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2003 DIGILAW 161 (MP)

Beni Prasad v. State of M. P.

2003-01-24

A.K.SHRIVASTAVA

body2003
JUDGMENT The applicant has been convicted for the offence punishable under sections 7(1) read with section 16(1) (a) (i) of the Prevention of Food Adulteration Act, 1954 (hereinafter referred to as the 'Act'). In brief, the case of prosecution is that on 18.6.1984, Food Inspector T.P. Tiwari (PW 1) took the sample of 'Jagni' oil from the applicant. The same was sent to the Public Analyst, in the report the sample of the oil was found to be sub-standard, as a result of which the applicant was prosecuted and the charge-sheet was filed. The learned Trial Judge framed charges for the offences punishable under section 7(1) read with section 16(1) (a) (i) of the Act. The applicant abjured the guilt. In order to bring home the charges, the prosecution examined as many as three witnesses, namely, T.P. Tiwari Food Inspector (PW 1), Ramesh Kumar (PW 2) and Sajjan Singh (PW 3). The witnesses Ramesh Kumar and Sajjan Singh are the witnesses of the 'Panchanama' (Ex. P-4). The learned trial Judge after appreciating the oral and documentary evidence came to the conclusion that the applicant did commit the offence under the said Act for which he was charged, as a result of which convicted him under the said offence and passed the sentence of six months rigorous imprisonment and fine of Rs. 1,500/-, in default, further simple imprisonment of three months. Feeling aggrieved by the said judgment of conviction and order of sentence, applicant preferred an appeal before the appellate Court which by the impugned judgment dismissed the appeal. Hence this revision. In this revision petition, Shri Satyendra Patel, learned counsel for the applicant submitted that before obtaining the sample of the oil, the same was not stirred so as to make it homogeneous. He has further contended that the sample was not sealed as per the provisions contemplated in the Rule 16(b) of the Prevention of Food Adulteration Rules, 1955 and therefore his conviction is bad in law. Per contra, Shri R.N. Yadav, learned Panel Lawyer for the State, has contended that the Courts below considered each and every aspect of the matter, their judgments are according to the law and this Court should not interfere in the findings rendered by the Courts below. Before appreciating the rival contentions of the parties, it would be relevant to refer the Rule 16, which reads as under: "16. Before appreciating the rival contentions of the parties, it would be relevant to refer the Rule 16, which reads as under: "16. Manner of packing and sealing the samples -- All samples of food sent for analysis shall be packed, fastened and sealed in the following manner namely: (a) The stopper shall first be securely fastened so as to prevent leakage of the contents in transit. (b) The bottle, jar or other container shall then be completely wrapped in fairly strong thick paper. The ends of the paper shall be neatly folded in and affixed by means of gum or other adhesive." (c) xxx xxx xxx (d) xxx xxx xxx" (emphasis supplied) Taking into consideration the first point emphasised by Shri Satyendra Patel, learned counsel for the applicant, that before obtaining the sample of the oil, the same was not stirred so as to make it homogeneous. In this context, he has drawn my attention to the 'Panchanama' (Ex. P-4), the testimony of the Food Inspector T.P. Tiwari and the memo of complaint itself. Nowhere in the 'Panchanama' or in the complaint, it has been so mentioned that before obtaining the sample, the same was stirred so as to make it homogeneous. The Food Inspector has not deposed this fact even in his testimony. Thus, it is not proved that before obtaining the sample of the oil, the same was stirred so as to make it homogeneous. To bolster his contention, the learned counsel for the applicant has placed reliance upon the case of Suresh Kumar v. State of Haryana 1991 FAJ 546 in which it has been held that if the sample is collected without thoroughly stirring the bulk and delinquent is convicted then his conviction is bad in law. In the present case also the same principle would be applicable and therefore the applicant cannot be held guilty of the offence. Regarding the second submission, it shall be apposite to refer the case of State v. Nanu Ram 2000 FAJ 34 wherein the Food Inspector deposed that the bottles were cleaned, but, did not say that they were dry and for this reason, by giving the benefit of doubt to the accused, he was acquitted. Regarding the second submission, it shall be apposite to refer the case of State v. Nanu Ram 2000 FAJ 34 wherein the Food Inspector deposed that the bottles were cleaned, but, did not say that they were dry and for this reason, by giving the benefit of doubt to the accused, he was acquitted. If the ratio of the said case is tested on the anvil of the present factual scenario, it would reveal that nowhere the Food Inspector has said that after collecting the sample, the same was completely wrapped in fairly strong thick paper. In this view of the matter, the mandatory requirement of the Rule 16(b) has not been complied with. Thus, the conviction of the applicant is not in accordance to the law. The learned Courts below erred in law by overlooking this material aspect of the case and the provisions of law and therefore, the conviction of the applicant cannot be sustained. In the result, the revision petition succeeds and is hereby allowed. The conviction of the applicant under section 7(1) read with section 16(1) (a) (i) of the Act is hereby set-aside. The applicant is on bail, his bail bonds are discharged. The amount of fine Rs. 1,500/-, if deposited, shall be refunded to him.