B.P. Beri, J.
1. The Sub-divisional Magistrate, Salumber acquitted Kapoorchand by his judgment dated 12th March, 1965 in a case under Sections 7 and 16 of the Prevention of Food Adulteration Act. The State of Rajasthan has come up in appeal against this acquittal.
2. The material facts which have given rise to this appeal are: Kapoorchand is a shop keeper in village Veerpur, who sells amongst other things 'Ghee' On June 19, 1963 Food Inspector Durga Shanker made a test purchase from his shop, filled in three phials out of the 'Ghee' purchased by him One of these phials he handed over to the accused, and sent another to the Public Analyst According to the report from the Public Analyst dated 6th August, 1963 that sample was found to be adulterated with 'Vanaspati'. After taking necessary consent from the Local Authorities the accused was prosecuted for an offence under Section 7 read with Section 16 of the Prevention of Food Adulteration Act.
3. The learned Magistrate, who tried the accused found that the two Motbirs in whose presence the prosecution alleged the action of taking samples did not support the prosecution and therefore it was not proved by the prosecution that the sample which was sent to the Public Analyst was taken from the accused and thus the guilt was not brought home to the accused. He accordingly acquitted him.
4. Mr. G.M. Mehta, learned Deputy Government Advocate submits that the two Motbirs turned hostile to the prosecution and their hostility is evident from the fact that in the recovery memo itself one of the witnesses had by his own hand made an endorsement that the entire proceedings were done in his presence. In these circumstances there was no reason why the Food Inspector ought not to be believed. He submits that the accused ought to have been convicted.
5. Mr. Shishodhiya, learned counsel for the accused submitted that a complaint in the case having been filed by the Food Inspector it was the Food Inspector alone, who could have preferred an appeal against the acquittal and it was not competent for the State of Rajasthan to submit the present appeal. The further submission is that the Motbirs have clearly stated in their depositions that the Food Inspector had not taken the sample of 'Ghee' in their presence and they had arrived later. He should have called one or more persons to be present at the time when such action was taken and could have taken his or their signatures as required by Section 10(7) of the Act. According to the depositions of the witnesses this provision of law was not complied with and therefore the order of acquittal need not be described.
His next submission is that the Food inspector does not state in his deposition that he had sealed the three phials containing the samples. He merely contented himself by saving that he had closed them and one sealed phial was given to the accused. Further the phial which was sent to the Public Analyst may or may not have been sealed but no memorandum of impression of the seal as required by Rule 18 of the Prevention of Food Adulteration Rules, 1955 was sent to the Public Analyst enabling him to compare and satisfy himself that the seal was the same as the one, if any, put on the phial sent to him Therefore there can be no sanctity attached to the result reached by the Public Analyst. Lastly he argued that the complaint was filed very late almost a year after the date of taking the sample, and this caused prejudice to the accused.
6. It will be proper for me to decide the argument relating to Section 417 of the Code of Criminal Procedure first. The relevant provisions which it is necessary to notice in in this connection read as follows:--
'417(1) Subject to the provisions of Subsection (5), the State Government may, in anyease, direct the Public Prosecutor to presentan appeal to the High Court from an originalor appellate order of acquittal passed by anyCourt other than a High Court.
xx xx xx xx (3) If such an order of acquittal is passed in any case instituted upon complaint and the High Court, on an application made to it by the complainant in this behalf grants special leave to appeal from the order of acquittal, the complainant may present such an appeal to the High Court.
* * * * (5) If, in any case, the application under Sub-section (3) for the grant of special leave to appeal from an order of acquittal is refused, no appeal from that order of acquittal shall lie under Sub-section (1).'
7. The precise argument of the learned counsel is that this prosecution having been instituted on the basis of a complaint an appeal under Sub-section (3) of Section 417 of the Code of Criminal Procedure alone was competent. The learned counsel further sought support from Sub-section (5) of Section 417 of the Code of Criminal Procedure when it says that in case an application under Sub-section (3) for the grant of special leave to appeal from an order of acquittal is refused no appeal from that order of acquittal shall lie under Sub-section (1).
The learned Deputy Government Advocate invited my attention to State of Uttar Pradesh v. Maiku Baldeo, AIR 1963 All 486 and submitted that the State Government was competent to present the appeal even though the case might have been instituted upon a complaint by the Food Inspector. The provisions of Section 417 (1) authorise the State Government 'in any case' by directing a Public Prosecutor to present an appeal to the High Court from an original or appellate order of acquittal passed by any court other than High Court. (Note:-- Underlining (here in ' ') is mine.)
The only limitation to this right of preferring an appeal against an acquittal is the one (Contained in Sub-section (6) of Section 417 of the Code of Criminal Procedure. This limitation has a specific object. In a case instituted upon a complaint which ended in acquittal and the complainant seeks special leave to prefer an appeal the matter is examined and if such leave is refused Sub-section (6) lays down that it shall not be open to the State to prefer an appeal under Sub-section (1) of Section 417 of the Code of Criminal Procedure. The reason is obvious.
The court having once examined that the case was not fit for an appeal against acquittal ft was not to be approached again for the same purpose. It is a safe-guard against repetition of action. It is a limitation to prevent multiplicity of proceedings. Sub-section (5) of Section 417 of the Code of Criminal Procedure does not support the contention of the learned counsel when he says that it is only a complainant in a case of acquittal who can come up in appeal by asking for special leave to appeal. This interpretation is supported by the language of Sub-section (3) itself. The words used are 'complainant may present an appeal to the High Court.'
It seems to me that Sub-section (3) which has been introduced by the Amending Act of 1955 has enabled a complainant also to come up in High Court for preferring an appeal against acquittal and be not left to depend upon the discretion which the State Government in such a matter may or may not exercise. Excepting the fetter imposed by Sub-section (5) the State Government has right to come up in appeal against an order of acquittal in any case. This objection of the learned counsel therefore has no force and is rejected.
8. From a reading of the statements of two Motbirs Asgar Ali and Devchand, it does appear to me in view of the contents contained in the recovery memo Ex. 1 that these witnesses have turned hostile to the prosecution. The Prosecutor who was incharge of conducting the case it appears did not choose to request the Court to permit him to cross-examine these witnesses so that it could be effectively demonstrated that these witnesses were not speaking the truth. For what reason he neglected to do so it is difficult to speculate. Even the examination-in-chief of the Food Inspector is conducted without due care.
No question was asked and ho answer elicited whether the seals on the phials were put when the samples were taken or not. Even the fact of sealing has to be indirectly inferred and that too can be only inferred in regard to one sample phial which was given to the accused. In this state of evidence it is difficult to conclude that the samples were taken in the presence of two Motbirs and that the provisions of Section 10(7) of the Food Adulteration Act were complied with; and that the sample phials were sealed as required by Rules 16 and 18 of the Prevention of Food Adulteration Rules, 1955.
No impression of the seal put on the samples, if any, was sent to the Public Analyst. There is thus a clear non-compliance with the requirements of Rule 18 of the Prevention of Food Adulteration Rules. 1955. When the salutary provisions such as these have not been complied with, the hostile witnesses not cross-examined. I cannot describe the order of acquittal as clearly unreasonable warranting any interference. The learned Deputy Government Advocate laid great emphasis that this was the case of adulteration of food article and the witnesses went clearly against the record.
It was the business of the person prosecuting this case in the court below to have requested the trial court to permit him to cross-examine these two witnesses to bring out distinctly the points on which they were changing their versions It was equally the function of the person incharge of the prosecution before the trial court to have proved that the samples were sealed and it was the duty of the Food Inspector to have sent an impression of the seal used on the sample to the Public Analyst for comparison. When these persons did not discharge their duty with due care it is futile to bank on the nature of the offence.
9. I am also somewhat surprised to see that a complaint in a case of this kind should have been presented after 11 1/2 months.
10. No other point was pressed before me.
11. The result is that this appeal fails and is dismissed.