Kumar was incharge of the premises conducting business at its corner. Mr. Sharma, Food Inspector, purchased 900 gms. of softy ice cream paying its price of Rs. 15/- vide receipt Ex. P-l. It was taken in a separate clean container and then divided into equal three parts which were further taken in three separate clean and dried containers and a preservative was put in the same and the same were packed, fastened and sealed as per the procedure prescribed. The accused Ravinder Kumar was informed by being supplied with Form No. 6 of the Prevention of Food Adulteration Rules, 1955 (for short "the Rules") that the sample was purchased for the purpose of analysis. A checking memo Ex.P.4 on the spot, in presence of the said accused and the witnesses, was prepared. Two packages of part of the sample were deposited with the local Health Authority while the third one, along with the memorandum in Form No. 7, being Ex. P-5, was deposited with the Public Analyst, Bikaner against receipt Ex. P-6. On its analysis, the part of the sample of the ice-softy so received for analysis was found to be adulterated since the same did not conform to the prescribed standards of purity. The information of the same, vide Ex. P-11, was sent to the accused Ravinder Kumar. Ex. P-8 sanction of prosecution of the accused-respondents for their commission of aforesaid offence was obtained from the District Magistrate, Bikaner and, lastly, Mr. Sharma, F. 1., filed a complaint under the said offence against the accused-persons for their prosecution in the Court of the said trial Court u/s 20 of the Act.

PW-1 V. D. Sharma, F. I. was examined at the pre-charge stage and, thereafter, all accused-respondents were charged for commission of an offence u/s 7/16 of the Act to which they all pleaded not guilty and claimed to be tried and hence, after further cross-examination of PW-1 Mr. Sharma, statements of PW-2 Raman Lal, PW-3 Sita Ram and PW-4 Anil Kumar were recorded. Exs. P-1 to 11 were relied upon.

The accused were examined u/s 313 Cr.P.C. and the accused Ravinder Kumar denied the prosecution story in toto, though quite falsely, while rest of both the accused stated that they were only sleeping partners in the said firm and were not even present at the site of checking. Shiv Dayal also pleaded to be at Delhi whereat he is working as a Contractor. They did not adduce any defence evidence.

After hearing both the sides, the learned Chief Judicial Magistrate, relying on the decision reported in Mohan Lal v. State of Rajasthan 1980 Cri LR (Raj) 223 held that since mandatory compliance of the provisions of the Rules 7 and 17 of the Rules was not made and hence the prosecution and consequential trial of the accused-respondents stood vitiated and hence proceeded to pass a verdict of acquittal in favour of the accused and hence, being aggrieved by the same, the State has preferred this appeal, as above.

I have heard the learned Public prosecutor for the State as well as the learned counsel for the accused-respondents, perused the impugned judgment along with the record of the case.

Since the trial Court, without going into merit factually, disposed of the case purely on a legal point, relying on the aforesaid decision of Mohan Lal''s case (supra), besides, on consideration of ratio laid down in the decisions rendered in State of Haryana Vs. Isher Dass, and State of Punjab v. Bhagwandas Jain (1981) 1 FAC 291 : 1981 CriLJ 487 (Punj and Har) (FB), it is found that when the part of sample is sent to the Public Analyst and there is no compliance of the Rules 17 and 18 of the Rules, both being interlinked and pan of the same scheme "which would enable the Public Analyst under Rule 7(1) of the Rule; compare the seals on the container of the sample and outer cover, for which there is no evidence, with specimen impression of seal received separately to note the condition of seals thereon and, presently, PW-1 V. D. Sharma is completely silent in regard to such compliance, the learned trial Magistrate cannot be said to have taken any erroneous view of the prosecution evidence be* sides the non-compliance and consequential effect in the prosecution case. Since PW-1 V. D. Sharma himself did not say a word in regard to compliance of Rules 17 and 18 and the receipt Ex. P-6 in token of receipt of the part of package of sampel too does not mention about the condition of the sample-package and hence a mere affixing of a seal on Ex. P-7 report of Analyst, in absence of examination of the Analyst specially in complete absence of statement of PW-1 V.D. Sharma about the compliance of the said Rules, it cannot be held to be proved beyond doubt that there was compliance of the said Rules. Therefore, apparently, the impugned judgment cannot be termed to be perverse. Besides, this incident took place on 16-7-76, i.e., more than 20 years before and hence having regard to the decisions reported in Darshan Lal v. State of Rajasthan 1990 CriLR (Raj) 247 , State of Rajasthan Vs. Sunder Das, and State v. Shanti Lal 1989 Cri LR (Raj) 389 in totality, looking to the nature of the evidence and the findings, arrived at by the Chief Judicial Magistrate resulting in acquittal of the accused-respondents, who have withstood and laced the agony and ordeal of facing trial and appeal for well over 20 years, calls for no interference.

As a result, I do not find any compelling ground to accept this appeal.

Therefore, this State appeal is dismissed and the impugned judgment and order of acquittal of the accused-respondents are affirmed.