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1982 DIGILAW 947 (ALL)

Babu Lal v. State of U. P

1982-08-17

V.N.MISRA

body1982
JUDGMENT V.N. Misra, J. - This is an application in revision by Babu Lal against the judgment and order dated 6.6.1981 of Sri U.S. Trivedi IX Additional Sessions Judge, Kanpur, by means of which he dismissed Criminal Appeal No. 204/M of 1980 and upheld the conviction and the sentence of the applicant as recorded by Sri. S.K.I. Naqvi, Metropolitan Magistrate, Kanpur. 2. Briefly stated the facts involved in this case are that on 23-8-1977 at about 11 a.m. Sri R.K. Gupta, Food Inspector, Kanpur, Nagar Mahapalika, found the applicant selling mixed milk of cow and buffalo near Kailash Bhawan, premises No. 72/2, Shutarkhana, Kanpur. The Food Inspector disclosed his identity and obtained 660 mis. sample of milk and paid its price Rs. 1.69p. and obtained a receipt. He also gave a notice in Form VI to the applicant intimating that he intended to send this sample for analysis. He divided the sample in three parts and sealed it in three clean phials after adding form a line. One of these when sent to the Public Analyst was found to contain 5.7 per cent milk fat and 7.8 per sent non-fatty solids. Thus, the sample was deficient in non-fatty solids and was found adulterated. On the application of the applicant this sample was then sent to the Director, Central Food Laboratory, Calcutta and he too found that non-fatty solids in this milk were only 8.13 per cent and since the standard prescribed for non-fatty solids in such milk is 8.5 per cent it was found deficient in non-fatty solids and adulterated. The applicant was, therefore, prosecuted and has been convicted as aforesaid. 3. In this case sample of milk was taken on 23.8.1977. It was sent to the Public Analyst on 27.8.1977; three day after that impression of the seal was sent to him on 30.8.1977 and his report was received on 14.10.1977. This report was sent to the applicant was required by section 13(2) of the Act and on 9.8.1979 the applicant made an application to the Magistrate that the other phial of the sample milk taken be sent to the Director Central Food Laboratory, Calcutta. On 6.9.1979 the other phial of the sample was received from the office of the C.M O and it was sent to the Director, Central Food Laboratory. On 6.9.1979 the other phial of the sample was received from the office of the C.M O and it was sent to the Director, Central Food Laboratory. On 31.10 1979 the report of the Director was received that the sample had completely leaked out and he asked for the third phials of the sample, so that this milk could be analysed. On 6.12.1979 the third phial was also sent to the Director, Central Food Laboratory and then he found that the non-fatty solids in this milk were only 8.13%. Since this was short of 8.5 percent which is the standard prescribed for non-fatty solids, therefore, the milk was found adulterated by him also, 4. It was urged by the learned counsel for the applicant that the Director, Central Food Laboratory, compared the seals of the container and the outer cover with the specimen seal sent to him and found that the seals on the inner cover did not tally with the impression seal. When the third phial of the sample milk was sent to the Director he compared the seals and said that seals on the inner cover were in tact, but he did not say whether they tallied with the impression seal or not. Since, however, the Magistrate had only sent specimen of his seal, therefore, it was obvious that this specimen could tally only with the seals on the outer cover and could not tally with the seals on the inner container which had milk. It was, however, argued that under rule 14 of the rules framed under the Act the Magistrate should have sent specimen of both his seals and the seal of the C.M.O. and since both these seals were not sent it cannot be said which sample was sent to the Director, Central Food Laboratory and whether it was sample of the same milk which was drawn from the applicant. 5. Then, this sample was examined more than two years after it was taken and it was urged that this delay in examination of the sample was fatal because the milk must have necessarily got spoilt during this period. There is, however, no evidence to show that the milk had got spoilt and, in fact, in both the reports of the expert it was said that it was fit for analysis. This point, therefore, does not prevail. 6. There is, however, no evidence to show that the milk had got spoilt and, in fact, in both the reports of the expert it was said that it was fit for analysis. This point, therefore, does not prevail. 6. As already stated the sample of this milk was drawn on 23.8.1977 and it was only by means of notification No. GSR 55 (E) dated 31.1.1979 that the standard for mixed milk was prescribed. Since there was no standard for such mixed milk at the time when the sample was drawn, therefore, it could not be said that the sample was adulterated on that date and, therefore, the applicant could not be convicted. 7. This revision is, therefore, allowed. The conviction and sentence of the applicant are hereby set aside. He is on bail. He need not surrender and his bail bonds are hereby discharged. Fine, if paid, shall be refunded to him.