Allowed

R.K.Sharma v. State

Himachal Pradesh HC7 Nov 2017CR.R/11/2008

Case brief

AI extract

What is this about?

In a criminal revision petition, the High Court acquitted the petitioner after finding that the sample of cow milk was sent for analysis by the Director Central Food Laboratory after a delay of over three years and seven months. The court held that such inordinate delay vitiated the prosecution case, constituting a denial of the mandatory right under Section 13(2) of the Prevention of Food Adulter

What did the court decide?

The revision petition was allowed, and the petitioner was acquitted of the charges. Bail bond was ordered to be discharged.

R.K.Sharma Vs State — Criminal Trial and Appeal | Himachal Pradesh HC (2017)

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IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

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Cr. Revision No. 11 of 2008

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Date of decision : 07.11.2017 ______________________________________________________________ R. K. Sharma ....Petitioner

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VERSUS

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State of H.P. through Food Inspector …Respondent

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Coram

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Hon’ble Mr. Justice Tarlok Singh Chauhan, J. Whether approved for reporting¹ ? No. For the Petitioner : Mr. Ajay Sharma, Advocate. For the respondent : Mr. Naresh Sharma, Deputy Advocate General.

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Tarlok Singh Chauhan, J .

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This revision petition has been preferred by the

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petitioner against the order of Additional Sessions Judge, Fast Track Court, Dharamshala, affirming the judgment passed by the learned Additional Chief Judicial Magistrate, Palampur, District Kangra, convicting and sentencing the petitioner qua offence punishable under Section 16(1)(a)(i) of the Prevention of Food Adulteration Act, (in short ‘the Act’) for a period of six months rigorous imprisonment and to pay a fine of Rs.2000/-

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Whether reporters of the Local papers are allowed to see the judgment? yes

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and in default of fine, to further undergo rigorous imprisonment for two months.

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The brief facts of the case are that on 16.06.1996, the Food Inspector purchased 750 Mls. of cows milk against payment of Rs.6.75 from the petitioner-accused. The same was sent to Public Analyst, Kandaghat for analysis and was found to be adulterated. It was also the case of the petitioner-accused that the sample which had been sent to the Director Central Food Laboratory, Pune, (for short ‘DCFL’ ) had been sent after lapse of about three and half years. Both the learned Courts below on the basis of evidence adduced on record, convicted the petitioner-accused.

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It is also vehemently argued by Mr. Ajay Sharma, Advocate, learned counsel for the petitioner, that there is noncompliance of Section 13(2) of the Act, which is mandatory and non-compliance thereof is fatal to the case of the prosecution. In support of his version, learned counsel for the petitioneraccused placed reliance on the judgment passed by this Court in case State of Himachal Pradesh Versus Sher Khan reported in 1998(1) SLC 213 and State of Himachal Pradesh Versus Partap Singh, 1995(1) SLC 448.

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It is contended that the sample was collected on

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14.06.1996 and came to be analysed by the ‘DCFL’, Pune only on 29.1.2000 i.e. after about 3 years and 7 months. Even though, in this report, milk sample was found to be adulterated. 5. However, the moot question is whether the sample of milk even after addition of preservative would remain fit for analysis for over such long period of time.

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The Hon’ble Supreme Court in Calcutta Municipal Corporation Versus Ghisa Ram, AIR (1967) SC 970 had considered the standard life of milk product. In the said case sample of cow milk had been taken and a complaint before the Magistrate had been filed after a period of 7 months. Relying upon the evidence led therein, it was noted that food articles like ‘curd’ start undergoing changes after a week if kept at room temperature without a preservative but remains fit for analyses for another 10 days thereafter in case kept in Refrigeration.

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Likewise in the case of Chaman Lal Versus State of U.P. 1972 FAC 292 Delhi, it was observed that sample of “Khoya” to which ‘formalin’ is added can remain fit for analyses for about one month if kept in refrigeration and in case the same is kept at room temperature, for 15 days. In case no

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formalin is added, it starts giving some putrefied smell on the following day and becomes decomposed within five days.

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In case titled Shiv Dayal Versus The State of Madhya Pradesh, 1977 CRI. L. J. 1548, leaned Court while referring to the passage from “Milk Production and Control” by ‘Harvey and Hill’ and while considering an earlier judgment

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in case of Dattappa Versus Buldana Municipality AIR 1951 Nag 191 : (1952 Cri. LJ 471) and further relying upon Encyclopedia of Britannica (1970 Edition) Volume IX at page 546, observed as under:

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“6” ……So considering the various authorities cited above, it can be said that a sample of milk, even after adding preservative, can remain fit for analysis at the most for a period of 6 months., if kept under refrigeration. The period given in the Encyclopedia of Britannica is of course under the conditions prevailing in cold countries but our climate is much warmer. In fact, temperature is normally above 70º F. throughout the year, the summer temperature being very much higher. There are also not such facilities available here for preservation of the samples as in those advanced countries”.

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9. In case Gian Chand Versus The State 1978 (1) FAC

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15, Delhi High Court while dealing with sample of milk observed as under:

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“9………I am, therefore, inclined to agree with the learned counsel for the petitioner that the genuineness of the sample which had been produced before the trial Magistrate, on January 3,1966, is not beyond doubt. The seal having remained with the Food Inspector a change of the sample was not impossible. Except on the basis that the sample was changed before being produced on January 3,1966 it is difficult to explain the fact that it remained in a fit condition for analysis after eight months without being kept in a refrigerator”.

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10. In case Sheikh Abdul Versus State of

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Maharashtra 1986(3) FAC, the Bombay High Court held that from the very nature of things, the milk could not remain undecomposed for that much of period, exceeding even 6 months, especially, when there is no evidence that milk was kept in cold storage. The relevant observations read thus:

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“2. From the petitioner, who is allegedly a milk Vendor, sample was taken by the Food Inspector on 19-1-1980. The usual procedure was followed. One of the samples of the milk was sent to the Public Analyst and his Report was received by the Local Health Authority on 5-2-1980. The Authority, however, dragged its feet for the full period of 4 months further and did not institute prosecution before 7-6-1980 and thereafter on 9-6-1980 a notice was given by persecution before 7-6-1980 and

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thereafter on 9-6-1980 a notice was given by the local authority to the petitioner under section 13 of the Food Adulteration Act informing him that he was at liberty to send to the Director of Central Food Laboratory another sample of milk. There is a dispute as to whether such a notice was received by the petitioner or not. But the lower Court has recorded a finding in that behalf and I find no reason to disagree with the same. The fact, however, remains that at the most the petitioner would have asked for the 2^nd sample to be sent to the Director, by making an application in that behalf on or before 19-6-1980. The sample would have been thereafter sent to the Director. This means that the sample of the mi9lk would be reaching the Director long after the expiry of the period of 6 months. From the very nature of things, the milk could not remain undecomposed for that much of period, exceeding even 6 months. There is no evidence in this case that the milk was kept in the cold storage. The only contention is that preservative was added. It has been held by our Court in 1982, Maharashtra Law Journal p.181 that even assuming that the preservative was added, the normal course is that the milk would get decomposed and it is futile to send the same for analysis after that period. In these circumstances, the normal presumption would be that the milk must have been decomposed. If the Department wanted to prove that the milk had remained in tact even after such a longer period, it

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was for the prosecution to prove that fact by examining proper experts in that behalf”.

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Similar issue came up before this Court in Rattan

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Lal Versus State of Himachal Pradesh 1991 CRL. L. J. 2875, wherein, delay of one year two months and twenty one days in sending the sample to the ‘DCFL’ was held to a denial of the mandatory right under Section 13 (2) of the Act to the petitioner-accused. The relevant observations read thus:

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“4. There is yet another infirmity which goes to the very root of the case. The milk sample as stated earlier was collected on March 9, 1982. It was sent to the Public Analyst on March 11, 1982. It was received by him and analysed on March 15, 1982 but the prosecution sanction was accorded by the competent authority after as many as eight months on November 8, 1982. The prosecution was then actually launched on November 23, 1982 and a notice was issued about the report of the Public Analyst to the accused on November 24, 1982 but this notice was received back undelivered. Another notice was, therefore, issued on January 11, 1983. It was received by the accused on January 17, 1983 and he applied for the other sample to be got tested from the Director, Central Food Laboratory, on January 22, 1983. Surprisingly, the Director received this sample after about four months, that

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is, on May 28, 1983. It was analysed by him on May 31, 1983. It means that the milk sample was ultimately analysed by the Director after the lapse of one year two months and 21 days. It has been forcefully urged by Shri K. D. Sood, learned counsel for the petitioner, that the constituents of the sample must have deteriorated after lapse of such a long period even though the sample was found fit for analysis by the Director. In support of his aforesaid contention Mr. Sood seeks reliance from Shiv Dayal v. The State of Madhya Pradesh 1977 Cri LJ 1548, Des Raj v. State of U.P., (1985) FAC 135 : 1985 All LJ 361, Gopi Ram v. State of Haryana 1987 FAJ 442, Lallu v. The State 1990 Cri LJ 835 and two decisions of this Court in (1989) 2 FAC 3 State of Himachal Pradesh v. Umar Din and Criminal Revision No. 77 of 1986 Ramesh Chand v. State decided on April 25, 1989. The above authorities, when read together, clearly say that various time limits laid down in the Act and Rules framed thereunder are directory in nature and not mandatory and further that the said periods are not to be equated with period of limitation. All the same, it is incumbent upon the authorities concerned to have the samples analysed and the prosecutions launched with utmost dispatch and that inordinate delay in making available to the accused his right to get the sample re-tested from the Director of Central Food Laboratory would tantamount to denial of his valuable and mandatory right Under Section 13(2) of

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the Act. A delay of eight months has been considered to be fatal to the prosecution case.

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It has been vehemently urged by Mr. M. L. Chauhan, learned Asstt. Advocate General, that the case relied upon by the learned counsel on the opposite side does not constitute good law keeping in view the fact that the Director, Central Food Laboratory, did opine that the sample was fit for analysis which means that it had neither degenerated nor decomposed in any manner. He has sought support for his argument from Horilal Thewar v. State of Madhya Pradesh (1987) 2 FAC 35 as also from Food Inspector, Trichur Municipality v. Varghese (1986) 1 FAC 118. These authorities undoubtedly are diametrically opposite to those cited on behalf of the petitioner but with all respects it appears to me that too much delay in such matters against the express directory provisions made in law and the Rules have to be treated with full defence and cannot be given a go-by in a light-hearted fashion. It also appears to me that a sample of milk, inspite of the fact that formalin or other preservative is added to it, would certainly deteriorate in quality if the time lag is inordinately long. In the present case, the delay involved is of one year two months and 21 days and such delay cannot but be regarded as denial of the mandatory right vested in the accused Under Section 13(2) of the Act. This, in turn is positively fatal to the prosecution case”.

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Identical issue came up for consideration in case titled Kishori Lal Versus State of Himachal Pradesh 2013

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(3) Shim. LC 1210, wherein, there is a delay of five years in sending sample and observed as under:

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“6 On the facts established on record, I hold that the findings of the learned Courts below cannot be sustained in the eyes of law and I cannot comprehend that how the sample has been sent for analysis after a period of five years and then considered to be fit for analysis”.

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This Court is not in a position to comprehend how the sample received after 3 years and 7 months could have been considered fit for analyses, particularly, when it has specifically come on record that the sample was deposited in the Court on 11.11.1997 and came to be despatched to ‘DCFL’, Pune only after two years on 25.11.1999. Not only this, it has further come on record that even during this period, the sample remained in the custody of the Reader of the Court and was kept in room temperature and not under refrigeration.

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The Court can take judicial notice of the fact that the case relates to Palampur, where the weather conditions are extreme. It is fairly hot in summers and extremely cold in the winters and the sample continued to face the vagaries of the

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weather during all this time of two years. Thus, this Court finds it extremely difficult to believe that sample had remained intact or had not undergone any chemical changes or had not even decomposed during this time.

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In the given facts and circumstances, this Court has no option but to allow the Revision Petition. Ordered accordingly.

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The petitioner is acquitted of the charges framed against him. The bail bond furnished by him are ordered to be discharged.

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(Tarlok Singh Chauhan) Judge

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November 7, 2017 brb

R.K.Sharma v. State

Case brief

What is this about?

What did the court decide?

R.K.Sharma v. State

Case brief

What is this about?

What did the court decide?

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