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1999 DIGILAW 829 (RAJ)

Babulal v. State of Rajasthan

1999-07-08

S.C.MITAL

body1999
Honble MITAL, J.–This revision petition is directed against the judgment dated 22.6.99 passed by learned Addl. Sessions Judge, No.3 Udaipur whereby the judgment of conviction and sentence passed by Chief Judicial Magistrate dated 30.6.98 was confirmed. The petitioner was sentenced to six months rigorous imprisonment and Rs. 1,000/-fine, in default to further undergo fifteen days rigorous imprisonment u/S. 7 read with 16 Prevention of Food Adulteration Act, 1954 (hereinafter referred as `the Act) and three months rigorous imprisonment, fine of Rs 500/-in default to further undergo ten days rigorous imprisonment for the offence u/S. 16 (1) (A) (2) of the Act read with Rule 50 (1) Prevention of Food Adulteration Rules, 1955 (hereinafter referred as `the Rules) (2). Sample of milk was taken from the petitioner on 19.9.93. The complaint was filed on 16.9.94. The petitioner moved an application on 13.4.94 to send the second sample for analysis by Central Food Laboratory. This application was allowed and the second sample was obtained from local authority and it was sent to Central Food Laboratory for analysis on 26.9.95 by trial court. On considering the evidence of both the parties and report of the Central Food Laboratory, the learned trial court recorded the conviction as stated above. It was also proved that the petitioner was indulging in sale of milk without having any license required under Rule 50 of the Prevention of Food Adulteration Act, 1955. (3). The learned Public Prosecutor has strenuously argued that while sending the second sample to the Central Food Laboratory, the mandatory provisions of Sec. 13 (2) and Rule 4 of the ` rules were not complied with. Therefore, the report submitted by Central Food Laboratory cannot be used as an evidence against the petitioner. In view of this, the prosecution has failed to prove the case beyond reasonable doubt. (4). Sec.13(2) (A) provides that when an application is made to the Court under Sub-section 2 then the local authority shall forward the sample kept by it to the Court on requisition, within a period of five days. It is further provided under Sec. 13 (2) (B) that on receipt of the sample from the local authority, the Court shall take following steps, before sending the sample to Central Food Laboratory. 1) The Court shall ascertain that the mark and seal or fastening are intact. It is further provided under Sec. 13 (2) (B) that on receipt of the sample from the local authority, the Court shall take following steps, before sending the sample to Central Food Laboratory. 1) The Court shall ascertain that the mark and seal or fastening are intact. 2) The signature or thumb-impression as the case may be, is not tampered with. 3) The sample shall be despatched under its own seal to the Director of the Central Food Laboratory. (5). Part II of the Rules, makes provision for the testing of the sample by the Central Food Laboratory. It has been laid down in rule 4 that the sample shall be sent through a messenger or by registered post in a sealed a packet with a memorandum in Form I in an outer cover addressed to the Director. Secondly, the container as well as the outer covering of the packet shall be marked with a distinguishing number. Thirdly, a copy of the memorandum and specimen impression of the seal used to seal the container as well as the cover shall be separately sent to the Director by registered post. The duty has been cast on the Director or authorised Officer of the Central Food Laboratory to compare the seals on the container and outer cover with specimen seal received separately and note shall be given regarding the conditions of the seals. (6). In the instant case, it has not been proved that a distinguishing number was marked on the container and the outer cover by the Court before sending the sample to the Central Food Laboratory. It is not also established that a copy of the memorandum and specimen impression of the seal put on the container and the outer cover was separately sent to the Director. A perusal of the report of the Central Food Laboratory indicates that a sample bearing No. AAA-908 was received. This number was marked by the Food Inspector and it does not find mention of any distinguishing number, if any marked on the Cover. The letter addressed to The Chief Judicial Magistrate by Director, Central Food Laboratory, as well as the analysis report Form 2 also do not mention the description of the specimen seal which was to be sent separately by registered post. Thus, it is evident that compliance of Rule 4 of 1955 is not proved in this case. (7). The letter addressed to The Chief Judicial Magistrate by Director, Central Food Laboratory, as well as the analysis report Form 2 also do not mention the description of the specimen seal which was to be sent separately by registered post. Thus, it is evident that compliance of Rule 4 of 1955 is not proved in this case. (7). On 26.4.95, a note had been given on the ordersheet that the sample of cows milk No. AAA-908 was sent to Central Food Laboratory by registered parcel. It is further noted that Form No.1, challan of depositing Rs.40/-and a forwarding letter has been sent by post. The learned counsel for the petitioner has vehemently contended that a note should have been prepared by the Court to show that mandatory provisions of Sec. 13 (2) were complied with. The note appended on the order-sheet does not fulfil the requirement and does not in any manner lead to even an inference that the mandatory provisions u/s 13 (2) have been complied with by the Court before sending the sample to the Central Food Laboratory. I agree with the learned counsel for the petitioner. It is appropriate and necessary that the note should be prepared by the Court mentioning therein the compliance of the mandatory provision of Sub-section 2 (a) and 2 (b) of Sec. 13 of the Act. It should be observed in the note clearly that the sample was examined by the Court, that the mark and seal of fastening as per the provisions of Sec. 11(1) Clause B were intact, and the signature or thumb impression were not tampered with. It should also be specifically mentioned that the sample is being sent under own seal and impression of that seal should also be put on the note. This is required to be sent separately by registered post also. In the absence of such procedure or any note, it is not possible to hold that the Court has complied with mandatory provision of sub-section 13(2)(B) of the Act. (8). In view of the above discussion, I hold that while sending the sample to the Central Food Laboratory, all the necessary steps have not been followed and the provisions of Sec. 13 (2) (b) of `the Act and Rule 4 of `the rules have not been complied with. (8). In view of the above discussion, I hold that while sending the sample to the Central Food Laboratory, all the necessary steps have not been followed and the provisions of Sec. 13 (2) (b) of `the Act and Rule 4 of `the rules have not been complied with. Therefore, the analysis report of the Central Food Laboratory cannot be considered conclusive proof of the alleged adulteration of the milk against the petitioner. In other words, the analysis report of the Central Food Laboratory cannot be the basis of conviction for the alleged offence against the petitioner. Hence, the offence u/s.7 read with 16 of `the Act is not proved and the impugned judgment of conviction for this offence is liable to be set aside on this score alone. (9). I have perused the statement of the Food Inspector Indrajit Singh and other witnesses. I have also gone through the defence evidence led by the petitioner. The statement of Indrajit Singh is reliable to hold that the petitioner was engaged in sale of milk without having license under Rule 50 of `the Rules and this charge is proved against the petitioner. The petitioner is a first offender and has suffered imprisonment for about 18 days. His offence is punishable by imprisonment which may extend to three months under Sec. 16 (1) Proviso II. It is contended by the learned counsel that the sentence may be reduced to the already undergone period. I am inclined to agree with this contention in view of the facts and circumstances of the case. (10). In the result, the petition is partly allowed. The conviction of the petitioner for the offence u/s 7 read with 16 Prevention of Food Adulteration Act, 1954 and sentence is hereby set aside. His conviction under Rule 50 of the Prevention of Food Adulteration Rules, 1955 read with 16, Prevention of Food Adulteration Act, 1954 is hereby maintained. However, the sentence of imprisonment of three months is reduced to the already undergone period, but the sentence of fine of Rs. 500/-(five hundred only) and in default of fine the imprisonment shall remain the same. The petitioner shall be released forthwith as soon as the fine is deposited by him in the Central Jail or Trial Court.