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Allahabad High Court · body

2014 DIGILAW 2070 (ALL)

SHANKER LAL SHARMA v. STATE OF U. P.

2014-07-15

RANJANA PANDYA

body2014
JUDGMENT Hon’ble Mrs. Ran.jana Pandya, J.—Case called out in the revised list. Heard learned counsel for the revisionist and learned A.G.A. This revision has been brought against the judgment and order dated 28.1.1987 passed by 3rd Additional Sessions Judge, Ghaziabad in Criminal Appeal No. 209/1985, dismissing the appeal of the applicant and confirming the conviction and sentence passed by the Judicial Magistrate in Complaint Case No. 2285/1983 on 19.10.1985 convicting the revisionist under Section 7/16 of the Prevention of Food Adulteration Act and sentencing him to six months R.I. and a fine of Rs. 1000/- in default further R.I. for two months is being preferred. 2. Brief facts of the case are that the Food Inspector Jeet Singh submitted a complaint before the trial Court with the allegation that on 30.12.1982 at 11:00 A.M., the revisionist on the way to Gyaspur within the limits of police station Murad Nagar was taking milk for sale. He did not have any licence for the same. The Food Inspector purchased 660 ml. of milk after paying Rs. 1.30. The sample was filled in three bottles and was sealed. The accused was given notice at the spot and given receipt. When the sample was analysed the Analyst found the milk to be adulterated. 3. Charges against the accused was framed under Section 7/16 of Prevention of Food Adulteration Act. The accused denied the charge and claimed the trial. The prosecution examined as PW-1 Jeet Singh and PW-2 Kutubuddin, whereas the revisionist examined DW-1 Prabhu Dayal Tyagi as defence witness. Learned lower Court after perusal of the evidence found the accused Shanker Lal Sharma guilty and convicted him to six months R.I. and a fine of Rs. 1000/- with default in question. Feeling aggrieved the accused filed Criminal Appeal No. 209/1985 which was dismissed and the conviction was upheld. 4. Feeling aggrieved the revisionist has preferred the present revision. In this case 28% non fatty solids were found deficient in the milk. It has been argued by the counsel for the revisionist that the trial Court has not evaluated the evidence on record properly and has also argued that the sample of milk was taken without stirring the milk and thus the sample was improper. In this case 28% non fatty solids were found deficient in the milk. It has been argued by the counsel for the revisionist that the trial Court has not evaluated the evidence on record properly and has also argued that the sample of milk was taken without stirring the milk and thus the sample was improper. He has further argued that the compliance of Section 10 Sub Clause (2) and Section 13 Sub Clause (2) were not done and the provisions of Rules 17 and 18 of the Food Adulteration Act should be taken into account. 5. So far as the compliance of provisions of Section 10(7) and Rules 17 and 18 of the Act are concerned, they were strictly adhered to and nothing could be pointed out. So far as taking the milk without churning. In that regard the decision given by the Apex Court in the case of Food Inspector Municipal Corporation, Baroda v. M.R. Sharma, AIR 1983 SC 176 , has also been referred wherein it was held that: “We are conscious of the fact that in milk and milk preparations including crud, it is distinctly possible that the fat settles on the top in order to find out whether the milk or its preparation such as curd has the prescribed content, the sample must be homogeneous and representative so that the Analyst can furnish reliable proof of the nature and content of the articles of food under analysis.” 6. Identical view was also taken by the Apex Court in the case of Nagar Swasthya Adhikari Nagar Mahapalika Allahabad v. Asharafi Lal Yadav, 1985 ALJ 924 and observed that: “There is no evidence on the record to show that any churning was done before taking sample. Identical view was also taken by the Apex Court in the case of Nagar Swasthya Adhikari Nagar Mahapalika Allahabad v. Asharafi Lal Yadav, 1985 ALJ 924 and observed that: “There is no evidence on the record to show that any churning was done before taking sample. Though there is nothing in the Act or the Rules which prescribes that churning must be done by some instrument or by hand, it has received a judicial recognition in the above mentioned case that is milk and milk preparations it is distinctly possible that the fat settles on the top and in order to find out whether the milk or its preparations such as curd has prescribed contents, the sample must be homogeneous and representative, so that the Analyst can furnish a reliable proof of nature and content of the article of food under Analyst.” and also in the case of K. Hari Kumar v. Food Inspector, Punaloor Municipality, emphasis had been given that the legal requirement of stirring and churning should have been performed by the vendor. In order to attain homogeneity in curds stirring and churning as the case may be, becomes necessary for the ingredients of milk, solid non-fat and milk solid fat getting a uniform consistency in order to determine the percentage in their completeness. Identical view was taken in the case of Chhajoo v. State, 2002 (1) JIC 438. 7. There is nothing on record to show that the churning of milk was made and there is every possibility that because of non churning the fatty contents came on the surface and the non fatty contents settled down. This fact was not correctly answered by the Courts below. Thus in the given circumstances, findings of Court below are not sustainable which needs interference of this Court. In the result, the revision is allowed and the impugned judgment is hereby quashed. —————