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CASE NO.:

Appeal (crl.) 1109 of 1997

PETITIONER:

State of H.P.

RESPONDENT:

Narendra Kumar and Anr.

DATE OF JUDGMENT: 16/02/2004

BENCH:

DORAISWAMY RAJU & ARIJIT PASAYAT.

JUDGMENT:

JUDGMENT

ARIJIT PASAYAT, J

The State of Himachal Pradesh calls in question

legality of judgment rendered by learned Single Judge of the

Himachal Pradesh High Court affirming judgment of the trial

court holding that respondent no.1 (hereinafter referred to

as ’the accused no. 1) was not quilty of the accusations

under Sections 16(1)(a)(i) of the Prevention of Food

Adulteration Act, 1954 (in short the ’Act’).

The prosecution version which led to trial of the

accused is essentially as follows:

On 11.4.1985. the Food Inspector took sample of

"Shakkar" from the shop of the accused no. 1. He purchased

600 gms. of "Shakkar" for analysis after serving the

requisite notice. Thereafter sample articles were sealed and

one such sample was sent to the Public Analyst for analysis.

On analysis the sample was found to be containing

unpermitted acid coal tar of orange shade. Prosecution was

launched after service of notice in terms of Section 13(2)

of the Act. During trial, the accused no. 1 applied under

Section 19(2) seeking to implead Jain Trading Company

represented through its manager- respondent no.2

(hereinafter referred to as ’the Vendor’). The vendor was

impleaded as accused no.2. In order to establish its

accusation, the prosecution examined 4 witnesses and

produced the record relating to the sanction and the Public

Analyst report. The accused persons pleaded innocence. In

his statement recorded under Section 313 of the Code of

Criminal Procedure, 1973 (in short ’the Cr.P.C.’) accused

no. 1 took the stand that though sample was taken, there was

no proper mixing and that it was not taken from the place

indicated in the complaint. He further took the plea that

his brother had purchased the articles in question from

accused no.2, which was not meant for sale but was for

consumption by animals. Accused no.2 took the plea that

articles in question were never sold to accused no.1, and

the receipt which was produced was fictitious. Trial court

by judgment and order dated 24.10.1990 held that accusations

were not established, and recorded the findings in favour of

the accused. Firstly, it was held that the sanction order

was defective, and secondly there was no compliance of the

mandatory requirements of Rule 18 of the Prevention of Food

Adulteration Rules, 1955 (in short the ’Rules’). For coming

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to the second conclusion it was held that there was no

definite material about despatch of the seal impression and

the memo Ex. P-E separately. So Far as culpability of

accused no.2 is concerned, with reference to Section 19 it

was held that the accused no.1 failed to show that the bill

on which he placed reliance was a genuine one and that the

sample article of food while in his possession was properly

stored and that it was sealed in the same state as he had

purchased. The State questioned correctness of the judgment

before the High Court. By the impugned judgment, the High

Court held that the Trial Court was not justified in its

conclusion about the absence of valid sanction. It,

however, held that the prosecution has failed to prove

despatch of seal impression and memo separately which is a

mandatory requirement under Rule 18 of the Rules. It also

upheld the acquittal of accused no.2.

In support of the appeal, learned counsel for the State

submitted that the evidence of the witnesses has not been

properly analysed by the Trial Court and the High Court. The

Public Analyst in his certificate has categorically stated

that the seals and the memo received separately were intact

and there was no defect therein. It was submitted that at

any rate no prejudice has been caused