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2012 DIGILAW 4 (CHH)

DADEKAR YADU v. STATE OF M. P.

2012-01-04

SUNIL KUMAR SINHA

body2012
ORDER 1. This revision is directed against the judgment dated 7.2.1997 passed in Criminal Appeal No.38/1994 by the Additional Session Judge, Baloda Bazar, District Raipur, whereby the judgment and order dated 4th April, 1994 passed in Criminal Case No. 147/1983 by the Additional Chief Judicial Magistrate, Baloda Bazar convicting the applicant u/s 7 (i) read with Section 16 (1) (a) (i) of the Prevention of Food Adulteration Act, 1954 and sentencing him to S.I. for 6 months and to pay fine of Rs.1,000/- with default sentence of S.I. for 3 months, has been upheld and the appeal of the applicant has been dismissed. 2. The facts, briefly stated, are as under: The applicant was a milk-vendor. On 18.12.1982 at about 9.00 a.m. a test purchase of the milk carried by him for sale was made by Food Inspector, S.C. Nema (PW-l). He completed the formalities and prepared Panchnama thereof. The sample of milk was divided into three parts and one part was sent to Public Analyst. Public Analyst in his report found that the milk was of substandard quality therefore, the chargesheet was filed. The learned Magistrate believing the testimonies of Food Inspector, S.C. Nema (PW-l) and Govindlal Joshi (PW-2) and admitting the report of Public Analyst held that the milk purchased from the applicant was adulterated and the applicant was liable for punishment u/s 7 (i) read with Section 16 (1) (a) (i) of the Prevention of Food Adulteration Act, 1954. The above judgment has been affirmed in appeal. 3. Mr. Raja Sharma, learned counsel appearing on behalf of the applicant, argued that there is no evidence of compliance of Rules 17 & 18 of the Prevention of Food Adulteration Rules, 1955 (hereinafter referred to as the 'Rules'); these Rules are mandatory; the prosecution must establish dispatch of the documents referred to in Rule 18 separately which have not been established in this matter. He further argued that before obtaining the sample of the milk, the same was not stirred so as to make it homogeneous; therefore, it was not a true sample and Public Analyst's report in the above facts and circumstances will not be read against the applicant. He relied on State of Maharashtra Vs. Rajkaran 1987(Supp) SCC 183; Brandavan Vs. M.P. State and another 2005(5) MPHT 495; Beni Prasad Vs. State of M.P. 2003(5) MPHT 64; Nagar Palika Parishad, Bhind Vs. He relied on State of Maharashtra Vs. Rajkaran 1987(Supp) SCC 183; Brandavan Vs. M.P. State and another 2005(5) MPHT 495; Beni Prasad Vs. State of M.P. 2003(5) MPHT 64; Nagar Palika Parishad, Bhind Vs. Manik Chand Jain 1998(I) MPWN 60 & Ghansu Vs. State of M.P. 1999(II) MPWN 17 4. On the other hand, Mr. Arvind Dubey learned Panel Lawyer appearing on behalf of the State, opposed these arguments and supported the judgment and order passed by the courts below. 5. I have heard learned counsel for the parties at length and have also perused the records of the courts below. 6. In Rajkaran 1987(Supp) SCC 183 (supra), the copy of the memorandum and specimen impression of the seal used to seal the packet referred to in Rule 17 of the aforesaid Rules were sent by registered post to the Public Analyst. However no postal receipt of dispatch by the registered post could be produced. Therefore, it was held that the prosecution has failed to establish that the documents referred to in Rule 18 had been separately sent and thus there was non-compliance of Rules 17 & 18 of the aforesaid Rules. It was held that the above Rules are mandatory and there is a purpose behind this requirement and when there is non-compliance, the prosecution is to fail. 7. In the instant case, S.C. Nema (PW-l) deposed in para-4 of his evidence that on 20.12.1982, Form-7 along with sample was sent to Public Analyst by registered parcel and the office copy (Ex.-P/6) was retained. Sample of seal was also sent to Public Analyst and office copy (Ex.-P/7) was retained. Though he claimed to send these documents by registered parcel, but no postal receipts thereof were produced before the trial Court. Rule 18 of the Rules deals with the procedure for sending a sample to the Public Analyst. Noncompliance of the provision of this Rule adversely affects the credibility of the Public Analyst report. According to Rule 18 a copy of the memorandum and specimen impression of the seal used to seal the packet has to be sent in a sealed packet separately to the Public Analyst by any suitable means. Here the prosecution claimed that the samples were sent by registered parcel, but no postal receipts thereof were produced. Only copies of the covering memos in Form 7 have been filed. Here the prosecution claimed that the samples were sent by registered parcel, but no postal receipts thereof were produced. Only copies of the covering memos in Form 7 have been filed. Therefore, the claim of sending both the items separately by registered parcel, in absence of production of postal receipts, was not proved. If the above 2 items were sent separately through above mode, it was incumbent upon the prosecution to prove it in absence of which evidentiary value of the Public Analyst report based on the sample allegedly collected and sent by Food Inspector becomes shadowed. The purpose behind Rule 18 is to prevent possibility of tempering by third person in whose hands the sample as well as specimen seal are given. Therefore, the prosecution has failed to establish dispatch of the materials referred to in Rule 18 separately by registered parcel as claimed by them thereby creating a shadow on the report of Public Analyst. 8. It was also contended that before taking the sample of milk, the same was not stirred so as to make it homogeneous. Mr. Sharma placing reliance of Brandavan 2005(5) MPHT 495 (supra) argued that in Panchnama (Ex.-P/5) there is no mention about taking the sample by stirring. The learned Panel Lawyer has argued that the Food Inspector (PW-1), in Para-3 of his evidence, deposed that the milk was purchased after stirring it. Although in the Court evidence the Food Inspector deposed about stirring before purchase, but this was not at all mentioned in Panchnama (Ex.-P/5). Purchasing, preparation of Panchnama relating to manner of purchasing; making seizure and sealing etc., are foundation of the prosecution under the Prevention of Food Adulteration Act, 1954. In the instant case, the Panchnama does not reflect about stirring of the milk before its purchase. Merely on the oral evidence of the Food Inspector which was recorded after about 7 ½ years, it cannot be relied satisfactorily that the milk was stirred before purchase/taking sample. Thus, the sample in the instant case was not the representative sample and the benefit has to go to the applicant. 9. For the foregoing reasons, the revision is allowed. The conviction and sentence awarded to the applicant u/s 7 (i) read with Section 16 (1) (a) (i) of the Prevention of Food Adulteration Act, 1954 are set-aside. The applicant is acquitted of the charges framed against him. Revision Allowed.