JUDGMENT
Surjit Singh, J.
1. The present appeal by the State of Himachal Pradesh is directed against the judgment dated 30.12.1998 of the learned Sessions Judge, Bilaspur whereby an appeal filed by respondent Jagar Nath, hereinafter called accused, against the judgment dated 24.5.1993 of the learned Additional Chief Judicial Magistrate, Bilaspur, convicting and sentencing the accused of an offence under Section 16(1)(a)(i) read with Section 7 of the Prevention of Food Adulteration Act, 1954 has been accepted and he (the deceased) has been acquitted of the said offence.
2. Facts relevant for the disposal of the appeal may be noticed. The accused was intercepted by the Food Inspector, Bilaspur on 20.1.1991 at a place called Beri (Harkhar) when he was carrying 40 kilograms milk in cans on a motor-cycle. A sample of milk was taken from him. The sample was divided into three parts and each part of the sample was poured into a separate bottle and the bottles were stoppered, wrapped and sealed as per requirements of law. One part of the sample was sent to the Public Analyst, who reported that the same was adulterated. On receipt of the report of the Public Analyst, sanction of Chief Medical Officer for launching the prosecution against the accused was obtained and thereafter a complaint was filed. After the filing of the complaint, an intimation was sent to the accused, as per requirement of Section 13(2) of the Act that he could approach the concerned Judicial Magistrate to have another part of the sample analysed from the Central Food Laboratory. Alongwith that intimation, a copy of the report of the Public Analyst was also sent to the accused.
3. The Additional Chief Judicial Magistrate then proceeded to try the accused for the offence. On the conclusion of the trial, the accused was convicted of the offence under Section 16(1)(a)(i) read with Section 7 of the Prevention of Food Adulteration Act and sentenced to undergo rigorous imprisonment for six months and to pay a fine of Rs. 1,000/- and in default of payment of fine to undergo rigorous imprisonment for a further period of three months.
4. Accused filed an appeal in the Sessions Court and the learned Sessions Judge, Bilaspur accepted the appeal, set-aside the conviction and sentence and acquitted the accused of the charge.
5. The learned Sessions Judge observed that requirement of Section 13(2) of the Prevention of Food Adulteration Act had not been fulfilled because the intimation was sent to the accused before the launching of the prosecution and that as a matter of fact, such intimation was required to be sent after the filing of the complaint. The learned Sessions Judge also observed that the prosecution in the case had been conducted partly by an Assistant Public Prosecutor without any authority. Further it was observed by the learned Sessions Judge that the milk had not been stirred and made homogeneous. It was also observed that the complaint had not been filed as per requirement of Section 204, Sub-section (2) of the Code of Criminal Procedure, inasmuch as the list of witnesses had not been filed alongwith the complaint. The appellant’s grievance is that the finding recorded by the learned Sessions Judge that intimation under Section 13(2) of the Prevention of Food Adulteration Act had been sent before the filing of the complaint is factually incorrect. It is also alleged that the observation regarding the non-stirring of the milk is also contrary to the evidence on record. As regards the non-filing of the list of the witnesses alongwith the complaint and the appearance of the Assistant Public Prosecutor on some of the dates, on behalf of the complainant, it is alleged that these are mere irregularities, which do not vitiate the trial and hence the accused should not have been acquitted on these counts.
6. I have heard the learned Deputy Advocate General and the learned Counsel for the respondent-accused.
7. Complaint was filed on 9.5.1991, as is clear from the order of presentation recorded by the Chief Judicial Magistrate. The intimation was sent to the accused on 9.5.1991. The learned Sessions Judge has wrongly assumed that the complaint was filed on 29.5.1991. Therefore, the finding of the learned Sessions Judge that the mandatory provision of Section 13(2) of the Prevention of Food Adulteration Act had not been complied with, cannot be sustained.
8. The learned Counsel representing the accused-respondent then argued that in the intimation under Section 13(2) of the Act, copy of which is Ex. PW 2/A, it is mentioned that sample had been taken at Barmana, whereas, as per testimony of the Food Inspector and the other witnesses, the sample was taken at a place called Beri (Harkhar). It is true that the place of taking of sample as mentioned in Ex. PW 2/A is different from the place mentioned in the papers regarding taking of the sample, but that should not be a ground for holding that the provisions of Section 13(2) of the Act had not been complied with. It is not the case of the accused that more than two samples had been taken from him. This apart, other particulars of the sample like the number of the paper seal and the name of the Food Inspector are the same, as appearing in the papers prepared at the time of taking of the sample. So the contention is rejected,
9. It was urged by the learned Senior Counsel representing the respondent that complaint was assigned to the Judicial Magistrate 1st Class on the very day of the presentation to the learned Chief Judicial Magistrate and the order was recorded in the presence of the Food Inspector, but still in the intimation it was mentioned that the complaint had been filed in the Court of Chief Judicial Magistrate and this was factually incorrect and prejudiced the respondent in the sense that even if he had applied to the Chief Judicial Magistrate for analysis of the second part of sample by the Central Food Laboratory that would have been an exercise in futility. This argument is without any merit. The respondent admittedly did not seek to exercise the right. Had he applied for exercising the right the Chief Judicial Magistrate would have marked the application to the concerned Judicial Magistrate 1st Class and directed the respondent to appear before him.
10. The learned Counsel representing the accused, further argued that the Food Inspector did not comply with the requirement of Section 10 of the Prevention of Food Adulteration Act, inasmuch as, one of the two witnesses associated by him were his own peon and the other witness was not an independent person.
11. It was also argued by the learned Counsel representing the accused that sanction was defective, inasmuch as it had been accorded without application of mind by the Chief Medical Officer. The contention is unfounded. PW 2 R.C. Gupta, working in the office of Chief Medical Officer testified that he had taken down the sanction Ex. PW1/A as dictated by Dr. K.C. Malhotra, the then Chief Medical Officer. The testimony of the witness is corroborated by the writing of the Chief Medical Officer at the foot of the sanction who signed it on 26th April, 1991.
12. Another contention raised by the learned Counsel representing the accused was that orders summoning the accused could not have been passed, because list of witnesses, had not been filed alongwith the complaint. It is true that the list of witnesses was not filed with the complaint and it was not filed even when the process under Section 204 of the Code of Criminal Procedure was ordered to be issued, but it had been filed subsequently and, therefore, at this stage the accused cannot get the benefit of the error/ illegality in the order of the Magistrate for summoning him. After the passing of the order of summoning the accused, list of witnesses had been filed. Thereafter substance of accusation was put to the accused and he was tried and afforded full opportunity to defend himself. He did not raise this objection in the trial Court. Moreover, no prejudice is shown to have been caused to the accused on account of this error/irregularity.
13. Learned Counsel also argued that Assistant Public Prosecutor had been appearing and conducting the prosecution on behalf of the complainant on some occasions. The record substantiated this contention. However, merely on account of the learned Assistant Public Prosecutor having appeared on behalf of the complainant and conducted the prosecution on some dates, without his having been authorized by the complainant, cannot be a ground for acquitting the accused. He should have raised the objection to the conduct of the proceedings by the Assistant Public Prosecutor in the trial Court. Further the conducting of the prosecution by the Assistant Public Prosecutor has not been shown to have caused any prejudice to the accused.
14. Another contention raised by the Counsel for the accused was that the milk had not been stirred properly. This contention is also not borne out from the record. The Food Inspector, namely Shri I.D. Verma, in his deposition, as PW 1, categorically stated that the milk was stirred by means of a measure from top to bottom. His testimony is corroborated by PW 3 Deep Ram and PW 4 Dila Ram.
15. In view of the above stated position, it is held that the learned Sessions Judge was not justified in setting-aside the judgment of the learned Additional Chief Judicial Magistrate, Bilaspur and acquitting the accused of the offence. Consequently the appeal is accepted. The impugned judgment is set-aside and the judgment of the learned Additional Chief Judicial Magistrate, Bilaspur convicting and sentencing the accused of the offence, under Section 16(1)(a)(i) read with Section 7 of the Prevention of Food Adulteration Act is restored.
16. The respondent, who is on bail, shall surrender to his bail bonds in the learned trial Court within four weeks from today to receive and serve out the sentence imposed upon him, failing which the learned trial Court shall proceed against him in accordance with law.
17. The appeal stands disposed of accordingly.