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Madhya Pradesh High Court · body

2003 DIGILAW 12 (MP)

Asharam v. State of M. P.

2003-01-02

A.K.SHRIVASTAVA

body2003
JUDGMENT The applicant has been convicted for the offence punishable under section 7(1)(a) read with section 16(1)(a)(i) of the Prevention of Food Adulteration Act, 1954 (here in after referred to as the 'Act'). In brief the case of the prosecution is that on 22.7.1984, Food Inspector Shri R.P. Soni (PW 3) found the applicant selling milk and he puchased the sample of the mixed milk of cow and she-buffalo. After completing the necessary formalities and procedure as required under the Prevention of Food Adulteration Rules, 1955 (here in after referred to as 'the Rules'), the sample of the milk was sent to the Chemical Analyst which was found to be adulterated and thus after having served the notice to the applicant, he was prosecuted. The learned trial Court framed charge under section 7(1)(a) read with section 16(1)(a) (i) of the Act and Rule 50 of the Rules. The applicant abjured the guilt. So as to bring home the charges, the prosecution examined as many as 3 witnesses. The star witness is Food Inspector Shri R.P. Soni (PW 3). The learned Judge after appreciating the oral and documentary evidence placed on record held the charges to be proved and hence passed the judgment of coviction and order of sentence of six months' rigorous imprisonment and fine Rs. 1,000/- and in default thereof to suffer further two months rigorous imprisonment. Feeling aggrieved by the judgment of conviction and order of sentence, the applicant preferred an appeal before the learned Sessions Judge, Chhatarpur who partly allowed the appeal and acquitted the applicant from the offence punishable under Rule 50 of the Rules, however, his conviction under section 16( 1 )(a) of the Act was maintained. Thus, the applicant had a cause to prefer the revision before this Court. In this revision petition, Mr. L.N. Sakle, learned counsel for the applicant contended that there is non-compliance of the mandatory requirement of Rule 17(a) inasmuch as the milk was not sent immediately to Public Analyst as indicated in clause (a) of Rule 17 and before obtaining the sample, the milk was not stirred so as to make it homogeneous. According to the learned counsel, the learned Courts below had not taken into consideration this legal aspect of the matter and as such the revision deserves to be allowed. According to the learned counsel, the learned Courts below had not taken into consideration this legal aspect of the matter and as such the revision deserves to be allowed. Shri Wakil Khan, learned Panel Lawyer for the State submits that there· is no infirmity in the judgment passed by the learned Sessions Judge and / therefore the revision deserves to be dismissed. After hearing the rival contentions of learned counsel for the parties, I am of the considered view that this revision petition deserves to be allowed. Before considering the rival contentions of the learned counsel for the parties, it will be relevant to mention Rule 17(a) which reads as under- "17. Manner of despatching containers of samples. -- The containers of the samples shall be despatched in the following manner, namely :-(a) the sealed container of one part of the sample for analysis and a memorandum in Form VII shall be sent in a sealed packet to the public analyst immediately but not later than the succeeding working day by any suitable means. " (emphasis supplied) According to clause (a) of Rule 17 it was incumbent to have sent the· sample immediately but not later the succeeding date by any suitable means. It is the case of prosecution that the sample was obtained on 22.7.1984 and the same was sent on 23.7.1984. Therefore, it has been argued by Mr. Wakil Khan, learned Panel Lawyer for the State that the requirement of Rule 17 has been complied with. Combatting the submission of Mr. Khan, it has been put forth by Shri L.N. Sakle, learned counsel for the applicant that, indeed, the sample was received in the office of Public Ahalyst at Bhopal on 26th July, 1984. Had the sample been sent on 23rd July, 1984 from Chhatarpur to Bhopal, it would have reached much earlier to 26.7.1984. I find there is force in this submission. It appears that the sample was not sent immediately otherwise it would have received in the office of Public Analyst at Bhopal much earlier to 26.7.1984. In this view of the matter, according to me, there is non-compliance of Rule 17(a) of the Rules. I find there is force in this submission. It appears that the sample was not sent immediately otherwise it would have received in the office of Public Analyst at Bhopal much earlier to 26.7.1984. In this view of the matter, according to me, there is non-compliance of Rule 17(a) of the Rules. In the case of Narmada v. State of M.P. 1994 (2) Vidhi Bhasvar 316 this Court while placing reliance upon the decision of the Apex Court in the case of State of Maharashtra v. Raj Karan (1989 All India Prevention of Food Adulteration Journal 12) has held that provisions of Rule 17 and 18 are mandatory and non-compliance thereof results in failure of prosecution. In this context, it will be profitable to refer another decision of this Court in Hiralal v. Food Inspector. Morena 1995 (2) Vidhi Bhasvar 84. In this view of the matter, it is held that the mandatory requirement of Rule 17(a) has not been complied with and therefore, the judgment of conviction passed by the Courts below cannot be sustained. The next submission of Mr. Sakle is that before obtaining the sample of milk, the same was not stirred so as to make it homogeneous. He has placed reliance on the decision of K. Harikumar v . Food Inspector 1995 Supp. (3) SCC 405, State of Himachal Pradesh v. Sher Khan 1998 CrLL.J. 563, State of Himachal Pradesh v. Madan Lal2000 CriLJ 4200, State of Rajasthan v. Kachab 1980 Crl. L.J. 894. In the Panchnama Ex. P-3 nowhere it has been mentioned that before obtaining the sample of milk, the same was stirred so as to make it homogeneous. In the memorandum of complaint also this fact does not find place. In the statement as well the Food Inspector Mr. R.P. Soni (PW 3) it has not come that before obtaining the sample of milk, the milk was stirred. Mr. Khan, learned Panel Lawyer for the State has vehemently argued that there is a categorical finding of the appellate Court in para 16 rejecting this plea of the applicant. According to me, in view of the decisions cited hereinabove, this argument has no force. According to the learned Sessions Judge, the applicant-accused should have asked this question in cross-examination to the Food Inspector. According to me, in view of the decisions cited hereinabove, this argument has no force. According to the learned Sessions Judge, the applicant-accused should have asked this question in cross-examination to the Food Inspector. In my opinion, it was for the prosecution to prove this fact, having failed to prove this fact it cannot be said that before taking the sample of milk, the same was stirred. Resultantly, the revision petition succeeds and is hereby allowed. The judgment and sentence convicting the applicant for the offence punishable under section 7(1) read with section 16(1)(a)(i) of the Act passed by Courts below is hereby set aside. The applicant is acquitted. He is on bail, his bail bonds are discharged.