JUDGMENT
Shiv Narayan Dhingra, J.
Page 3068
Crl.L.P 158/2005 & Crl.P.159/2005
1. Leave to appeal is allowed, for the reasons stated in the applications.
Crl.A. Nos. 639/2007 and 640/2007(to be numbered).
Admit.
These appeals have been preferred against the order of the learned MM dated 28.7.2005 whereby she acquitted the accused persons in the two cases concerning adulteration of Catechu(edible Katha).
2. Brief facts relevant for the purpose of deciding these appeals are that appellant’s officers visited premises No. B-21, Samai Pur Badli, Railway Station Road, Delhi on 19.1.1989. They found that Catechu was being manufactured and stored in the factory for sale. It is alleged that sample of Catechu (edible) lying ready for packing was collected after mixing it properly. The sample was divided in three equal parts and put in three dry bottles. Price for sample was offered but was not accepted. Sample was sent to Public Analyst and the report of Public Analyst showed that the sample did not confirm to any of the standard given for Catechu, except the moisture content. Prosecution was initiated against the accused persons on the ground that the sample was adulterated.
3. Two complaints were filed against the accused persons/respondents in respect of the Catechu (edible) sample and allegation of prosecution was that the same team visited the same premises twice, one at 11.30 a.m. and the second time at 12.30 p.m. on the same day and two samples were collected. The report of Public Analyst in respect of both the samples was same. The learned MM acquitted the accused persons in both the complaints by a common order.
4. The trial Court while acquitting the accused persons came to conclusion that sampling was not done properly. Samples collected were not Page 3069 representative of Catechu (edible) allegedly lying in the factory. The entire quantity of Catechu lying in the heap was required to be mixed and then sample was to be taken out. The other ground of which the accused persons got benefit was non-compliance of Rule 9B of the Rules framed under Prevention of Food Adulteration Act. The Rule required that a copy of the report of the result of analysis should be delivered to the accused person concerned within 10 days after institution of prosecution by registered post or by hand. Trial Court came to conclusion that no document was produced before the Court to show that this Rule was complied with and a copy of result of analysis was sent to accused persons in terms of order. Relying on the judgment of in Supreme Court in the case of Rameshwar Dayal v. State of U.P. 1996(2) Prevention of Food Adulteration Cases 197, it observed that non supply of copy amounted to infringement of valuable rights of the accused causing serious prejudice. The Court further observed that it was a case of violation of Rule 9(2) and Section 20 of PFA Act. The third ground on which the accused persons were acquitted was that the prosecution failed to prove that its officers had collected samples of an edible material meant for public sale. The prosecution alleged that it was Katha but there was nothing to indicate that what was lying in the premises was ‘Katha’. There was no board at the place showing that it was ‘Katha’, meant for sale. Even the word “Katha” was no where mentioned. No sale activity was going on in the factory. In the complaint it was no where mentioned that vendor disclosed the material as ‘Katha’ ready for sale. The next ground of which the accused persons got benefit was that the prosecution failed to show that any of the accused persons had any connection with the premises in question. Accused Amrit Lal Hora was the owner of adjoining property where ‘Kamanies (leaf springs)’ used to be manufactured. Although electricity was being drawn from his factory for the use in the premises, the Court concluded that mere supply of electricity does not make him owner of the factory where activities of ‘Katha manufacturing’ was being done. Accused Dalip Kumar has no concern with the factory. He was not there at the time of raid. He was owner of premises No. B-21, Samaipur Badli, but no role has been assigned to him to show that he was in any manner connected with the manufacturing activity going on in B-21. Accused Vijay Kumar was a Foreman working in adjoining factory where ‘Kamanies’ used to be manufactured. No document was produced by the prosecution to show that Vijay Kumar was working in the premises in question or any sale was effected by Vijay Kumar in the premises.
5. The trial Court also doubted about the identity of the product. The report of public analyst shows that there was no ingredient of Katha in the sample except moisture. The trial Court came to conclusion that what was picked up could not be said to be a food article.
6. The trial Court concluding its finding observing that accused persons have been prosecuted in two cases by PFA officers in respect of same sample collected within a gap of one hour and this practice was required to be deprecated. The trial Court observed that no charge was made out against the accused person.
Page 3070
7. In the grounds of appeal, one of the grounds taken is that the trial Court gravely erred in coming to the conclusion that the vessel in which the sample was sealed, was not clean and right, and benefit of doubt goes to the accused. I find that the trial Court has rather given a finding in favor of the complainant in respect of the dryness and cleanliness of the vessels. The other ground taken is that the trial Court failed to appreciate that even storing of an edible material was covered under Prevention of Food Adulteration Act and if the stored material does not meet the prescribed standard, the person can be prosecuted.
8. No doubt that if an edible material is stored for distribution to the retailers for sale, provisions of Food Adulteration Act shall be attracted. However, in the present case the facts are altogether different. The complainant visited the factory premises where they alleged ‘Katha’ was being manufactured. If a product is being manufactured, only the final product which is ready for dispatch to godown or to the whole seller can be considered as the product meant for sale, stored in the factory. If a heap of something is lying in the factory which is neither meant for sale nor ready for dispatch to the whole seller, it cannot be said that it was a final product stored in the factory. It has come in evidence of the witnesses that polythene bags filled with Katha were also lying in the factory. If the polythene bags filled with Katha were lying in the factory, that would have been the material stored in the factory ready for dispatch to the whole sellers and could have been considered as edible material stored in the factory. On the polythene bags there would have been description of material as to what it was, what was the weight and contents. However, it seems that the effort of the complainant department was not to book somebody for food adulteration but to extract unlawful gain by raiding the factory and that explains how within an hour, samples were collected from this factory twice. There is no explanation given by the complainant/appellant as to why two raids were conducted within a gap of one hour and two samples were collected. Considering that different heaps of material were lying in the factory at the time of visit, two set of samples could have been collected from two different heaps at the same time. The very fact that the factory was visited twice within an hour by the officials of Health Department and samples were collected from heaps of unpacked material without any sign board as to what the material was, shows that the intention of the officials of the department was not bonafide and the intention was only to extract some unlawful gains from the factory owners.
9. I find no reason to differ from the conclusion arrived at by the trial Court. Prosecution has miserably failed to show that the samples were collected of Katha (edible) which was ready for sale and not of the raw-material lying there for preparation of Catechu. The acquittal of accused persons merely on this ground was sufficient, I consider that this Court need not go into other grounds.
10. I find no force in both the appeals. The same are hereby dismissed.