Himachal Pradesh High Court
Reserved On: 02.03.2026 vs Of on 1 April, 2026
2026:HHC:9660
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Cr. Appeal No. 289 of 2014
.
Reserved on: 02.03.2026
Date of Decision: 01.4.2026.
State of H.P. ...Appellant
Versus
of
D.K. Kaushal ...Respondent
Coram
rt
Hon'ble Mr Justice Rakesh Kainthla, Judge.
Whether approved for reporting? 1 Yes
For the Appellant : Mr Prashant Sen, Deputy Advocate
General.
For the Respondent : Mr Subhash Punshi, Advocate.
Rakesh Kainthla, Judge
The present appeal is directed against the judgment
dated 01.5.2014, passed by learned Additional Sessions Judge-II,
Shimla (learned Appellate Court), vide which the judgment of
conviction dated 20.03.2012 and order of sentence dated
31.03.2012 passed by learned Judicial Magistrate First Class-II,
Shimla (learned Trial Court) were set aside. (Parties shall
1 Whether reporters of Local Papers may be allowed to see the judgment? Yes.
::: Downloaded on – 01/04/2026 20:34:49 :::CIS
2
2026:HHC:9660
hereinafter be referred to in the same manner as they were arrayed
before the learned Trial Court for convenience.)
.
2. Briefly stated, the facts giving rise to the present
appeal are that the complainant, LD Thakur Food Inspector
(PW2), filed a complaint against the accused Sunil Kumar and
of
M/s Usha Trading Company for the commission of an offence
punishable under Section 16 (1) (a) (1) read with Section 7 of
rt
Prevention of Food Adulteration Act (PFA Act). It was asserted
that the complainant inspected the premises of Usha Trading
Company on 4th March 2002 at about 2 PM and found Sunil
Kumar conducting the shop’s business. Sunil Kumar had two 15-
litre plastic jars of Ricela, refined rice bran oil, in his shop for
sale to the general public. The food inspector issued a notice
(Ex.PW2/A) to him, declaring his intention to take a sample of
the oil for analysis. The complainant purchased 375 ml of Rice
Bran Oil for ₹10 as a sample for analysis. The oil was taken into a
neat, clean and dry jug and was divided into three equal parts of
125 ml each. Each part was put into three neat, clean and dry
bottles. The bottles were labelled and wrapped in thick paper
separately. A paper slip bearing the code and serial number of
the Local Health Authority (LHA), Municipal Corporation (MC)
::: Downloaded on – 01/04/2026 20:34:49 :::CIS
3
2026:HHC:9660
Shimla S-II/2511 and signed by the LHA was affixed with gum
from top to bottom on each of the bottles. The signatures of the
.
accused were taken in such a manner that they covered the
paper slip and wrapper. The bottles were fastened with strong
thread and sealed with sealing wax in such a manner that all the
knots were covered by the sealing wax. Sanjeev Goswami (PW5)
of
and Charan Dass (PW1) witnessed the proceedings of sealing. A
Panchama (Ex.PW2/C) was prepared, which was signed by
rt
witnesses, the accused and the Food Inspector. One part of the
sample was sent to a public analyst, Kandaghat, along with
Form VII (Ex.PW2/D), in a sealed packet through Shri Charan
Das. A copy of form VII (Ex.PW2/E), along with the seal
impression, was sent separately in a sealed letter to the public
analyst, Kandaghat, through Shri Charan Dass under intimation
to the LHA MC, Shimla. The two remaining parts of the sample,
along with two copies of form VII, were deposited with LHA MC,
Shimla, in a sealed packet for record under intimation
(Ex.PW2/F). The public analyst found that the acid value of the
contents of the sample was 0.66 against the maximum
prescribed standard of 0.5, and the sample was adulterated. He
issued the report (Ex.PW2/G). This report was forwarded to the
::: Downloaded on – 01/04/2026 20:34:49 :::CIS
4
2026:HHC:9660
Food Inspector by the LHA vide letter dated 16 April 2002
(Ex.PW2/H). The complainant filed an application (Ex.PW2/J)
.
before the Chief Medical Officer (CMO), Shimla, seeking consent
to launch the prosecution. CMO went through the documents
and issued the written consent (Ex.PW2/K). The Food Inspector
filed a complaint before the learned Trial Court and intimated
of
the LHA vide letter (Ex. PW4/A). LHA sent a notice (Ex. PW4/B)
to the accused by post and obtained postal receipts (Ex. PW4/C
rt
and Ex. PW4/D).
3. Learned Trial Court found sufficient reasons to
summon the accused. When the accused appeared, a notice of
accusation was put to them for the commission of an offence
punishable under Section 16(1)(a)(i) of the PFA Act, to which
they pleaded not guilty and claimed to be tried.
4. Learned Trial Court also summoned M/s Purnima
Sales Corporation (wholesaler), M/S Tanish Marketing
Parwanoo (supplier) and M/s AP Solvex Limited (Manufacturer)
under Section 20A of the PFA Act. When they appeared, notices
of accusation were put to them for the commission of offences
::: Downloaded on – 01/04/2026 20:34:49 :::CIS
5
2026:HHC:9660
punishable under Section 16 (1) (a) (i) of the PFA Act, to which
they pleaded not guilty and claimed to be tried.
.
5. The complainant examined five witnesses to prove
its case. Charan Dass (PW1) witnessed the sampling and carried
the sample to the public analyst at Kandaghat. L D Thakur is the
of
complainant. Naresh Kumar (PW3) proved the written consent.
R D Sharma (PW4) was posted as a dealing assistant in LHA.
rt
Sanjeev Goswami (PW5) witnessed the sampling process.
6. The accused, Sunil Kumar, in his statement recorded
under Section 313 of Cr.P.C. on his behalf and on behalf of Usha
Trading Company, admitted that the complainant had visited
his shop on 04.03.2002, and he was running the business. He
admitted that he had two plastic jars of 15 litres of Ricela Rice
Bran Oil for sale to the public. He admitted that the complainant
had purchased the sample of oil and put it in a jug. He denied
the rest of the complainant’s case. He stated that he had
purchased the jars from M/s Purnima Sales Corporation. He
claimed that he was innocent, and the sample was taken from a
sealed jar, which was kept in the same condition in which it was
purchased.
::: Downloaded on – 01/04/2026 20:34:49 :::CIS
6
2026:HHC:9660
7. The accused Nitin Aggarwal, proprietor of M/S
Tanish Marketing Company, denied the complainant’s case in
.
its entirety. He claimed that he was innocent and was falsely
implicated.
8. The accused D K Kaushal denied the complainant’s
of
case in its entirety. He stated that no bill or warranty was
produced on record. The name of the company is mentioned as a
rt
manufacturer on the jar. He claimed that he was innocent and
that he was falsely implicated.
9. Learned Trial Court held that the complainant had
visited the shop of accused Sunil Kumar on 4th March 2002 at 2
PM, where the accused Sunil Kumar was running the business of
the shop. The accused had displayed two plastic jars of Ricela,
Refined Rice Bran oil for sale to the general public. The
complainant purchased a sample of oil after issuing a notice to
the accused Sunil Kumar. The complainant completed the
formalities in the presence of Charan Dass and Sanjeev
Goswami. The sample was sent to a public analyst for analysis,
who found it to be adulterated. CMO gave a sanction after
applying her mind. The oil was manufactured by M/S AP Solvex
::: Downloaded on – 01/04/2026 20:34:49 :::CIS
7
2026:HHC:9660
Limited and remained in the same condition in which it was
manufactured. Therefore, only the manufacturer and not the
.
distributor, supplier or seller could be held liable. Hence learned
Trial Court convicted the accused DK Kaushal of the commission
of an offence punishable section 16 (1) (a) (i) of the PFA Act and
sentenced him to undergo simple imprisonment for six months,
of
pay a fine of ₹2,000 and in default of payment of fine to undergo
further simple imprisonment for 15 days for the commission of
rt
the aforesaid offence.
10. Being aggrieved by the judgment and order passed by
the learned Trial Court, the accused filed an appeal, which was
decided by the learned Additional Sessions Judge II, Shimla
(learned Appellate Court). The learned Appellate Court held that
there was no evidence that the jar and bottles were clean and
dry. The oil was not stirred and made homogeneous before
taking a sample. This violated the mandatory provisions of rules
14, 17 and 18 of the PFA Rules. The learned Magistrate was
required to conduct proceedings de novo after assuming charge
on his transfer, but failed to do so. The sample was analysed
after a delay, and the possibility of an increase in the acid
::: Downloaded on – 01/04/2026 20:34:49 :::CIS
8
2026:HHC:9660
content due to the delay could not be ruled out; hence, the
learned Appellate Court acquitted the accused.
.
11. Being aggrieved by the judgment passed by the
learned Appellate Court, the State has filed the present appeal
asserting that the learned Appellate Court erred in appreciating
of
the material on record. The statement of the complainant was
duly corroborated by the statements of Charan Daas and Sanjeev
rt
Goswami, and the documents placed on record. Therefore, it
was prayed that the present appeal be allowed and the judgment
passed by the learned Appellate Court be set aside.
12. I have heard Mr Prashant Sen, learned Deputy
Advocate General, for the appellant-State and Subhash Punshi,
learned counsel for the respondent/accused.
13. Mr Prashant Sharma, learned Deputy Advocate
General, for the appellant-State, submitted that the learned
Appellate Court erred in acquitting the accused. The accused
Sunil Kumar did not dispute that the sample was taken in clean
and dry bottles. There was no delay in analysing the sample. The
proceedings were conducted as a summons case and not as a
summary case. There was no requirement to conduct the
::: Downloaded on – 01/04/2026 20:34:49 :::CIS
9
2026:HHC:9660
proceedings de novo. Therefore, he prayed that the present
appeal be allowed and the judgment passed by the learned
.
Appellate Court be set aside.
14. Mr Subhash Punshi, learned counsel for the
respondent/accused, submitted that the learned Appellate Court
of
had rightly held that the sample was not taken in clean and dry
bottles. There was a delay in analysing the sample. The
rt
proceedings under the PFA Act have to be conducted in a
summary manner, and the learned Magistrate was required to
conduct de novo proceedings on the assumption of charge after
the transfer of his predecessor. The learned Appellate Court had
taken a reasonable view that could have been taken based on the
evidence produced before the Court, and this Court should not
interfere with the reasonable view of the learned Appellate Court
while deciding the appeal against the acquittal, even if another
view is possible. Hence, he prayed that the present appeal be
dismissed. He relied upon State of Gujarat vs Gulabgiri
Shambugiri Goswami and Distributor J H Shah 2007 FAJ 344,
Ramesh G Bandekar vs Sehumal S Virvani 2008 FAJ 125, State of HP
vs Gulshan Kumar 2000 (1) FAC 108, State of Gujarat vs Rajendra
Tulsidas 2011 (2) FAC 299, State of Maharashtra vs Vinayak
::: Downloaded on – 01/04/2026 20:34:49 :::CIS
10
2026:HHC:9660
Mahadeora Waze 2005 (2) FAC 126, State of Gujarat vs
Tharkarsibhai Prabhudasbhai Bhatti 2008 (3) Current Criminal
.
Reports 42, Narender Kumar vs State of HP 1993 (1) FAC 15, Nebh
Raj vs State (Delhi Administration) & Anr. 1980 (2) FAC 191, State
vs Dev Raj 2003 (2) FAC 426, Vishwanath vs State of HP Latest HLJ
2002 (HP) 174, and H L Nellashekara vs Food Inspector 2006 (3)
of
Criminal Court Cases 707 in support of his submission.
15.
rt
I have given considerable thought to the submissions
made at the bar and have gone through the records carefully.
16. The present appeal has been filed against a judgment
of acquittal. It was laid down by the Hon’ble Supreme Court in
Surendra Singh v. State of Uttarakhand, (2025) 5 SCC 433: 2025 SCC
OnLine SC 176 that the Court can interfere with a judgment of
acquittal if it is patently perverse, is based on misreading of
evidence, omission to consider the material evidence and no
reasonable person could have recorded the acquittal based on
the evidence led before the learned Trial Court. It was observed
at page 438:
“24. It could thus be seen that it is a settled legal position
that the interference with the finding of acquittal
recorded by the learned trial Judge would be warranted by
the High Court only if the judgment of acquittal suffers::: Downloaded on – 01/04/2026 20:34:49 :::CIS
11
2026:HHC:9660from patent perversity; that the same is based on a mis-
reading/omission to consider material evidence on
record; and that no two reasonable views are possible and.
only the view consistent with the guilt of the accused is
possible from the evidence available on record.
17. This position was reiterated in State of M.P. v.
Ramveer Singh, 2025 SCC OnLine SC 1743, wherein it was
observed:
of
21. We may note that the present appeal is one against
acquittal. Law is well-settled by a plethora of judgments
of this Court that, in an appeal against acquittal, unless
rt
the finding of acquittal is perverse on the face of the
record and the only possible view based on the evidence isconsistent with the guilt of the accused, only in such an
event, should the appellate Court interfere with a
judgment of acquittal. Where two views are possible, i.e.,
one consistent with the acquittal and the other holdingthe accused guilty, the appellate Court should refuse to
interfere with the judgment of acquittal. Reference in this
regard may be made to the judgments of this Court in thecases of Babu Sahebagouda Rudragoudarv. State of
Karnataka (2024) 8 SCC 149; H.D. Sundara v. State ofKarnataka (2023) 9 SCC 581 and Rajesh Prasad v. State of
Bihar (2022) 3 SCC 471.
18. The present appeal has to be decided as per the
parameters laid down by the Hon’ble Supreme Court.
19. It is undisputed that the Rice Bran Oil was put in a jar
before taking the sample. Complainant specifically stated this
fact in his examination-in-chief. Charan Dass (PW1) stated in
his cross-examination that the jug belonged to the accused. The
::: Downloaded on – 01/04/2026 20:34:49 :::CIS
12
2026:HHC:9660
complainant, L D Thakur, stated that the jug and the bottles
were not cleaned on the spot, but were already clean. The bottles
.
for taking samples were issued by the office of the LHA. Sanjeev
Goswami (PW5) stated that the bottles were cleaned with the
help of a cloth on the spot. As per Charan Dass, the jug was taken
from the accused; hence, specific evidence was required to be led
of
that the jug was cleaned and dried on the spot. In R.N. Tyagi v.
State of Haryana, 1999 SCC OnLine P&H 72, the bottles were
rt
opened and poured into a tub. It was held that in the absence of
evidence that the tub was cleaned and dried before pouring the
contents into it, the accused cannot be held liable. It was
observed:
“8…There is a force in the argument of the learned
counsel for the petitioner that the lack of evidence of thetub being cleaned before the contents of the bottles were
emptied in the tub creates a doubt. If such a doubt is
created, the benefit of it has to go to the petitioner.”
20. It was laid down by the Kerala High Court in
Koyakutty v. Food Inspector, 2000 SCC OnLine Ker 481: (2000) 3
KLT 693 that the accused cannot be held liable in the absence of
evidence that the intermediate vessel was clean and dry. It was
observed at page 696:
::: Downloaded on – 01/04/2026 20:34:49 :::CIS
13
2026:HHC:9660
“6. The first question that arises for consideration is
whether there is a violation of R. 14 of the Prevention of
Food Adulteration Rules in this case. The Rule requires.
the Food Inspector to take samples of food “in clean dry
bottles or jars or in other suitable containers”. In this
case, admittedly, the Food Inspector used an
intermediary vessel for the purpose of purchasing the
sample of coconut oil. There is absolutely no evidence in
the case to show that the said vessel in which the Food
Inspector took the sample was made clean and dry as
of
required under R. 14. Even P.W. 1, the Food Inspector, who
took the sample, was not prepared to swear before the
court that the intermediary vessel was clean and dry.
There is also nothing on record to indicate that before
rt
using the vessel, the Food Inspector had cleaned and
dried it. Merely because the intermediary vessel was in
use in the provision shop, it cannot be said that it was
clean and dry. There is no reliable material on record to
show that the intermediary vessel used by P.W. 1 was
being used only for the purpose of taking coconut oil.
When a sample of food is taken in a container that was
formerly used for containing another item of food, there
is a possibility of both items of food getting mixed.
(See Jagdish v. State, 1981 FAJ 509). In this connection, it is
relevant to note the following observations in Sitaram
Thirani v. State of Orissa (1977 Crl. LJ. 681):
“The fact that the offence was serious and the
consequences disastrous will not relieve the
prosecution of proving its case beyond a reasonable
doubt”
7. In the decision reported in Varghese v. Food
Inspector (1989 (2) KLT 672), it was held by this Court
that, as far as possible, the Food Inspector should sample
the article in hygienic conditions. According to the
learned Sessions Judge, there is nothing in this case to
show that the sample was not taken in hygienic
conditions. According to me, there is nothing on record to
show that the sample was taken in hygienic conditions.
Since there is no material on record to show that the
::: Downloaded on – 01/04/2026 20:34:49 :::CIS
14
2026:HHC:9660
coconut oil was taken in a clean or dry intermediary
vessel, there is a glaring violation of R. 14 of the
Prevention of Food Adulteration Rules. It is a settled
.
position that the provisions of R. 14 are mandatory and
violation thereof would vitiate the conviction.
21. A similar view was taken by the Gujarat High Court in
Mansinh Chhajuram Yadav v. State of Gujarat, 1985 SCC OnLine Guj 33:
1985 GLH 728, wherein it was observed at page 734:
of
“7. The Food Inspector has, as I stated earlier, described
the procedure followed by him at the time of collecting
the sample in minute details and has not stated as to in
rt
which pot he collected the sample. He has not stated that
he ascertained that the pot in which he collected thesample was dry and clean. This circumstance also goes
against the prosecution.
22. Madhya Pradesh High Court also took a similar view
in Satya Narain Gupta v. Keshav Deo, 1983 SCC OnLine MP 242:
(1984) 1 FAC 370 and observed at page 372:
“5. The evidence of the Food Inspector Satyanarayan
(P.W. I) though is that he after mixing the bought milk
and after dividing it into three parts had put it in three dryclean and empty bottles’ which he had sealed, he does not
say that the jug which he had taken along with him and in
which the bought milk had first been poured before
mixing it well and putting in three clean dry and empty
bottles was without any contents. He had, therefore, not
shown that the milk was not contaminated with
something which might have influenced the increase in
the fat contents and slight decrease (to the extent of 0.6
per cent in solids not fat).”
::: Downloaded on – 01/04/2026 20:34:49 :::CIS
15
2026:HHC:9660
23. A similar view was taken by the Allahabad High Court
in Shashi Kant v. State of U.P., 1982 SCC OnLine All 1376: (1983) 1
.
FAC 19 and observed at page 20:
“6. There was evidence that the sample was taken out in
a bhagona and then weighed, and no evidence was
examined to show whose bhagona it was and whether it
was clean and dry. The oil may have, therefore, beenof
adulterated when kept in this bhagona.”
24. The sample was taken on 04.03.2002, and the report
of analysis was issued on 11.04.2002. It was held in Nebh Raj v.
rt
State (Delhi Admn.), (1980) 4 SCC 552: 1980 SCC OnLine SC 29 that
the delay in analysis can lead to an increase in the fatty acid. It
was observed at page 553:
“That oxidation due to exposure to air has the effect of
increasing the free fatty acid content of edible fats, andoil cannot be disputed. Woodman in his Food Analysis, 4th
Edn., p. 170, points out:
“When acted on by the oxygen of the air, especially
in the presence of light and moisture, free fattyacids are liberated and altered with the
accompanying production of various aldehydes and
acids of lower molecular weight having a
disagreeable odour and acrid taste, the fat, or oil
then being turned ‘rancid'”.
David Pearson, in his Chemical Analysis of Foods – 7th
Edition, page 494, says :
Fats undergo changes during storage, which result
in the production of an unpleasant taste and odour,
which is commonly referred to as rancidity.
Rancidity is brought about by the action of air or by::: Downloaded on – 01/04/2026 20:34:49 :::CIS
16
2026:HHC:9660microorganisms. Oxidative rancidity is accelerated
by exposure to heat and light, by moisture and by
the presence of traces of certain metals (e. g.,.
copper, nickel, iron) …………With most oils and fats,
the free acidity increases during
storage………………..”
25. Therefore, the possibility of an increase in the acid
content due to the passage of time cannot be ruled out.
of
26. Learned Appellate Court held that the learned
Magistrate should have conducted the proceedings de novo after
rt
assuming the charge. This finding cannot be sustained. The
record shows that the proceedings in the present case were
conducted as a summons case and not as a summary case. The
notice of accusation was put, and the complete statements of the
witnesses were recorded. Therefore, there was no necessity of
conducting the proceedings de novo. It was laid down by the
Hon’ble Division Bench of the Andhra Pradesh High Court in
Food Inspector, Cir. V.M.C.H. v. Y. Babji, 2001 SCC OnLine AP 799:
(2001) 3 AP LJ 45, that Section 326 (3) of CrPC does not apply
where the complete record of the evidence was maintained. It
was observed at page 48:
“6. It is not in dispute, in the instant case, that the
summary of deposition of the witnesses had not been
recorded, and the entire depositions of the witnesses::: Downloaded on – 01/04/2026 20:34:49 :::CIS
17
2026:HHC:9660were recorded. The witnesses had also been cross-
examined. Section 16A of the Act provides for a trial in a
summary way. In a case where the second proviso is.
appended to Sec. 16A of the act applies, summons trial
may be taken recourse to.
7. Even in a summary trial, in terms of Section 262 of the
Code, the procedure specified in the Code for the trial ofsummons cases would be followed. In the event, the
procedure specified under sub-sec. (1) of Sec. 262 had
been followed, we are of the opinion that sub-section (3)of
of Sec. 326 will have no application.”
27. In Chhaju Ram vs State of HP 2002 (2) Shim. LC 155,
this Court had specifically found that the case was being tried in
rt
a summary way. Hence, the cited judgment does not apply to the
present case.
28. No other point was urged.
29. In view of the above, the learned Appellate Court had
taken a reasonable view while acquitting the accused, and no
interference is required with the judgment passed by the learned
Appellate Court.
30 Consequently, the present appeal fails, and it is
dismissed. Pending miscellaneous application(s), if any, also
stand disposed of.
31. In view of the provisions of Section 437-A of the Code
of Criminal Procedure (Section 481 of Bhartiya Nagarik Suraksha
::: Downloaded on – 01/04/2026 20:34:49 :::CIS
18
2026:HHC:9660
Sanhita, 2023) the respondent/accused is directed to furnish bail
bonds in the sum of ₹25,000/- with one surety in the like
.
amount to the satisfaction of the learned Trial Court within four
weeks, which shall be effective for six months with stipulation
that in the event of Special Leave Petition being filed against this
judgment, or on grant of the leave, the respondent/accused on
of
receipt of notice thereof, shall appear before the Hon’ble
Supreme Court. rt
32. Records be sent back to the learned Courts below
forthwith, along with a copy of the judgment.
(Rakesh Kainthla)
Judge
1st April, 2026
(Nikita)
::: Downloaded on – 01/04/2026 20:34:49 :::CIS
[ad_1]
Source link
