Subhash Sharma v. Government Food Inspector, Fatehgarh Sahib & Anr.

Hon'ble Mr. Justice A.N. Jindal Present: Mr. S.N. Chopra, Advocate for the petitioner. Mr. Amit Chaudhary, AAG, Punjab for the respondent. A.N. Jindal, J Assailed in this petition is the judgment dated 14.7.2001 passed by the learned Additional Sessions Judge, Fatehgarh Sahib, dismissing the appeal filed by the accused-petitioner Subhash Sharma (herein referred as 'the accused') against the judgment dated 6.1.2000 passed by the Chief Judicial Magistrate, Fatehgarh Sahib, convicting and sentencing him to undergo rigorous imprisonment for six months and to pay fine of Rs.1000/- under Section 16 (1)(a)(i) of the Prevention of Food Adulteration Act, 1954 (herein referred as 'the Act'). Factual matrix of the case is that on 24.11.1994 at about 10.45 a.m. Dr. Girish Bither intercepted the accused in the area of village Roorkee and found him in possession of 105 kgs of mixed milk contained in three cans. After disclosing his identity through notice Ex.PD, purchased milk for using the same as sample. It was divided into three parts and put into three dry and clean bottles after adding 20 drops of formalin in each bottle as preservative. The bottles were duly stoppered, labelled and wrapped and then sealed. Spot memo Ex.PF was prepared which was duly signed by the accused. Dr. Tarsem Lal Mattu (PW2) signed the spot memo Ex.PF. One part of the sample was sent to the Public Analyst, Punjab, Chandigarh for analysis who vide his report Ex.PG opined that the sample of milk was adulterated inasmuch as the milk solids not fat were found to be

7.5% as against the minimum prescribed standard of 8.5% and the contents of fat were found to be 4.5% as against the minimum standard of 4%. Criminal Revision No.1048 of 2001 -2- *** However, the sample was sent to the Central Food Laboratory, Mysore, according to which fat contents were found to be 3.2% and the solids not fats were found to be 8.2%. The complaint was filed against the accused which was tried and ultimately the accused was convicted. The appeal preferred by him was also dismissed. Arguments heard. Record perused. There is no denying a fact that the report given by the Public Analyst has no meaning in the presence of the report made by the Central Food Laboratory, Mysore, because the report prepared by the Central Food Laboratory, Mysore supersedes the report made by the Public Analyst. Though, it has not been denied that as per the report made by the Central Food Laboratory, Mysore the sample was found not to be up to the prescribed standard, yet I have my reservations to say if the same sample which was taken from the accused was sent to the Central Food Laboratory.

In this regard he has referred to the three documents. First of all he has taken me through the statement of Dr. Girish Bither who had drawn the sample. He has stated in his testimony that the sample was secured with thick twine. Six seals were put on each bottle and the seal bearing impression “GV” was affixed over the samples. To confront his statement, he has referred me to the report of the Public Analyst which does not depict as to what seal the sample was bearing. Again, the other document referred to me is the report made by the Central Food Laboratory Ex.PX which described that the sample was bearing the seal of “BCG”. However, in the statement under Section 313 Cr.P.C. the complainant put the accused that the sample was bearing the seal bearing impression “GB”. Thus, from the aforesaid contradictory evidence placed on the record, it is difficult to say that it was the same sample which was taken from the accused, was sent to the Central Food Laboratory, Mysore.

None of the witnesses who had taken the sample to the Central Food Laboratory, Mysore was examined in order to corroborate the identity of the sample which was delivered to the Central Food Laboratory. Thus, in the absence of this link evidence, the benefit could be extended to the accused. Assuming that the court had affixed its seal bearing impression “BCG” but Criminal Revision No.1048 of 2001 -3- *** there is no evidence that the sample was also bearing the seals affixed by the Food Inspector. No evidence has been led to prove that the seals affixed by the Food Inspector were removed while affixing the seals of the Magistrate. That apart, no independent witness was associated at the time of drawing the sample. From the aforesaid defects as surfaced on the record, the inference could be drawn that the trial court has not appreciated the evidence in the right perspective and the conviction is based on the basis of misreading and mis-appreciation of the evidence.

As such, the impugned judgment has been rendered as illegal and perverse warranting interference by this Court. For the aforesaid reasons, this revision petition is allowed, the impugned judgment of conviction is set aside and the accused is acquitted of the charges framed against him. He be set at liberty forthwith. His bail bond and surety bond stand discharged. Fine, if any deposited by him, be refunded. July 30, 2010 deepak (A.N. Jindal) Judge