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2009 DIGILAW 2440 (ALL)

LAKHAN SINGH v. STATE OF U. P.

2009-07-02

SUBHASH CHANDRA AGARWAL

body2009
JUDGMENT Hon’ble Subhash Chandra Agarwal, J.—The revisionist Lakhan Singh was tried by Judicial Magistrate IInd (Economic Offences), Jhansi for the offence under Section 7/16 of the Prevention of Food Adulteration Act, 1954 (hereinafter referred to as the “Act”) vide criminal case No. 1038/1988, State v. Lakhan Singh. Findings the prosecution case proved against the revisionist, he was convicted under Section 7/16 of the Act and sentenced for 6 months R.I. and to pay fine of Rs. 1,000/- and in default of payment of fine to undergo 3 months further R.I. vide judgment and order dated 4.6.1988. Aggrieved by his conviction, the revisionist preferred an appeal before the Sessions Judge, Jhansi, which was transferred to the Court of IVth Additional Sessions Judge for disposal as criminal appeal No. 138 of 1988. The appeal preferred by the revisionist was dismissed and his conviction and sentence recorded by the Trial Court, was affirmed by the IVth Additional Sessions Judge, Jhansi vide his judgment dated 21.5.1990. Against the said conviction, the revisionist has filed the above noted revision in this Court, which was admitted on 26.5.1990. The revisionist was granted bail and the realisation of fine awarded was also stayed. 2. Prosecution case against the revisionist was that on 9.5.1984, the sample of milk was taken by the Food Inspector Sri R.P. Lakshkar at 7.30 a.m. within the area of Primary Health Centre, Chirgaon, Jhansi, while the revisionist was found selling and carrying about 15 litres of milk in two canes. Food Inspector purchased 660 ml. of milk from the revisionist after paying Rs. 1.65 as it’s price. A notice was also given in form 6. The milk was divided in three equal parts and was filled in clean and empty phials. Formalin was added as preservative and bottles were sealed as per rules. One phial of the sample was sent to Public Analyst, Lucknow. The report of the Public Analyst dated 15.6.1984 found the sample to be adulterated as the same was deficient up to 15% in milk fat and 30% in non-fatty solids. This report is Ext. Ka-6. After obtaining sanction Ext. Ka-8 from the Chief Medical Officer, Jhansi dated 21.9.1984, the Food Inspector filed the complaint, on the basis of which, the revisionist/accused Lakhan Singh was summoned and tried. This report is Ext. Ka-6. After obtaining sanction Ext. Ka-8 from the Chief Medical Officer, Jhansi dated 21.9.1984, the Food Inspector filed the complaint, on the basis of which, the revisionist/accused Lakhan Singh was summoned and tried. During trial, on the application of the accused another phial of the sample was sent to the Director Central Food Laboratory, Calcutta who vide his report dated 28.5.1985 Ext. Ka-10 also found the sample of milk to be adulterated. The milk fat and non-fatty solids in the sample were found to be 4.6% and 6.3% respectively which did not conform to the prescribed standard. The revisionist was ultimately convicted as aforesaid. His appeal was also dismissed culminating in the present revision. 3. Heard Sri A.R.B. Kher, Advocate for the revisionist and Sri R.S. Tiwari, AGA and Sri S.D. Tiwari, AGA appearing for the State and perused the Lower Court’s record. 4. It is submitted by the learned counsel for the revisionist that the Food Inspector did not enquire from the revisionist as to which animal did the milk belong and, therefore, the standard prescribed for Buffalo’s milk should not have been applied. It was further submitted that the Food Inspector did not make any effort to procure the presence of independent witnesses at the time of taking sample and thus violated the provisions of Section 10(7) of the Act and lastly it was submitted that there being difference in the report of Public Analyst and Central Food Laboratory, Calcutta, the benefit of doubt should be given to the accused. 5. Per contra learned A.G.A. submitted that the Food Inspector tried to take independent witnesses before taking sample, but no person was willing to be a witness and, therefore, there was sufficient compliance of Section 10(7) of the Act. It was further submitted that the Food Inspector had inquired from the accused about the nature of milk but the accused replied that he did not know as to which animal did the milk belong and, therefore, standard prescribed for buffalo’s milk was rightly applied. It was further submitted that the report of Director Central Food Laboratory supersedes report of public analyst and is the final authority regarding the contents of the sample. 6. The complainant Sri R.P. Lakshkar, Food Inspector had specifically stated that at the time of taking sample, 3-4 persons were present who were asked to be a witness, but they declined. It was further submitted that the report of Director Central Food Laboratory supersedes report of public analyst and is the final authority regarding the contents of the sample. 6. The complainant Sri R.P. Lakshkar, Food Inspector had specifically stated that at the time of taking sample, 3-4 persons were present who were asked to be a witness, but they declined. I have no reason to disbelieve this statement of the Food Inspector and thus there is sufficient compliance of Section 10 (7) of the Act. 7. Regarding the second submission, I find that the Food Inspector R.P. Lakshkar has specifically mentioned in the complainant that he asked the accused as to which animal did the milk belong but the accused expressed his ignorance. At the time of selling the milk, it was incumbent on the accused to disclose the nature of milk as to whether the milk belong to a Buffalo, Cow or Goat or was mixed milk, but at the time of taking sample, the revisionist chose to kept mum. As far as non-fatty solid are concerned, the Director Central Food Laboratory found the same to be only 6.3% while as per the standard prescribed for buffalo’s milk, it should be minimum 9% and for Cow’s milk 8.5% and Goat’s or Sheep’s milk, 9% and for mixed milk, non-fatty solids must not be less than 8.5%. Thus whichever standard is applied, be that of Buffalo’s milk, Cow’s milk, Sheep’s milk or mixed milk, non-fatty solids were less than the minimum prescribed standard and thus the sample of milk taken by the Food Inspector was adulterated and no benefit can be given to the revisionist on this account. 8. The last submission made by the learned counsel for the revisionist regarding difference in the reports of public analyst and the Director Central Food Laboratory is also without substance. It is established law that once the sample has been analysed by the Central Food Laboratory, the report of the Director Central Food Laboratory supersedes the report of public analyst and thereafter the report of public analyst cannot be looked into and the report of Director Central Food Laboratory is final which has found the milk to be adulterated. 9. I find no force in any of the submissions made by the learned counsel for the Revisionist. The revision has no force and is liable to be dismissed. 10. 9. I find no force in any of the submissions made by the learned counsel for the Revisionist. The revision has no force and is liable to be dismissed. 10. This revision is dismissed. The conviction of the revisionist under Section 7/16 of the Prevention of Food Adulteration Act and the sentence awarded to him by the Magistrate and confirmed by the Sessions Judge are maintained. His bail bond and sureties bond are cancelled. Let the revisionist be arrested to serve out the sentence awarded to him. 11. Let the copy of this judgment along with Lower Court’s record be sent to the Court concerned for compliance. Compliance report be submitted to this Court within two months. ————