CR.A/4168/2013 on 26 October 2026

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 4168 of 2013 Reserved on: 12.10.2026 Date of Decision: 26.10.2026. State of H.P. ...Appellant Versus Kamlesh Kumar

...Respondent

Coram

Hon’ble Mr Justice Rakesh Kainthla, Judge. Whether approved for reporting?1 Yes For the Appellant : Mr Tarun Pathak, Deputy Advocate General. For the respondent/State : Mr Ajay Chandel, Senior Advocate with M/s Ridhi Verma and Sidhant Jamwal, Advocates. Rakesh Kainthla, Judge The present appeal is directed against the judgment dated 14.05.2013 passed by learned Judicial Magistrate First Class, Manali, District Kullu (learned Trial Court) vide which the respondent (accused before learned Trial Court) was acquitted of the commission of offences punishable under Sections 16(1-A), 16(1)(a)(i) read with Section 7(i) and Section

Whether reporters of Local Papers may be allowed to see the judgment? Yes.

2(i-a)(i) of Prevention of Food Adulteration Act, 1954 (hereinafter to be referred as “PFA Act”). (The parties shall 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 M.D. Sharma (CW1) was posted as Food Inspector of Kullu and Lahaul and Spiti. He and Prem Nath (CW3) inspected Manali Van Vihar Food Corner on 11.04.2008. Accused Kamlesh Thakur was present in the restaurant, and the complainant disclosed his identity as a Food Inspector. The complainant demanded three plates of tomato soup (prepared food) as a sample vide notice (Ext.CW1/A). The accused sold 3 soup bowls of 220 ml each to the complainant. The complainant paid ₹90/- as the cost of the tomato soup and obtained the receipts (Ext.CW1/B and Ext.CW1/C). The complainant put three bowls in a pan, and poured the contents of the pan into three neat, clean and dry bottles with the help of a spoon and added 20 drops of formalin in each bottle. He put the cork on the bottle and made it airtight. He sealed the bottle in thick, strong wrapping paper, labelled each bottle with paper slip KHD/077/2008 issued to the complainant by the local health authority (LHA), and obtained the signatures of the accused in such a manner that half of the impression came on the LHA slip and the other half on the wrapping paper. He fastened each bottle with thread, and affixed the seal of the Food Inspector on each bottle. He prepared the panchanama (Ext.CW1/D), and obtained the stock statement (Ext.CW1/E). He sent one part of the sample to the Public Analyst Kandaghat by means of a courier and obtained the receipt (Ext.CW1/G). He sent Form-7 (Ext.CW1/F) separately and obtained a postal receipt. The two parts of the samples (Ext.CW1/J) were handed over to LHA Kullu by hand, and LHA was informed about sending the sample to Public Analyst Kandaghat. The report of analysis (Ext.CW1/K) was issued, stating that synthetic colour “Sunset Yellow FCF” was detected in the soup and that it was adulterated. This report was forwarded by the Public Analyst to LHA Kullu by means of letter (Ext.CW1/L). The Dealing Assistant informed the complainant about the report of analysis. The complainant produced all the documents before CMO Kullu for obtaining the written consent. CMO Kullu went through the file and issued the consent (Ext.CW1/P). The complainant filed a complaint

(Ext.CW1/O), and he intimated the LHA regarding the filing of the complaint. A notice under Section 13(2) (Ext. CW2/B) was sent to the accused along with the copy of the report of analysis (Ext.CW1/C), and the receipt (Ext.CW2/C) was obtained from the Postal Department.

3. The learned Trial Court found sufficient reasons to summon the accused. When the accused appeared, a notice of accusation was put to him for the commission of an offence punishable under Section 16(1)(a)(i) of the PFA Act, to which he pleaded not guilty and claimed to be tried.

4. The complainant examined three witnesses to prove its case. M.D. Sharma (CW1) is the complainant. Pardeep (CW2) is the Dealing Assistant of LHA. Prem Nath (CW3) had witnessed the taking of the sample.

5. The accused, in his statement recorded under Section 313 of the Code of Criminal Procedure (CrPC), admitted that he was running a restaurant in the name and style of M/s Manali Van Vihar Food Corner. He admitted that he had sold three plates of tomato soup to the accused and issued a receipt. He admitted that panchanama was prepared and the stock statement was seized by the complainant. He denied the rest of the complainant’s case. He claimed that a false case was made against him. He did not produce any evidence in his defence.

6. Learned Trial Court held that the complainant had not joined any independent person. The complainant had not mentioned whether he had himself cleaned the bottles or the bottles were got cleaned from someone else. There was no proof that the notice was actually served upon the accused, and Section 13 (2) of the PFA Act was not complied with. Therefore, the learned Trial Court acquitted the accused.

7. Being aggrieved by the judgment passed by the learned Trial Court, the State has filed the present appeal asserting that the learned Trial Court erred in acquitting the accused. The accused admitted that he was running the restaurant and was responsible for the sale made to the Food Inspector. The learned Trial Court erred in holding that the statements of independent witnesses were required to corroborate the testimony of the Food Inspector. The statement of Prem Nath (CW3) could not have been ignored on the ground that he was posted in the office of CMO. The notice was sent to the correct address, and the mere fact that it was not sent to the permanent address was not sufficient to acquit the accused. Therefore, it was prayed that the present appeal be allowed and the judgment passed by the learned Trial Court be set aside.

8. I have heard Mr Tarun Pathak, learned Deputy Advocate General for the appellant/State and Mr Ajay Chandel, learned Senior Advocate, assisted by M/s Ridhi Verma and Sidhant Jamwal, learned counsel for the respondent/accused.

9. Mr Tarun Pathak, learned Deputy Advocate General for the appellant/State, submitted that the learned Trial Court erred in acquitting the accused. The testimony of the Food Inspector regarding the sale of tomato soup was corroborated by the testimony of Prem Nath (CW3), and the statement of the accused under Section 313 CrPC. The sample was found to be adulterated after the analysis. The prosecution had proved its case beyond reasonable doubt, and the learned Trial Court erred in acquitting the accused. Therefore, he prayed that the present appeal be allowed and the judgment passed by the learned Trial Court be set aside.

10. Mr Ajay Chandel, learned Senior Advocate for the respondent/accused, submitted that the prosecution was required to prove that the notice was served upon the accused and mere sending of the notice was not sufficient. The learned Trial Court had rightly acquitted the accused. There is no infirmity in the judgment passed by the learned Trial Court. Hence, he prayed that the present appeal be dismissed. He relied upon the judgment of Hon'ble Supreme Court in Vijendra v. State of U.P., (2020) 15 SCC 763 : (2020) 4 SCC (Cri) 901: 2019 SCC OnLine SC 949 and Narayana Prasad Sahu v. State of M.P., (2022) 1 SCC 87 : (2022) 1 SCC (Cri) 184: 2021 SCC OnLine SC 1016 in support of his submissions.

11. I have given considerable thought to the submissions made at the bar and have gone through the records carefully.

12. The present appeal has been filed against a judgment of acquittal. It was laid down by the Hon’ble Supreme Court in Sanjay Kumar v. State of Bihar, 2026 SCC OnLine SC 1373, that the Court can interfere with a judgment of acquittal only if it is impossible, perverse, wholly unsustainable, or manifestly illegal. It was observed: Scope of interference with an acquittal:

26. At the outset, it is necessary to remind ourselves of the settled principles governing interference with an order of acquittal. An accused is presumed innocent until proven guilty. When a court of competent jurisdiction acquits the accused, the presumption of innocence is not weakened but reinforced. Where such acquittal is affirmed by the High Court, the caution to be exercised by this Court under Article 136 is even greater.

27. In Kali Ram v. State of Himachal Pradesh (1973) 2 SCC 808: 1973 SCC (Cri) 1048, this Court explained the golden thread running through criminal jurisprudence in the following words: “25. Another golden thread which runs through the web of the administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. This principle has a special relevance in cases wherein the guilt of the accused is sought to be established by circumstantial evidence. A rule has accordingly been laid down that unless the evidence adduced in the case is consistent only with the hypothesis of the guilt of the accused and is inconsistent with that of his innocence, the Court should refrain from recording a finding of guilt of the accused. It is also an accepted rule that in case the Court entertains reasonable doubt regarding the guilt of the accused, the accused must have the benefit of that doubt. Of course, the doubt regarding the guilt of the accused should be reasonable; it is not the doubt of a mind which is either so vacillating that it is incapable of reaching a firm conclusion or so timid that it is hesitant and afraid to take things to their natural consequences. The rule

regarding the benefit of doubt also does not warrant acquittal of the accused by resort to surmises, conjectures or fanciful considerations. As mentioned by us recently in the case of State of Punjab v. Jagir Singh, a criminal trial is not like a fairy tale wherein one is free to give flight to one's imagination and fantasy. It concerns itself with the question as to whether the accused arraigned at the trial is guilty of the offence with which he is charged. Crime is an event in real life and is the product of the interplay of different human emotions. In arriving at the conclusion about the guilt of the accused charged with the commission of a crime, the Court has to judge the evidence by the yardstick of probabilities, intrinsic worth and the animus of witnesses. Every case in the final analysis would have to depend upon its own facts. Although the benefit of every reasonable doubt should be given to the accused, the Courts should not at the same time reject evidence which is ex facie trustworthy on grounds which are fanciful or in the nature of conjectures.”

28. The decision in Kali Ram (supra) further cautions that wrongful acquittal and wrongful conviction do not stand on the same footing, for conviction of an innocent person causes grave injustice and shakes public confidence in the administration of criminal justice. The rule of benefit of doubt, therefore, is not technical; it is a substantive safeguard flowing from the presumption of innocence.

29. In Ghurey Lal v. State of Uttar Pradesh (2008) 10 SCC 450: (2009) 1 SCC (Cri) 60, this Court reiterated the limited scope of interference with acquittals. This Court observed: “75. The Trial Court has the advantage of watching the demeanour of the witnesses who have given evidence; therefore, the appellate court should be slow to interfere with the decisions of the Trial Court. An acquittal by the Trial Court should not be interfered with unless it is totally perverse or wholly unsustainable.”

30. The decision in Ghurey Lal (supra) also crystallised certain propositions: first, there is a double presumption of innocence in favour of an acquitted accused; secondly, if two views are possible, the view favourable to the accused must prevail; thirdly, though the appellate court has the power to reappreciate evidence, it should interfere only when the acquittal is manifestly illegal, perverse or results in miscarriage of justice; and fourthly, due weight must be given to the Trial Court's findings, particularly because the trial judge had the advantage of observing the demeanour of witnesses.

31. In Chandrappa v. State of Karnataka (2007) 4 SCC 415: (2007) 2 SCC (Cri) 325, this Court held that though the appellate court has full power to review and reappreciate the evidence, the presumption of innocence is strengthened by an order of acquittal. It was held that when two reasonable conclusions are possible on the basis of evidence on record, the appellate court should not disturb the finding of acquittal.

32. The same principle was restated in Mrinal Das v. State of Tripura (2011) 9 SCC 479, wherein this Court held that an order of acquittal is to be interfered with only when there are compelling and substantial reasons for doing so. If two reasonable views are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal.

33. Therefore, the question before us is not whether another view on the evidence is possible. The question is whether the view taken by the Trial Court and affirmed by the High Court is impossible, perverse, wholly unsustainable, or manifestly illegal. Having examined the record, we are unable to hold so.

13. The present appeal has to be decided as per the parameters laid down by the Hon’ble Supreme Court.

14. It was specifically stated in para 2 of the complaint that the soup was put in a pan, and three equal parts were put in three neat, clean, and dry bottles. The informant and M.D. Sharma stated that three soup bowls were sold to him by the accused. He put the soup into three clean and dry bottles. Prem Nath (CW3) also made a similar statement. However, none of the witnesses has stated that the pan in which the soup was poured was clean and dry. In R.N. Tyagi v. State of Haryana, 1999 SCC OnLine P&H 72, the bottles were 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 the tub 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.”

15. 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: “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 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 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 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.

16. 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: “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 which pot he collected the sample. He has not stated that he ascertained that the pot in which he collected the sample was dry and clean. This circumstance also goes against the prosecution.

17. 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 dry, clean, 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 it 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).”

18. 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, been adulterated when kept in this bhagona.”

19. Therefore, the complainant's case would become suspect in the absence of any evidence that the pan in which the soup was poured was clean and dry and did not contain anything which could have adulterated the soup.

20. Pradeep Kumar (CW2) stated that he had sent the notice under Section 13(2) of the PFA Act (Ext.CW2/B) and the copy of the report of analysis (Ext.CW1/K) to the accused by means of a registered letter. He made an enquiry from the Postmaster, who told him that the registered letter was delivered to the accused. He admitted in his cross-examination that he had not taken any document from the postal authority regarding the delivery of the notice upon the accused. He also

admitted that no acknowledgement was received regarding the delivery of the notice upon the accused.

21. The statement of this witness shows that he is relying upon the enquiry made from the Postmaster to prove that the notice was duly served upon the accused. However, the post master was not examined. It was laid down by the Hon’ble Supreme Court in J.D. Jain v. State Bank of India, (1982) 1 SCC 143, that the statement of a witness made to a person who is not called as a witness is hearsay and inadmissible when the object of the evidence is to establish the truth of what is contained in the statement. It was observed: - “21. The word 'hearsay' is used in various senses. Sometimes it means whatever a person is heard to say; sometimes it means whatever a person declares on the information given by someone else. (See Stephen on Law of Evidence).

22. The Privy Council in the case of Subramaniam v. Public Prosecutor, (1956) 1 WLR 965 observed: "Evidence of a statement made to a witness who is not himself called as a witness may or may not be hearsay. It is hearsay and inadmissible when the object of the evidence is to establish the truth of what is contained in the statement. It is not hearsay and is admissible when it is proposed to establish by the evidence, not the truth of the statement, but the fact that it was made. The fact that it was made quite apart from its truth is frequently relevant in considering the mental state and conduct thereafter of the witness or some other persons in whose presence these statements are made."

22. It was held in Kalyan Kumar Gogoi v. Ashutosh Agnihotri, (2011) 2 SCC 532: 2011 SCC OnLine SC 200 that hearsay evidence is inadmissible. It was observed at page 545:

37. Here comes the rule of appreciation of hearsay evidence. Hearsay evidence is excluded on the ground that it is always desirable, in the interest of justice, to get the person whose statement is relied upon into court for his examination in the regular way, in order that many possible sources of inaccuracy and untrustworthiness can be brought to light and exposed, if they exist, by the test of cross-examination. The phrase “hearsay evidence” is not used in the Evidence Act because it is inaccurate and vague. It is a fundamental rule of evidence under Indian law that hearsay evidence is inadmissible. A statement, oral or written, made otherwise than by a witness in giving evidence and a statement contained or recorded in any book, document or record whatsoever, proof of which is not admitted on other grounds, are deemed to be irrelevant for the purpose of proving the truth of the matter stated. An assertion other than one made by a person while giving oral evidence in the proceedings is inadmissible as evidence of any fact asserted. That this species of evidence cannot be tested by cross- examination and that, in many cases, it supposes some better testimony which ought to be offered in a particular case, are not the sole grounds for its exclusion. Its tendency to protract legal investigations to an embarrassing and dangerous length, its intrinsic weakness, its incompetence to satisfy the mind of a judge about the existence of a fact, and the fraud which may be practised with impunity, under its cover, combine to support the rule that hearsay evidence is inadmissible.

38. The reasons why hearsay evidence is not received as relevant evidence are:

(a) the person giving such evidence does not feel any responsibility. The law requires all evidence to be given under personal responsibility, i.e. every witness must give his testimony under such circumstances as expose him to all the penalties of falsehood. If the person giving hearsay evidence is cornered, he has a line of escape by saying, “I do not know, but so and so told me”

(b) truth is diluted and diminished with each repetition, and

(c) if permitted, it gives ample scope for playing fraud by saying “someone told me that…”. It would be attaching importance to false rumour flying from one foul lip to another. Thus, statements of witnesses based on information received from others are inadmissible.”

23. Therefore, the statement made by the Postmaster to this witness that the notice was served upon the accused is hearsay and cannot be proved without examining the Postmaster or the official who had delivered the notice to the accused.

24. Pradeep Kumar (CW2) admitted that he had not received the acknowledgement and had not taken any slip regarding the delivery of the notice upon the accused. Thus, there is no proof of the delivery of the notice upon the accused. It was laid down by the Hon'ble Supreme Court in Vijendra

(supra) that the prosecution is required to prove that the notice was actually delivered to the accused and mere proof of sending is not sufficient. It was observed at page 768:

14. On this aspect of the matter, we take note that while adverting to the provision in Section 13(2) requiring to furnish the report of the Analyst to the accused as contemplated therein, the learned Judges of all the three courts have taken note of the evidence of PW 2 Shri Jaipal Singh, the Food Clerk, who claimed to have dispatched the report by registered post on 7-4-1980. The learned Judges have, however, failed to take note that no evidence was brought on record to indicate that the report which is claimed to have been dispatched was actually served or delivered to the appellant. The very purpose of furnishing such report is to enable the accused to seek reference to the Central Food Laboratory for analysis if the accused is dissatisfied with the report. Such safeguard provided to the accused under Section 13(2) of the Act is a valuable right. In that view, even if the dispatch of the report on 7-4-1980 is taken as substantial compliance, though it is beyond the period of 10 days from 18-3-1980, i.e. the date on which the prosecution was lodged, in the absence of proof of delivery of the report to the accused; in the instant facts, the valuable right available to the appellant-accused to seek reference within the period of 10 days stands defeated. In that circumstance, when the appellant- accused is made to suffer the penal consequences, it will have to be construed strictly. In the facts and circumstances of this case, since, as already noticed above, the report of the Analyst has not in fact been served on the appellant and the mere dispatch of the report, as per the statement of PW 2, was not sufficient. If that be the position, the entire case of the prosecution which revolves around and is built upon the report of the Analyst cannot be made the basis for holding the appellant-accused guilty in the present case.

25. This position was reiterated in Narayana Prasad Sahu (supra), wherein it was held at page 90:

8. Rule 9-B of the said Rules reads thus: “9-B. Local (Health) Authority to send report to person concerned.—The Local (Health) Authority shall within a period of ten days after the institution of prosecution forward a copy of the report of the result of analysis in Form III delivered to him under sub-rule (3) of Rule 7, by registered post or by hand, as may be appropriate, to the person from whom the sample of the article was taken by the Food Inspector, and simultaneously also to the person, if any, whose name, address and other particulars have been disclosed under Section 14-A of the Act: Provided that where the sample conforms to the provisions of the Act or the rules made thereunder, and no prosecution is intended under sub-section (2), or no action is intended under sub-section (2-E) of Section 13 of the Act, the Local (Health) Authority shall intimate the result to the vendor from whom the sample has been taken and also to the person, whose name, address and other particulars have been disclosed under Section 14- A of the Act, within 10 days from the receipt of the report from the Public Analyst.” More than one mode was prescribed by Rule 9-B for serving the report of the Public Analyst on the accused. In the present case, after the postal packet was returned, not even an attempt was made to personally serve the report on the appellant.

9. On the basis of endorsements of the postman appearing on the postal envelope containing the report, the High Court has recorded a finding of refusal on the part of the appellant to accept the report. The said finding is obviously erroneous as the endorsements on the postal envelope were not proved by examining the postman. Moreover, the High Court has glossed over the mandatory requirement under sub-section (2) of Section 13 of serving a copy of the report on the accused. Evidence adduced by the prosecution was of mere dispatch of the report. Hence, the mandatory requirement of sub-section (2) of Section 13 was not complied with. Therefore, the conviction and sentence of the appellant cannot be sustained.

26. In the present case, there is no proof of the actual delivery of the notice to the accused and the learned Trial Court had rightly held that the prosecution had not proved the delivery of the notice, which is essential to convict the accused.

27. Therefore, the learned Trial Court had taken a reasonable view, and no interference is required with the judgment of the learned Trial Court while deciding an appeal against acquittal.

28. No other point was urged.

29. In view of the above, the present appeal fails and is dismissed. Pending applications, if any, also stand disposed of.

30. In view of the provisions of Section 437 A of the Code of Criminal Procedure (Section 481 of Bhartiya Nagarik Suraksha Sanhita, 2023) the respondent is directed to furnish bail bond in the sum of ₹50,000/- with one surety of the like amount to the satisfaction of the learned Registrar (Judicial) of this Court/learned Trial Court, which shall be effective for six months with a stipulation that in the event of a Special Leave Petition being filed against this judgment or on grant of the leave, the respondent on receipt of notice thereof shall appear before the Hon'ble Supreme Court.

31. A copy of the judgment, along with the record of the learned Trial Court, be sent back forthwith.

(Rakesh Kainthla)

Judge 26th October, 2026 (Nikita)