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Allahabad High Court · body

1981 DIGILAW 174 (ALL)

Hanif v. State of U. P.

1981-02-02

J.P.CHATURVEDI

body1981
Judgment J.P. Chaturvedi, J. 1. THIS is a revision against judgment and order of the learned Sessions Judge, Kanpur dismissing an appeal of the applicant Hanif and affirming his conviction and sentence passed by the learned Metropolitan Magistrate, Kanpur. The applicant was convicted of an offence u/S. 16 read with Sec. 7 of the Prevention of Food Adulteration Act and was sentenced to undergo rigorous imprisonment for six months and to pay a fine of Rs, 1,000/-. 2. THE prosecution case was that on 30th of December, 1978 at 7.30 a. m., Food Inspector R. N. Saxena, visited the dairy of the applicant Hanif situated at Vinobha Nagar, Kanpur. He found that: the applicant was selling buffalo's milk. Accordingly after disclosing his identity and giving him a notice in form no. 6 he purchased 660 mis. of milk from the applicant and paid a sum of Rs. 1.66 and obtained a receipt for the same. THE sample milk was divided into three parts, one of which was sent to Public Analyst, Lucknow. THE latter reported that the sample milk contained 5.8% and 7.3% non-fatty solids and that the milk was adulterated when judged on the basis of tie standard of she buffalo milk. The applicant pleaded not guilty. He stated that the milk was cow milk. 3. THE prosecution examined the flood Inspector R. N. Saxena (P.W.1) and S. K. Johri (P.W.2). THE former has deposed as to how the sample was taken by him. 4. THE only point which has been urged before me in this case is that the Public Analyst who analysed the sample milk of the applicant had no authority to do so. In this connection it was pointed out that the appointment of a Public Analyst is made under the provisions of Sec. 8 of the Prevention of Food Adulteration Act. THE section provides as follows :- "THE Central Government or the State Government may, by notification in the official Gazzete, appoint such persons as it thinks fit, having the prescribed qualifications to be public analysts for such local areas as may be assigned to them by the Central Government or the State Government, as the case may be." Under this section the Public Analyst! is to be appointed by the Central Government or the State Government by a notification in the Official Gazette for such local area as; may be assigned to him. is to be appointed by the Central Government or the State Government by a notification in the Official Gazette for such local area as; may be assigned to him. THE expression 'local area' is defined in Sec. 2(7) as 'any area whether urban or rural declared by the Central Government or the State Government by notification in the Official Gazette to be the local area for the purpose of this Act." Relevant notification number 11570(1)/XVI-X-1314/72 dated February 15, 1975 printed in the Uttar Pradesh Gazette of the same date is as follows : "In continuation of Government notification no. 2415(4)/XVI-I-112-71 dated June 23, 1972 and in exercise of powers u/S. 8 of the Prevention of Food Adulteration Act, 1954 (Act No. 37 of 1954), the Governor is pleased to appoint for the purposes of the said Act Sri B. S. Garg, Assistant Public Analyst, as Public Analyst to Government, Varanasi (Comprising districts of Varanasi, Ghazipur, Mirzapur, Jaunpur and Ballia) and Allahabad Region (comprising districts of Allahabad, Fatehpur, Kanpur, Farrukhabad and Etawah) which shall be deemed as one single local area for the purposes of the said Act with effect from the date of publication of this notification in the official Gazette." 5. THIS notification purports to be in continuation of Government notification No. 2415 (4) XVI-X-112-71 dated June 23, 1972 which may be reproduced as follows :- "In super-session of Government notification No. 2424 (III) XVI-I-59- 70, dated August 7, 1970 in exercise of the powers under section 8 of the Prevention of Food Adulteration Act, 1954 (Act 37 of 1954), the Governor is pleased to appoint Dr. S. B. Singh, M. Sc., P.H.D., as Public Analyst to Government for the whole of Uttar Pradesh, which shall be regarded as one single local area for the purposes of the said Act, with effect from the afternoon of March 31, 1972." 6. THE notification dated June 23, 11972 appointed Dr. S. B. Singh as Public Analyst to the Government for the whole of Uttar Pradesh and had declared that the whole of Uttar Pradesh shall be regarded as one single local area for the purposes of the said Act with effect from the afternoon of March 31, 1972. THE notification dated June 23, 11972 appointed Dr. S. B. Singh as Public Analyst to the Government for the whole of Uttar Pradesh and had declared that the whole of Uttar Pradesh shall be regarded as one single local area for the purposes of the said Act with effect from the afternoon of March 31, 1972. THE notification dated 15-2-1975 purports to appoint Sri B.S. Garg as Public Analyst to Government for Varanasi region, comprising of districts of Varanasi, Ghazipur, Mirzapur., Jaunpur and Ballia and Allahabad region comprising of districts of Allahabad, Fatehpur, Kanpur, Farrukhabad and Etawah and declared that these two regions comprising of the districts mentioned above "shall be deemed as one single local area for the purposes of the said Act." The contention of the learned counsel for the applicant is that inasmuch as Sri B. S. Garg had been appointed Public Analyst for the regions of Varanasi and Allahabad, Dr. S. B. Singh had no jurisdiction within these regions to act as Public Analyst to the Government. 7. IN the notification dated February 15, 1975 two expressions are important viz, in continuation of Government notification etc., and "which shall be deemed as one single local area for the purposes of the said Act". The notification dated 15-2-1975 does not wholly supersede the notification dated June 23, 1972 appointing Dr. S.B. Singh as Public Analyst for whole of Uttar Pradesh. It allowed that notification to continue. The contention of the learned counsel for the respondents is that the effect of these words was Dr. S. B. Singh notwithstanding the notification dated 15-2-1975 continued to be the Public Analyst for whole of Uttar Pradesh including the regions of Varanasi and Allahabad. I am unable to accept this contention. The words "shall be deemed as one single local area" in the notification dated 15-2-1975 make it amply clear that Varanasi region and Allahabad region were to be treated separately from the other regions of Uttar Pradesh. The words "one single local area'' signifies that these regions are to be treated distinct and separates entity as distinguished from other regions. The effect of this notification was that there were to be two local areas in Uttar Pradesh, one comprising of the regions of Varanasi and Allahabad and the other of the other regions. IN this view Dr. The words "one single local area'' signifies that these regions are to be treated distinct and separates entity as distinguished from other regions. The effect of this notification was that there were to be two local areas in Uttar Pradesh, one comprising of the regions of Varanasi and Allahabad and the other of the other regions. IN this view Dr. S. B. Singh ceased to be Public Analyst to Government of the regions of Varanasi and Allahabad and he could not exercise jurisdiction within that local area. 8. LEARNED counsel for the respondents contended that the applicant could not take this objection in this revision for the first time. No doubt such an objection was not taken in the trial Court as well as in the appellate Court. It has also not been taken in the grounds of revision in this Court. However, in view of the authority reported in S. C. Prevention of Food Adulteration and Drug Cases 474, Deepak Sarkar v. State of Bihar, such an objection can be allowed to be taken for the first time in revision. In that case the Supreme Court remanded the case to the High Court to determine the objection of the like. It may be further pointed out in the present case, although the objection was not taken in the trial court as well as in the appellate court but the applicant apprised the trial Court of the facts having bearing on this objection. In cross- examination of the Food Inspector R. N. Saxena, it was elicited that he was aware that Varanasi was separate local area and that Kanpur district was within the jurisdiction of the Public Analyst at Varansi and that at the relevant time Sri Garg was the Public Analyst of Kanpur region. Therefore, it is not necessary to make any enquiry regarding facts having bearing on this point. It is, therefore, only proper that this objection should be taken notice of. The report of the Public Analyst being without any authority is not admissible in evidence and the applicant could not be convicted on its basis. The revision is, therefore, allowed. The conviction of the applicant for the offence u/S. 16 read with Section 7 of the Prevention of Food Adulteration Act and sentence awarded to him thereunder are set aside. He is on bail to which he need not surrender. The revision is, therefore, allowed. The conviction of the applicant for the offence u/S. 16 read with Section 7 of the Prevention of Food Adulteration Act and sentence awarded to him thereunder are set aside. He is on bail to which he need not surrender. His bail-bonds are cancelled and sureties are discharged. The amount of fine, if paid shall be refunded to the applicant. Revision allowed.