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2003 DIGILAW 201 (RAJ)

State of Rajasthan v. Fakir Mohammad

2003-02-07

H.R.PANWAR

body2003
JUDGMENT 1. - This criminal appeal is directed against the judgment and order of acquittal dated 2.2.1987 passed by Chief Judicial Magistrate, Barmer (for short `the trial court') in Criminal Case No.315/1987, whereby the trial court did not find guilt of accused respondent and acquitted him for the offence under section 7/16 of the Prevention of Food Adulteration Act, 1954 (for short 'the Act'). Aggrieved by the judgment of acquittal, the State has preferred this appeal. 2. Briefly stated facts to the extent they are relevant and necessary for decision of this appeal are that PW.4 P.C.Harsh. Food Inspector, Barmer, who was appointed vide order Ex.P/3, on 21.7.1984 at about 9.00 A.M., found accused-respondent Fakir Mohammad selling cow milk. He took sample of the milk weighing 660 ml. vide Ex.P/I and prepared Ex.P/2 Fard, a copy of which was given to the accused-respondent. The sample of milk was sent to Public Analyst, Public Health Laboratory, Jodhpur, Public Analyst vide its report dated 2.8.1984 opined that the sample does not conform to the prescribed standards of purity under the Prevention of Food Adulteration Rules, 1955 (for short `the Rules of 1995') and was found adulterated. The sample contained about 41% of added water. The Local Health Authority and Chief Medical and Health Officer.Barmer vide Ex.P/3 order dated 14.8.1984 issued consent to prosecute the accused-respondent and authorised PW.4 P.C.Harsh, Food Inspector, Barmer to file a complaint before the competent court. The complaint was filed in the Court of Chief Judicial Magistrate, Barmer. Accused-respondent pleaded not guilty and preferred for the trial oft he case. 3. Prosecution had produced PW. 1 Jethmal, PW.2 Kishna Ram, PW.3 Dr.Kishore Chand Bafna and PW.4 P.C. Harsh, Food Inspector. Statement of accused-respondent was recorded under section 313 Cr.P.C. He denied the prosecution evidence against him. He himself appeared as DW.I and stated that the entire prosecution case is false. He used to run a cycle shop and he had nothing to do with selling of the milk. He further stated that on the relevant date, neither he was selling the milk nor any sample was taken from him. 4. On appreciation of the evidence produced by the parties, the trial court came to the conclusion that the prosecution was failed to prove the case against the accused-respondent beyond reasonable doubt and accordingly, the accused-respondent was acquitted for the offence under section 7/16 of the Act. 4. On appreciation of the evidence produced by the parties, the trial court came to the conclusion that the prosecution was failed to prove the case against the accused-respondent beyond reasonable doubt and accordingly, the accused-respondent was acquitted for the offence under section 7/16 of the Act. Aggrieved by the judgment and order of acquittal, the State has filed the instant appeal. 5. I have heard learned Public Prosecutor for the State and the learned counsel for the accused-respondent. Perused the judgment impugned as well as the record of the trial court. 6. It is contended by the learned Public Prosecutor that the accused-respondent was found selling the cow milk to PW. 1 Jethmal. This fact has been established by PW.4 P.C.Harsh, Food Inspector. It is further contended that in the Public Analyst Report Ex.P/10, it is mentioned that the sample taken from accused-respondent did not conform to the prescribed standards of purity under the Rules of 1955 and was found adulterated. 7. Learned counsel for the respondent contended that the prosecution has failed to establish the case against the accused-respondent beyond reasonable doubt. It is also contended that on the face of record, it shows that the prosecution has not led any evidence to show that the container used for taking sample was dry and as such there is violation of Rule 14 of the Rules of 1955. It is further contended that prosecution has failed to establish that the Food Inspector stirred the milk by using a clean stick or the milk measurement. The prosecution is silent on this point and, therefore, non-compliance of Rule 14 of the Rules of 1955 vitiates the entire trial and prosecution case must fail on this count. 8. I have considered the rival submissions made at the Bar and carefully scanned and scrutinised the record of the trial court. 9. PW.I Jethmal to whom the accused-respondent alleged to have been found selling milk, has not supported the case of the prosecution. Not only this, he in clear terms stated that no sample was taken from the accused-respondent by PW.4 P.C.Harsh. Similar statement has been made by PW.2 Kishna Ram. Thus, taking of the sample from the accused-respondent has not been proved by the prosecution. PW.3 Dr. Not only this, he in clear terms stated that no sample was taken from the accused-respondent by PW.4 P.C.Harsh. Similar statement has been made by PW.2 Kishna Ram. Thus, taking of the sample from the accused-respondent has not been proved by the prosecution. PW.3 Dr. Kishore Chand Bafna, Local Health Authority and Chief Medical and Health Officer has proved Ex.P/3 by which he consented to institute the prosecution against the accused-respondent for the offence under the Act. PW.4 P.C.Harsh clearly admitted that milk measurement by which he took the sample did not reach to the bottom of the milk container. He admitted that at the time of taking sample he has not mentioned in Ex.P/I regarding stirring of the milk He also admitted that in "Mauka Fard" Ex.P/2, he has not mentioned that the sample of the milk was taken after stirring the whole milk he admitted that he has not mentioned in Fard Ex.P/I and Ex.P/2 regarding cleanliness of the container in which the sample of milk was taken. He admitted in clear terms that glass bottles used for taking sample of the milk were not cleaned. The accused-respondent in his statement under section 313 Cr.P.C. denied the prosecution case and stated that a false case has been instituted against him. Respondent further stated that he is running a cycle shop and he had nothing to do with selling of the milk. He also admitted that neither he was selling the milk nor the sample was taken from him. 10. Rule 14 of the Rules of 1955 provides that the sample of food for the purpose of analysis shall be taken in clean dry bottles or jars or in other suitable containers which shall be closed sufficiently tight to prevent leakage. From perusal of the whole statement of PW.4, it nowhere reveals that before taking sample of the milk, the Food Inspector cleaned the jars in which the sample was taken. PW.4 has admitted that he has not cleaned the bottles before taking sample. Thus, the bottles in which samples were taken, were not cleaned and dried. Thus, there is a clear violation of Rule 14 of the Rules of 1955. PW.4 has admitted that he has not cleaned the bottles before taking sample. Thus, the bottles in which samples were taken, were not cleaned and dried. Thus, there is a clear violation of Rule 14 of the Rules of 1955. It is the duty of the prosecution to prove by cogent evidence that the Food Inspector stirred the milk by using a clean stick or the milk measurement and stirred the milk clockwise and anti-clockwise in such a way that the milk at the bottom of the milk container was thoroughly mixed with the contents of the milk on its upper layer. In the instant case, PW.4 admitted that milk measurement used for stirring the milk did not reach to the bottom of the milk container. Thus, it cannot be said that before taking sample, the milk was stirred clockwise and anti-clockwise in such a way that the milk at the bottom was thoroughly mixed with the milk contents on its upper layer. Thus, non-compliance of Rule 14 of the Rules of 1955 vitiates the entire trial. The burden is on prosecution to prove that the bottles in which the sample was taken were dry and clean. In the instant case, the prosecution has failed to prove this aspect of the matter. On appreciation of the evidence, the trial court reached to the conclusion that the prosecution has failed to prove the case against the accused-respondent beyond reasonable doubt. 11. On careful scrutiny and having considered the entire material on record, I am of the view that the prosecution has failed to establish the case against the accused-respondent. In this view of the matter, I find no error in the judgment and order of acquittal recorded by the trial court. 12. In view of the aforesaid discussion, I find no merit in this State appeal. Accordingly, it fails and is dismissed.Appeal dismissed. *******