Research › Browse › Judgment

Allahabad High Court · body

1980 DIGILAW 729 (ALL)

Nagar Swasthya Adhikari, Agra v. Shobha Ram

1980-08-07

P.N.HARKAULI

body1980
JUDGMENT P.N. Harkauli, J. - This appeal has been filed by the Nagar Swasthya Adhikari, Agra against the judgment and order passed by the learned Mahapalika Magistrate 1st Class, Agra acquitting the respondent of an offence under Section 7/16 of the Prevention of Food Adulteration Act. 2. The prosecution case, in brief, was that the Food Inspector, Nagar Mahapalik, Agra, Sri Vishwa Nath Singh (PW 1), on 28-3-1972 at 9-30 a.m. saw the respondent taking some milk for sale in a can, that upon his enquiry the respondent told him that the can contains goats milk, that the Food Inspector took a sample of the milk and divided the same into three portions and after adding the necessary preservative sealed the three portions in separate foils, that he sent one of the foils to the Public Analyst, who reported that the sample was adulterated King deficient in non-fatty solid content by about 33%. 3. Thereafter a complaint under Section 7/16 of the Prevention of Food Adulteration Act was filed against the respondent on 8-12-1972. Upon this complaint the Magistrate ordered the case to be registered and summons to be issued to the respondent on 27-12-1972. This summon was, however, not served. The respondent was ultimately served on 4-5-1973, that is one year, one month and seven days after taking of the sample. 4. The respondent pleaded not guilty. 5. In order to prove the taking of the sample the prosecution examined the Food Inspector Sri Vishwa Nath Singh (PW 1), Narendra Kumar (PW2), a witness of the public, and Rajendra Singh (PW 3), the Food Beldar, who was present with the Food Inspector at the time of the taking of the sample. Narendra Kumar did not support the prosecution case regarding the taking of the sample and was declared hostile. The other two witnesses deposed in support of the prosecution version as detailed above. The prosecution also examined a witness, Om Prakash Bhardwaj (PW 4), the licence Clerk of the Nagar Mahapalika, to show that the respondent had obtained the licence for selling milk. 6. The respondent produced one witness Maharaj Singh in defence. This witness deposed that the Food Inspector had demanded a bribe from the respondent and when the respondent did not pay the bribe the Food Inspector concocted this false case against him. 7. 6. The respondent produced one witness Maharaj Singh in defence. This witness deposed that the Food Inspector had demanded a bribe from the respondent and when the respondent did not pay the bribe the Food Inspector concocted this false case against him. 7. The learned Magistrate believed the prosecution version that the sample was taken and that it was adulterated. However, the learned Magistrate was of the opinion that since the summons was served on the respondent as much as one year one month and seven days after the taking of the sample the respondent was deprived of the valuable right conferred upon him by Section 13(2) of the Prevention of Food Adulteration Act (as it stood at that time), and therefore the respondent was entitled to the benefit of doubt. In this view of the matter the learned Magistrate acquitted the respondent. 8. It is against this order that the Nagar Swasthya Adhikari, Nagar Mahapalika, Agra has preferred this appeal. 9. Sri Saxena, learned counsel for the appellant, contended that the learned Magistrate was in error in holding that the respondent had been deprived of the valuable right conferred on him by section 13(2) of the Prevention of Food Adulteration Act and acquitting the respondent on this ground. He pointed out that there was nothing on the record to show that the respondent at any stage applied to the learned Magistrate for sending the third phial of the sample, which was given to him, to the Director of the Central Food Laboratory and unless he did so it was not open to the respondent to claim acquittal on this ground. In support of this contention the learned counsel for the appellant relied upon the decision of the Supreme Court reported in Babu Lal Hargovind Das v. State of Gujarat, 1972 FAC 18 and Ajit Prasad v. State of Maharashtra, 1972 FAC 545. 10. I have gone through these rulings and both these rulings support his contention. In support of this contention the learned counsel for the appellant relied upon the decision of the Supreme Court reported in Babu Lal Hargovind Das v. State of Gujarat, 1972 FAC 18 and Ajit Prasad v. State of Maharashtra, 1972 FAC 545. 10. I have gone through these rulings and both these rulings support his contention. In Baboo Lal Har Govind Das case it has been observed as follows : "There is also in our view no justification for holding that the accused had no opportunity for sending the sample in his custody to the Director, Central Food Laboratory under Section 13(2) because he made no application to the Court for sending it....................No such defence is available to the Appellant in this case..............the Appellant had not even made an application to send the sample to the Director of Central Food Laboratory." In Ajit Prasads case the Supreme Court referring to the case of Baboo Lal Har Govind Das observed as follows : "In Baboo Lal Har Govind Das v. The State of Gujarat (supra), Jaganmohan Reddy, J. speaking for the Court, said that unless an application to send the sample to the Director is made, the vendor cannot complain that he was deprived of his right to have the sample analysed by the Director". 11. The Supreme Court further observed as follows in Ajit Prasad's case : "The learned Magistrate was wrong in thinking that no useful purpose would be served by sending the sample for analysis by the Director. It was not for the Magistrate to decide without any date that the sample would be decomposed and the incapable of being analysed." 12. In view of those authorities of the Supreme Court it is clear that when the respondent never applied to the Court for sending the sample given to him to the Director, Central Food Laboratory it could not be held that the respondent had been deprived of the valuable right conferred on him by section 13(2) of the Prevention of Food Adulteration Act and he could not be acquitted on this ground. 13. 13. The learned counsel for the respondent placed great emphasis on the use of the words "without any data" in the observations of the Supreme Court in Ajit Prasads case quoted above and contended that the rulings of the Supreme Court in the cases of Babulal Flargovind das and Ajit Prasad could have no application to a case where the accused person can show, whether by expert evidence or, what is obviously more weighty material, an authoritative decision, that owing to the lapse of time the sample must have deteriorated. The learned counsel for the respondent referred to the decision by a Division Bench of this Court in Nagar Swasthya Adhikari v. Ram Babu, (1969 A.C.C. 271) in which it had been held by this Court on the basis of experiments conducted by the Public Analyst under the directions of this Court that even when two drops of formalin per ounce are added to a sample of milk it curdles after 308 days, and urged that in view of this authority it could not be doubted that the sample given to the respondent must have deteriorated and become unfit for analysis on the date on which the respondent was served with the summons and, therefore, sending the sample to the Director, Central Food Laboratory would have been a futile formality. According to the learned counsel for the respondent the rulings of the Supreme Court in Babulal Hargovindas and Ajit Prasads case can have no application to the case of this nature. I am unable to agree with this contention. No doubt, it appears from the words "without any data" in the ruling in Ajit Prasads case, that if in a given case the Court is in a position to give a definite finding that owing to delay, for which the accused person is not to be blamed, the sample must have deteriorated and become unfit for analysis then the failure of the accused to apply for sending the sample to the Director, Central Food Laboratory will not disentitle him to contend that he has been deprived of the valuable right conferred by section 13(2) of the Act. But it must be remembered that the observation of the Division Bench of this Court in Ram Babus case is a statement of only probabilities and not of certainty. But it must be remembered that the observation of the Division Bench of this Court in Ram Babus case is a statement of only probabilities and not of certainty. So, when the accused person is in possession of the sample given to him and, in case the sample has really a deteriorated, he can prove this with certainty by producing the sample and having it sent to and tested by the Director, Central Food Laboratory and yet he fails to do so then it can hardly be said that he has been deprived of the light conferred by Section 13(2) of the Act. Reliance on mere probabilities cannot help an accused person, when it is in his power to prove a fact with certainty and he avoids doing so. This appears to me to be the principle underlying the observations of the Supreme Court in cases of Babulal Hargovindas and Ajit Prasad that the accused cannot complain that he was deprived of the right to have the sample analysed by the Director of Central Food Laboratory when he never sought to get it done. 14. In short, I am of the opinion that it is not possible to hold that the respondent was deprived of the right conferred by Section 13(2) of the Act. Consequently it must be held that the learned Magistrate was wrong in acquitting the respondent on the ground that he had been deprived of the right conferred by Section 13(2) of the Act. 15. A perusal of the judgment of the learned Magistrate shows that he did not doubt the evidence of the prosecution witnesses. After going through the same also do not see any reason to doubt their evidence that a sample was taken from the respondent and it was found to be adulterated. Indeed the learned counsel for the respondent himself did not point out anything in the evidence of the prosecution witnesses which could throw the least doubt on their veracity. 16. For these reasons I am of the opinion that the charge under section 7/16 of the Prevention of Food Adulteration Act was fully established against the respondent and the learned Magistrate was in error in acquitting him. This appeal must be allowed and the acquittal of the respondent must be set aside. 17. 16. For these reasons I am of the opinion that the charge under section 7/16 of the Prevention of Food Adulteration Act was fully established against the respondent and the learned Magistrate was in error in acquitting him. This appeal must be allowed and the acquittal of the respondent must be set aside. 17. Coming now to the question of sentence, considering that this is an appeal against acquittal, that matter relates to the year 1972 when it was not obligatory to pass a sentence of imprisonment and the other circumstances, I am of the opinion that a sentence of Rs. 300/- as fine will be sufficient to meet the ends of justice. 18. The appeal is allowed, the judgment and order passed by the learned Magistrate are set aside, the respondent is convicted under Section 7/16 of the Prevention of Food Adulteration Act and he is sentenced to pay a fine of Rs. 300/-. In default of payment of fine the respondent will undergo three months rigorous imprisonment. The respondent is allowed one months time from the date of receipt of record in the trial court to pay the fine. If be fails to pay the fine within the time allowed or such further time as the learned Chief Judicial Magistrate Agra, may allow he shall be taken into custody to serve out the sentence.