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Allahabad High Court · body

1964 DIGILAW 62 (ALL)

Jagat Bahadur Singh v. State of U. P.

1964-02-03

C.B.CAPOOR

body1964
JUDGMENT C. B. Capoor, J. - This application in revision by Jagat Bahadur Singh is directed against an appellate order of the learned III Additional Civil and Sessions Judge, Allahabad dismissing the appeal filed by the applicant against an order of the learned Magistrate convicting him of the offence under Section 7 read with Section 16 of the Prevention of Food Adulteration Act, 1954 and sentencing him to a fine of Rs. 500/- and in default to undergo S. I. for three months. 2. Briefly stated, the case against the applicant was that on November 4, 1961 at about 10 a.m. he was found by Food Inspector, Sri K. C. Misra, to be selling milk at the Jamuna bridge, Naini. The Food Inspector took 3/4 seer of milk to serve as a sample for analysis and paid a sum of 37 nP. to the applicant. The procedure prescribed by the aforesaid Act and the rules framed thereunder for the taking of the sample was followed. 3. The applicant pleaded to be not guilty and his case was that he was a servant of one Sri B. P. Hajela who owned a factory at Naini and also maintained his cows and buffaloes in the premises of the aforesaid factory and that daily he used to carry the milk yielded by those cows and buffaloes to his master who resided in the city. It was denied that he used to sell milk or that he had sold milk to the Food Inspector. While it was not specifically denied that a sample of the milk was taken by the Food Inspector, it was denied that any price was paid by the latter to him. The sample of the milk taken by the Food Inspector was sent for analysis to the Public Analyst and it was found to be deficient in fat content. The Courts below have arrived at the concurrent finding that the sample taken by the Food Inspector was adulterated and that milk was sold by the applicant. f 4. On behalf of the applicant it has been strenuously contended that the applicant was not a seller of milk but he merely carried the milk of his master from one place to another. The statements made by the Food Inspector and the Sanitary Havildar indicated that the applicant used to sell milk. f 4. On behalf of the applicant it has been strenuously contended that the applicant was not a seller of milk but he merely carried the milk of his master from one place to another. The statements made by the Food Inspector and the Sanitary Havildar indicated that the applicant used to sell milk. Thus the mere fact that the applicant happened to be a servant of Sri Hajela would not avail him. It has also been contended on behalf of the applicant that, in any view of the case, the milk was not intended for sale. If the applicant was selling milk the mere fact that the milk was not intended or meant for sale would not help the applicant. Moreover, it is clear not only from the definition of the word "sale" as given in Section 2s clause (xiii) of the Prevention of Food Adulteration Act, 1954 that the sale of an article of food for analysis is also a sale within the meaning of the word "sale" as used in that Act, but it has also been held in Municipal Board, Faizabad v. Lal Chand , 1963 ALJR 1012 that even a sale for analysis comes within the definition of "sale" under Section 2 (xiii) of the Act and that even such sale is an offence under Section 7 of the Act. 5. It has also been contended on behalf of the applicant that the provisions of Section 342 of Cr.P.C. were not complied with and, as such, the order of conviction was vitiated. It has recently' been held by the Supreme Court that the omission to comply with the provisions of Section 342 of Cr.P.C. strictly will not vitiate a trial, if the accused has not been prejudiced. In the instant case, it has not been shown that the applicant was prejudiced in any way because his examination under Section 342 of Cr.P.C. was not a detailed one. The applicant was present during the trial throughout and the question put by the learned Magistrate to the applicant was that he had heard the evidence led on behalf of the complainant and had he anything to say with regard to it. 6. The applicant was present during the trial throughout and the question put by the learned Magistrate to the applicant was that he had heard the evidence led on behalf of the complainant and had he anything to say with regard to it. 6. It has also been contended on behalf of the applicant that the personal presence of the complainant had not been dispensed with by the learned Magistrate and as he was absent on some of the dates of hearing the trial was vitiated. In the case of Premkumar v. The State, A.I.R. 1963 Raj. 77 it was held that in a summons case merely because some proceedings were taken by the Magistrate in the absence of the complainant without dispensing with his personal attendance the proceedings would not be vitiated unless some prejudice was shown to have been caused to the accused and that where no objection was taken by the accused when the complainant was absent, nor did the court pass an order of acquittal it was too late in the day to challenge the conviction on the ground that on some date the complainant was absent and the Magistrate should have passed an order of acquittal. In the instant case also no prejudice is shown to have been caused. 7. The application in revision is devoid of merits and is accordingly dismissed.