Whether the Magistrate can discharge accused if complainant public servant fails to remain present in the court for prosecuting his complaint?

  From the provisions referred to above it is clear, the law does not contemplate that once a complaint is filed by a public servant, he has discharged his duty and need not remain present in the Court. As pointed out in the decision in State of M. P. v. Kalu 1973 Jab LJ 224 : 1972 Cri LJ 1639, the prosecuting agency owes a duty to the accused who is prosecuted and to the Court which is required to dispense justice according to law. In this task it is entitled to the co-operation of all concerned. Dispensation of justice is, in a sense a team work and every one is expected to play his role properly. {Para 14}

15. A perusal of the proviso to Section 200 of the Code shows that where a public servant acting or purporting to act in the discharge of his official duties filed a written complaint, the Magistrate need not examine him and his witnesses. In the instant case the learned Magistrate exercising his discretion in favour of the complainant, had straightway ordered issue of process against the accused.

16. Justice has to be done to both the contending parties. In the instant case when the complainant did not appear on the several dates fixed for hearing of the case without any intimation and no steps were taken to produce the witnesses or request the Magistrate to grant further time for the purpose or to issue summons, it cannot be said that in exercising the judicial discretion in discharging the petitioner, the learned Magistrate has committed any error resulting in any miscarriage of justice. The Food Inspector ought to have taken necessary steps. No doubt, as pointed out in the decision in State of M. P. v. Ramsingh, 1976 Jab LJ 696 once the Court has ordered issue of summons to the witnesses it is duty bound to procure their attendance without the requirement of a fresh application for the purpose but such was not the situation in the case in hand. The decision in State of M.P. v. Nathulal 1983 M P W R 246 is also distinguishable.

17. It is well settled that the discretionary re visional jurisdiction has been conferred on the Courts so that they may step in and interfere in cases where there is flagrant miscarriage of justice and this power has to be exercised in exceptional cases. There is certainly no case for interference under Section 482 of the Code.

Madhya Pradesh High Court

State Of Madhya Pradesh vs Punamchand And Ors. on 29 July, 1986

Equivalent citations: 1987 CriLJ 1232

Bench: K Shrivastava

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To what extent provisions of food adulteration Act is applicable to trial of food safety Act?

 Even though the said Act in fact incorporates various provisions of the Prevention of Food Adulteration Act, 1954, the said Act has not expressly superseded the Prevention of Food Adulteration Act, 1954. By applying Section 89 of the Food Safety and Standards Act, 2006, it has to be construed that the provisions of the Prevention of Food Adulteration Act, 1954 and the Rules made there under will continue to have operation in so far as its provisions are not inconsistent with the Food Safety and Standards Act. 2006. {Para 46}

IN THE HIGH COURT OF MADRAS

W.P. No. 18234 of 2008

Decided On: 30.09.2008

Hatsun Agro Product Ltd.  Vs. State of Tamil Nadu and Ors.

Hon'ble Judges/Coram: P. Jyothimani, J.

Citation:  MANU/TN/2491/2008.

Read full Judgment here: Click here

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Whether Magistrate can release the house sealed by Food Safety officer under Food Safety and Standards Act?

In the similar situation, the Hon'ble apex court in the case of Nevada Properties Private Limited Vs. State of Maharashtra, AIR 2019 SC 4554, in para Nos. 20 and 21 held as under:-

" 20. Section 102 postulates seizure of the property. Immovable property cannot, in its strict sense, be seized, though documents of title, etc., relating to immovable property can be seized, taken into custody and produced. Immovable property can be attached and also locked/sealed. It could be argued that the word seize would include such action of attachmetn and sealing. Seizure of immovable property in this sense and manner would in law require dispossession of the person in occupation/possession of the immovable property, unless there are no claimants, which would be rare. Language of Section 102 of the Code does not support the interpretation that the police officer has the power to dispossesses a person in occupation and take possession of an immovable proerty in order to seize it. In absence of the Legislature conferring this express or implied power under Section 102 of the Code to the police officer, we would hesitate and not hodl that this power should be inferred and is implicit in the power to the effect seizure..................................

21. In view of the aforesaid discussion, the Reference is answered by holding that the power of a police officer under Sectuion 102 of the code to seize any property, which may be found under circumtances that create suspicion of the commission of any offence, would not include the power to attach, seize and seal an immovable property."

9. In the context of the law laiddown by the Hon'ble apex Court in the case of Nevada Properties Private Limited (supra), this Court is of the view that power of seizure and forefeiture of immovable property has given to the courts and not to the prosecution authority and if the police officer or other officer has given power to seized the immovable property, it may be chaotic the circumstances.

10. Looking to the aforesaid facts and circumstances of the case, in the considered opinion of this Court, the trial court as well as revisional court have committed error in rejecting the application filed by the applicant under Section 451 of the Cr.P.C., seeking the direction to the respondents to unlock and open the seized business premises of the applicant without considering the fact that the Food Safety Officer after seizure of food articles from the business premises of the applicant, has already send the one samples of said food articles to State Food Laboratory, Bhopal and remaining food articles were destroyed by him, therefore, no purpose will be served in locking the said business premises of the applicant.

 Madhya Pradesh High Court

Laduram vs The State Of Madhya Pradesh on 16 January, 2020

Author: Sunil Kumar Awasthi

       M.Cr.C.No.51929/2019
                

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Whether accused in prevention of food adulteration Act can be acquitted if article of food was not injuries to health?

 We are of the considered view that once standards are laid down by the Legislature then those standards have to be followed. In items like milk which is a primary food, under the Act, it is not necessary to also prove that the food item had become unfit for human consumption or injurious to health. In cases of food coming under the Act, it is not required to prove that Article of food was injurious to health. In this case, the only question to be determined is whether the Article complies with the standards laid down or not? If it fails to comply with the standards then it will have to be treated as an adulterated article even if it is not rendered injurious to health. Even marginal deviation from the prescribed standard cannot be ignored.

9. We may point out that this Court in M.V. Joshi v. M.U. Shimpi and Anr. MANU/SC/0151/1961 : AIR (48) 1961 SC 1494 held as follows:

7. ...Therefore, if the quality or purity of butter falls below the standard prescribed by the said Rule or its constituents are in excess of the prescribed limits of variability, it shall be deemed to be adulterated within the meaning of Section 2 of the Act. If the prescribed standard is not attained, the statute treats such butter, by fiction, as an adulterated food, though in fact it is not adulterated. To put it in other words, by reason of the fiction, it is not permissible for an Accused to prove that, though the standard prescribed is not attained, the Article of food is in fact not adulterated. The non-conformity with the standard prescribed makes such butter an adulterated food. Section 7 of the Act prohibits the manufacture, sale, storage or distribution of such food....

14. The Act does not make a distinction between cases coming under it on the basis of the degree of adulteration. It does not provide for aggravation of offence based on the extent of contamination. The offence and punishment are the same whether the adulteration is great or small. Food pollution, even if it be only to the slightest extent, if continued in practice, would adversely affect the health of every man, woman and child in the country. Hence even marginal or border line variations of the prescribed standards under the Act are matters of serious concern for all and as public interests are involved in them, the maxim, De Minimis Non Curat Lex. law does not concern itself about trifles, does not apply to them.

15. The standard fixed under the Act is one that is certain. If it is varied to any extent the certainty of a general standard would be replaced by the vagaries of a fluctuating standard. The disadvantages of the resulting unpredictability, uncertainty and impossibility of arriving at fair and consistent decisions, are great.

16. The Act does not provide for exemption of marginal or border line variations of the standard from the operation of the Act. In such circumstances to condone such variations on the ground that they are negligible is virtually to alter the standard itself fixed under the Act.

17. The standards of qualities of the articles have been fixed by the Government under the provisions of the Act after due deliberation and after consulting a committee of competent men. It is for them to give due allowance for probable errors before fixing a standard. They may have done it also. There is no reason to assume otherwise. Therefore the conclusion is that for an Article of food when a standard has been fixed under the Act it has to be observed in every detail.

11. In view of the above settled law, we hold that if the standards are not complied with, the Court is not justified in acquitting the Accused charged with adulteration only on the ground that the deficiency is marginal.

IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 1541 of 2019 

Decided On: 04.10.2019

Raj Kumar  Vs. The State of Uttar Pradesh

Hon'ble Judges/Coram:

Deepak Gupta and Aniruddha Bose, JJ.

Citation: (2019) 9 SCC 427

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Whether Co-accused are also entitled to benefit of right exercised U/S 13(2) of Prevention of Food Adulteration Act?

 On hearing the parties we find ourselves in complete agreement with the submissions advanced on behalf of the Appellant that in case like the present where there are many accused, once right is exercised Under Section 13(2) of the PFA Act by any of the accused leading to a certificate from the Director of the CFL, the consequence would be supersession of the report given earlier by the Public Analyst under Sub-section (1) of Section 13 and such supersession must enure to the benefit of all the co-accused. The submission advanced on behalf of the Respondents by Mr. S.S. Shamshery, learned Additional Advocate General for the State of Rajasthan that such supersession will be only to the benefit of the accused who exercised their right Under Section 13(2) of the PFA Act does not merit acceptance. 

IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 252 of 2016 (Arising out of S.L.P. (Crl.) No. 3654 of 2015)

Decided On: 12.04.2016

 Hindustan Unilever Ltd. Vs.  State of Rajasthan and Ors.

Hon'ble Judges/Coram:Dipak Misra and Shiva Kirti Singh, JJ.

Citation:(2016) 7 SCC474

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Whether mensrea is required to be proved in prevention of food adulteration case?

 For the offence made punishable under section 7, no 'mens rea' is required to be proved. Thus, in such a case, the prosecution is required to make out the case of contravention of some provisions of sections of the Act, Rules and if, there is such contravention, the Court is not expected to quash the proceeding. In the case reported as AIR 1971 SUPREME COURT 2346 [Andhra Pradesh Grain and Seed MerchantsCri. Appln. No. 230/14 & Ors.

Association and Ors. Vs. Union of India and Anr.] and in the case reported as AIR 1961 Supreme Court 631 [Sarjoo Prasad Vs. The State of Utter Pradesh], the Apex Court has made interpretation and has discussed constitutional validity of relevant provisions.

 When the contravention of the provisions of the Act and the Rules is there, the argument of the learned counsel for the accused that the food article was not injurious to health, cannot be accepted as there is strict liability for the contravention. So, if the offence is made out from the material collected and which is mentioned in the complaint, the cognizance can be taken and such cognizance cannot be called as bad and even, this Court is not expected to quash the proceeding. It needs to be kept in mind that when there is report of Analyst, the burden is on the accused to prove that there was no adulteration or the adulteration was found due to natural causes for which the accused is not responsible.

cannot be set aside.

Bombay High Court

Aravind Shankar Manegaonkar vs The State Of Mah on 5 November, 2014

Bench: T.V. Nalawade

Citation; 2015 CRLJ(NOC)482 BOM

Read full judgment here; click here

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Whether prosecution in prevention of food adulteration case can be quashed on the ground that preservative in sample is used beyond permissible limit?

When it is the case of use of preservative and the preservative is used beyond permissible limit, the aforesaid position of law needs to be kept in mind. The preservative like sulpur dioxide is chemical substance and so, it is up to the accused to show that due to the delay caused in analysis, the sample must have become unfit and sample must have deteriorated due to natural process and so, the quantity of SO 2 used initially cannot be ascertained in such a sample. The Court cannot presume that such change might have occurred. The aforesaid provisions show that the Court is expected to leave such point to the expert. Thus, different cases of food adulteration need to be dealt with differently. In the present case, it can not be presumed that sample must have become unfit on the date of filing of complaints. It was up to the expert to say whether sample had been unfit. In view of this position of law and the facts and circumstances of the case, this Court has Cri. Appln. No. 230/14 & Ors.

no hesitation to observe that the proceedings cannot be quashed and the order of issue process cannot be set aside.

Bombay High Court

Aravind Shankar Manegaonkar vs The State Of Mah on 5 November, 2014

Bench: T.V. Nalawade

Citation; 2015 CRLJ(NOC)482 BOM

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When oral evidence of public analyst will prevail over his written analysis report?

There is no doubt that the Report ex facie could be admitted in evidence as to its contents also, but, the issue is that if the Government Analyst were to be examined as a witness, then, his oral evidence prevails over his report. The Analyst is subjected to cross-examination and as such, the evidence of the Analyst cannot be conclusive only on the basis of the report. Once the prosecution decides to examine the Government Analyst his oral evidence would prevail over the statement contained in his written analysis report.

Bombay High Court

The State Of Maharashtra vs Shri R.A. Chandawarkar & Other on 18 February, 1998

Equivalent citations: 1999 (5) BomCR 519, 1999 BomCR Cri, (1999) 3 BOMLR 394, 1999 CriLJ 4449, 1999 (2) MhLj 650

Bench: S Radhakrishnan

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Whether accused can be acquitted in food adulteration case on the ground that report of public analyst is not served upon him?

The entire appeal could be disposed of only on this count. The record shows that even office copy of the notice under Section 13(2) is said to have been served upon the accused is not produced by the prosecution. Had the copy of such notice was brought on record, it would have been an indicative of the fact whether it did accompany with the report of Public Analyst as envisaged under the Act. In absence of said office copy of notice and in absence of any such positive evidence that the Public Analyst report was in fact served upon the accused in compliance with mandatory provisions of Section 13(2) of the Act, it would not be proper for this court to presume that the report must have been supplied only on the strength of production of two postal acknowledgment dues at exhibit 28 and 29. The exhibit 28 and 29 merely indicate receipt of notice but that in itself can not be said to be proving sending of the copy of Public Analyst report also with the notice. The testimony of the Food Inspector is also conspicuously silent about sending of report of the Public Analyst along with notice as envisaged under Section 13(2) to the accused. The mere statement that Godhra Local Health Authority sent notice to the accused under Section 13(2) in itself would not be sufficient to prove the service of report of the Public Analyst to the accused as it is required under Section 13(2) of the Act.

Gujarat High Court

State Of Gujarat vs Mehbub Abdulgani Kathki (Vendor) ... on 29 September, 2005

Equivalent citations: 2006 CriLJ 459, 2006 FAJ 116, (2006) 1 GLR 255,2006 ALLMR(cri) Journal 85

Bench: S Brahmbhatt

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Whether accused can be acquitted on the ground that notice U/S 13(2) of prevention of food adulteration was sent to him belatedly?

 In this case the delay in filing the Complaint and sending the notice under Section 13(2) of the Act belatedly is entirely attributable to the Complainants which has resulted in defeating a valuable right of the accused, Page 360 a right which is fundamental to their defence. The Ld. Additional Sessions Judge might have been right in observing that no time limit was prescribed for the Local Health Authority to send the copy of the report of the result of the analysis to the person from whom the sample of the article was taken, but the complainant as well as the local health authority had to ensure that a statutory right given to the accused would not be frustrated. As already noted in the case of the two of the purchases the notice given to the petitioners/accused was given much after the 'Best Before Date' and in cases of the third purchase, the notice was given just before two days of the said 'Best Before Date' thereby making it impossible for the Petitioners, even if they were stationed in this State, to exercise the said right of making an application to the Court concerned to get the sample of the article of food kept by the Local Health Authority analysed by the Central Food Laboratory. Even if the petitioners had made such an application immediately after receiving the said report of the Public Analyst, it would have been impossible for the petitioners to have exercised the said right given to them in such a short period. In other words, the Complainants made it impossible for the accused to exercise the right under Subsection 2 of Section 13 of the Act. In such a situation no conviction against the accused would be possible and therefore no useful purpose would be served by continuing with the prosecutions under Sections 7/16 of the Act. The law laid down by the Apex Court in Ghisa Ram (supra) and Chetumal (supra) is clearly applicable to the facts of these case. The The Complainants can only blame themselves and not the accused for the delay caused in filing the complaints and or issuing the notice to the accused alongwith the report of the Public Analyst to enable the accused to exercise their right under subsection 2 of the Section 13 of the Act. Continuation of the prosecution would be, when conviction will be impossible, nothing but a farce and an abuse of the process of the court.

Bombay High Court

Shri Rohit Mull And Cadbury India ... vs The State Of Goa At The Instance Of ... on 29 November, 2005

Equivalent citations: (2006) 108 BOMLR 350,2006 ALLMR(cri)665

Bench: N Britto

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What will be effect if notice sent by public analyst is not served upon accused in prevention of food adulteration case?

The evidence on record goes to show that the
 reports of the Public Analyst were sent on the address
 of the factory premises. The envelopes, however, were
 returned with an endorsement that the factory was
 closed. The respondents categorically stated in their
 statements under section 313 of the Criminal Procedure
 Code, while answering the question No. 20, that
 neither of them received the information about the
 sending of the report on 05-08-1994 by the registered
 post (A.D.). It is admitted by PW3 Prabhakar,
 Assistant Commissioner, that the postal remark on the
 postal envelopes indicated that the company was
 closed. No effort was made to locate residential
 address of the respondents in order to serve the

 reports of the Public Analyst on them.

 The
 learned Judicial Magistrate seems to have properly
 appreciated the defence of the respondents. The
 non-service of the reports of the Public Analyst also
 gives serious jolt to the prosecution. The
 respondents have been deprived of their valuable right
 available under section 13 (2) of the PFA Act. A
 Single Bench of Andhra Pradesh High Court in
 "Devakakonda Ramesh v. The State of A.P., through
Food Inspector, Adilabad" 2003 (1) FAC 245, held that
 where a report was not served as required, mere
 sending of the report by registered post, which was
 returned unserved, would not amount to sufficient
 service. As stated before, no efforts were taken to
 send the reports to the respondents for personal
 service. The learned Single Judge of the Andhra
 Pradesh High Court held that prejudice was caused to

 the accused and hence, the prosecution would stand
 vitiated under the circumstances. Similar is the view
 taken in "Sibanath Singh v. State of Assam" 2002 (1)
FAC 166. I am in agreement with the view taken in
 both these cases.

IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO. 358 OF 1997
 The State ofMaharashtra,
VERSUS
  Shamsundar Ganeshlal Navandar,
[CORAM: V.R. KINGAONKAR, J.]
DATE OF JUDGEMENT PRONOUNCED : 4th April, 2009
Citation; 2009 ALLMR(cri) 1654

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Whether storing an adulterated article of food for purpose other than sale would constitute offence under prevention of food adulteration Act?

In "B. Govinda Rao and another v. V.N.
Ashokan" 2003 (2) FAC 123, a Single Bench of Kerala
 High Court dealt with a similar question. The learned
 Single Judge held that the expression "store" as used
 in section 7 means "storing for sale" and consequently
 storing an adulterated article of food for purpose
 other than sale would not constitute offence under
 section 16 (1) (a) of the PFA Act. The red cherries
 kept in the store were not intended for sale in the
 given case, and, hence, it was held that even though

 the same were found adulterated, yet, conviction under
 section 16 (1) (a) of the PFA Act was not possible.
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO. 358 OF 1997
 The State ofMaharashtra,

VERSUS
  Shamsundar Ganeshlal Navandar,

[CORAM: V.R. KINGAONKAR, J.]

DATE OF JUDGEMENT PRONOUNCED : 4th April, 2009
Citation; 2009 ALLMR(cri) 1654

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When accused can be discharged in prevention of food adulteration case?

Revision against discharge
crpc s 397/401 Record has already been destroyed
according to law -Impugned label can not be examined-It is futile to reconstruct record .Speedy trial is right of accused.Trial court's view is likely to be probable and justified.
State of Punjab v kewal krishan 2009 FAJ495 P&H

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Whether it is necessary to prove that food article was unfit for human consumption if it is insect-infested?

It will thus be seen that the law laid down in Delhi Municipality v. Tek Chand Bhatia MANU/SC/0187/1979 : AIR 1980 SC 360 : (1980 Cri LJ 316) was expressly affirmed by Ranganath Mishra, J. (as his lordship then was) and that view was not overruled in the main judgment. In our view, I therefore, the law laid down in Municipal Corporation of Delhi v. Tek Chand Bhatia MANU/SC/0187/1979 : AIR 1980 SC 360 : (1980 Cri LJ 316) holds the field and various decisions of this Court rendered by learned single Judge as referred to above holding to the contrary, are, hereby, overruled. Where an article of food is shown to be insect-infested, it is not duty of the prosecution to further prove that the article was otherwise unfit for human consumption. 

Equivalent Citation: 1992CriLJ742

IN THE HIGH COURT OF PUNJAB AND HARYANA

Criminal Appeal No. 416-DBA of 1985

Decided On: 25.09.1991

Appellants: State of Punjab
Vs.
Respondent: Kewal Krishan and Ors.

Hon'ble Judges/Coram:
Anand Parkash Chowdhri and J.B. Garg, JJ.

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When fresh sanction for prosecution is not required in food adulteration case?

 So far as the first ground made as basis for the acquittal of the accused by the learned trial Magistrate, i.e. want of obtaining fresh sanction for prosecution of the accused is concerned, it is unsustainable in view of the settled proposition of law. A Full Bench of this Court in 1990 (1) Sim. L.C. 126 Rattan Lal v. State of H.P. with Mehar Chand v. State of H.P., while dealing with the question as to where such sanction is again required and where it is not so required, has held as follows:

71. Where the variation in the contents of the report of the Public Analyst and the certificate of the Director Central Food Laboratory, is of a nature which does not alter the specie of the offence for which the offender is being prosecuted on the basis of a written consent given by the appropriate authority under Section 20(1) of the Act on consideration of the contents of the report of the Public Analyst, no fresh consideration of that question or necessity for obtaining a written consent afresh, after the receipt of the report of the Director, arises in the case. The prosecution can be continued on the basis of the written consent already obtained on the basis of the report of the Public Analyst.
72. But, where the nature of the difference in the report of the Public Analyst and the certificate of the Director, Central Food Laboratory, is such that it completely alters the specie of the offence, in the sense of altering the nature of adulteration for which prosecution was initially launched, fresh application of mind on the part of the appropriate authority, envisaged by Section 20(1) of the Act, to the facts and circumstances of the case, in the light of the findings of the Director, is necessary before the prosecution against the offender can be continued any further.

6. In the instant case, the variation in the report of the Public Analyst and the certificate of the Director, Central Food Laboratory do not alter the specie of the offence for which the accused was being tried on the basis of the written consent already accorded by the competent authority, for the reason that in the report of the Public Analyst Ex. P-8 as well as in the certificate Ex. P-12 issued by the Director, Central Food Laboratory, the sample of milk has been found to be deficient in milk solid not fat as well as milk fat. The variation is only of the degree and not of the nature of the deficiency. Thus, in view of the above-settled proposition of law, the further sanction on the basis of the certificate Ex. P-12 was not required and to this extent the learned trial Magistrate has arrived at a wrong conclusion.

Equivalent Citation: 1999(2)ShimLC401,2000 FAJ 33 HP

IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA

Cr. Appeal No. 412 of 1996

Decided On: 10.06.1999

Appellants: State of H.P.
Vs.
Respondent: Jagtar Singh

Hon'ble Judges/Coram:
M.R. Verma, J.

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Effect of non-pleading and non-proving of important ingredient of offence punishable under food adulteration Act in complaint

Be it stated at the very outset that adding of preservative to the food stuff seized as sample is one of the necessary requirement of the law and is thus one of the most important ingredients to be pleaded and proved. In this case, the Food Inspector in his statement in the court has stated that he had added 20 drops of formalin in' each of the three sample bottles and it is mentioned in the Panchnama Ex. P-3 also that 20 drops of formalin each were put in three sample bottles. As already stated here-in-above, the adding of preservative to the sample food has its own significance as it preserve the food* to enable its proper analysis when it is so analysed. If inadequate quantity of formalin is added or no preservative is added at all, the result of the analysis cannot be expected to be a correct one. Thus, this is one of the material particular to be alleged in the complaint which has not been admittedly mentioned in the complaint. Thus, a suspicion is raised about the statement of the Food Inspector about his having added the requisite quantity of preservative to the sample. The Panchnama in which it is mentioned is in printed form and it cannot be said to have been consciously written by the Food Inspector therein that he added 20 drops of the formalin to each of the sample bottles. The suspicion is further strengthened for the reason that the milk sample has been analysed twice, once by the Public Analyst and subsequently by the Director, Central Food Laboratory and a perusal of the report and the certificate respectively issued by them reveal that when the milk was analysed by the Public Analyst the milk fat contents thereof were found 2.3% whereas such contents were only 1.6% when the milk was analysed by the Director, Central Food Laboratory. Similarly, the milk solid not fat contents found in the milk sample as per the report of the Public Analyst were 6.1%, whereas according to the certificate issued by the Director, Central Food Laboratory were 5.55%. One of the reasons for these variations in the conclusions arrived at on analysis may be want of adoption of proper procedure in seizing the sample. Therefore the suspicion raised by non-mention in the complaint about the adding of the formalin to the samples is compounded and thus on this aspect the conclusion arrived at by the trial Magistrate is justified.

Equivalent Citation: 1999(2)ShimLC401,2000 FAJ 33 HP

IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA

Cr. Appeal No. 412 of 1996

Decided On: 10.06.1999

Appellants: State of H.P.
Vs.
Respondent: Jagtar Singh

Hon'ble Judges/Coram:
M.R. Verma, J.

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How to appreciate evidence in food adulteration case?

Food Adulteration - Acquittal - Appeal against the judgement passed by learned Chief Judicial Magistrate, whereby the accused had been acquitted of the accusation under Section 16(1)(a) (i) read with Section 7(i) of the Prevention of Food Adulteration Act, 1954 - Held, though in the ordinary course an independent witness should have been examined and in case he was not willing to support the case of the prosecution, he could have been cross-examined and confronted with the relevant documents - In any case, the non-production of the said witness had resulted in non-corroboration of the sole statement of the Food Inspector which had already been found suspicious - Learned Trial Magistrate was therefore justified on the basis of the material on record in acquitting the accused by giving him the benefit of doubt, as two out of the three grounds made basis for acquittal of the accused by the trial Magistrate were supportable on the basis of the record - Order of acquittal barred by the trial Magistrate did not call for interference by present Court - Appeal dismissed.

Equivalent Citation: 1999(2)ShimLC401,2000 FAJ33 HP

IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA

Cr. Appeal No. 412 of 1996

Decided On: 10.06.1999

State of H.P. Vs.  Jagtar Singh

Hon'ble Judges/Coram:
M.R. Verma, J.

Equivalent Citation: 1999(2)ShimLC401,2000 FAJ33 HP

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Whether trial will be vitiated on ground that statement recorded U/S 313 of CRPC does not bear certificate issued by Magistrate?

The last contention of Mr. Verma is that there has been infraction of the provision of Section 281 of the Code of Criminal Procedure in recording of the statement of accused under Section 313, Cr. P.C.

16. Sub-section (5) of Section 281 specifically provides that any statement of the accused recorded by a Magistrate or by the Court of Sessions must bear a certificate of the concerned Magistrate or Presiding Judge to the effect that examination was taken in his presence and hearing and that the record contains a full true account of the statement made by the accused. Admittedly in the present case, this certificate is missing from the statement of the accused. Learned Sessions Judge dealing with this question held that this aspect will not vitiate the trial of the accused as he has not been prejudiced or injured by this omission in his defence.

17. There is no dispute that statement of the accused was recorded by the learned trial Magistrate. It is also not in dispute that answers given by the accused to the questions were faithfully recorded by the learned trial Magistrate-. Section 463 of the Code provides that if there is non-compliance with the provision of Section 281 or S. 164 of the Code, it may nevertheless take such statement into consideration, if such Magistrate or Judge is satisfied that non-compliance has not injured the accused in his defence and that such statement was duly made by the accused.

18. In the facts and circumstances of the case, it cannot be said that the accused was prejudiced in any manner by non-recording of the certificate by the learned trial Magistrate. No injury is caused to the accused particularly when it is not in dispute that statement as recorded by the learned trial Magistrate under Section 313, Cr. P.C. was in fact made by the accused and its authenticity is not questioned' This, irregularity will have no effect on the merits of the case which stands cured by provisions of Section 463 of the Code.

19. The Supreme Court in State of Himachal Pradesh v. Gita Ram, 2000 (4) Crimes 21 (SC) : (2000 Cri LJ 4039), observed that the very object underlined in Section 465 of the Code is that if on any technical ground any party to the criminal proceedings is aggrieved he must raise the objection thereof at the earliest stage. If he did not raise it at the earliest stage he cannot be heard on that aspect after the whole trial is over. It is noticed that no such objection was raised by the accused before the learned trial Magistrate. It is not open to the accused to raise such objection at this stage.

Himachal Pradesh High Court

Mohan Lal vs State Of H.P. on 28 July, 2003

Equivalent citations: 2005 CriLJ 591,2003 FAJ 572 HP

Bench: K C Sood

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How to appreciate evidence of public analyst in food adulteration case?

PREVENTION OF FOOD ADULTERATION ACT, 1954 - SECTION 16(1) (a) (i)-CHARGED FOR OFFENCES UNDER SECTION 16(1) (a) (i)-Public Analyst's Report-Public Analyst, not explaining to the Court the method and procedure adopted by him in conducting the test to find out the required standard-Reliance on such Public Analyst's Report-HELD-When the Public Analyst has not explianed to the Court the method and procedure adopted by him in conducting the test to find out the required standard in an item, which itself is a defect in the prosecution case. When the method of test conducted is not explained to the Court, the report of the Public Analyst cannot be relied and acted upon.

The Public Analyst report Ex.P7 is as follows;

  1. B.R. Reading at 40° C    58.0
2. Saponification value     190.77
3. Iodine Value             112.15
4. Free falty acid as       0.10%
   oleic acid
5. Belliers test            22.0C

 

That on a comparison of the table given at A. 17.12 and the Public Analyst Report Ex.P7 there is a slight variation in the meter reading of item No. 1 to the extent of 2-3 points. Similarly in respect of item No. 5, Belliers Test there is variation of about 3°C, whereas the other 3 items are found according to the table given in the Rules. In this regard in my opinion, it is not out of context, if it is said that the Court has to consider the potentiality and fertility of the land where nigerseeds are grown. If the lands are fertile, the percentage of fat materials will be more. Similarly, if the fertility of the land is poor, the crop of nigerseed cannot be expected to be with the same variety with contents are given in the table. That is also one of the factor which the Court has to take note off, as the other contents in the nigerseed are found according to the table.

Karnataka High Court

H.L. Nellashekara vs The Food Inspector Primary Health ... on 16 December, 2005

Equivalent citations: 2006 CriLJ 1561, 2006 FAJ 213, ILR 2006 KAR 933, 2006(2)KCCR792

Bench: N Veerabhadraiah

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Whether accused can be acquitted in food adulteration case on the ground that seal was not sent separately?

PREVENTION OF FOOD ADULTERATION ACT, 1954 - SECTION 16(1) (a) (i)- CHARGED FOR OFFENCE UNDER SECTION 16(1) (a) (i) OF THE ACT-PREVENTION OF FOOD ADULTERATION RULES, 1955 - RULES 17, 18-Whether  Rule 18 is mandatory and whether the seal has to be sent separately -HELD-The seal of the container and the outer cover compared with the specimen received separately, it cannot be held that the seal was sent separately as required under Rule 18 of the Rules. Sending of seal separately is a mandatory requirement under Rule 18. In case of Non-compliance of Rule 18, the accused is entited for an acquittal.

Karnataka High Court

H.L. Nellashekara vs The Food Inspector Primary Health ... on 16 December, 2005

Equivalent citations: 2006 CriLJ 1561, 2006 FAJ 213, ILR 2006 KAR 933, 2006(2)KCCR792

Bench: N Veerabhadraiah

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