Full Judgment
A.K. Shrivastava, J.
1. The applicant has been convicted for the offences punishable under Sections 16(1)(a)(i) and 7(1) of the Prevention of Food Adulteration Act, 1954 (hereinafter referred to as 'the Act') and has been ordered to suffer sentence of Rigorous Imprisonment for six months and fine of Rs. 1000/- and in default two months further Rigorous Imprisonment.
2. In brief the case of prosecution is that on 23-3-1988, Food Inspector H.D. Dubey (P.W. 1) obtained sample of milk from the applicant who was carrying the milk for sale. It is said that the applicant was serving for Kabul Singh and was carrying the milk for him. The milk which was being carried by the applicant was said to be of cow and she buffalo. The Food Inspector after performing the necessary formalities sent the sample to the Public Analyst at Bhopal, which was received in the office of Public Analyst on 29-3-1993 vide Ex. P-9. The report of Public Analyst is Ex, P-12, according to which the impugned sample of milk was found to be adulterated and hence the applicant was prosecuted after serving notice upon him.
3. The learned Trial Judge framed charges under Section 7(1) read with Section 16(1)(a)(i) of the Act which was abjured by the applicant.
4. So as to bring home the charges the prosecution examined only Food Inspector, Hardayal Dubey. The learned Trial Judge after appreciating the evidence and documents placed on record found the charges to be proved, hence by the judgment dated 5-1-1994 convicted the applicant to suffer the sentence mentioned hereinabove.
5. Feeling aggrieved by the judgment of conviction and order of sentence the applicant preferred an appeal before the Appellate Court which dismissed the appeal. Hence this revision.
6. In this revision petition Mr. Amit Dubey, learned Counsel for the applicant submitted that as the sample of milk was not sent immediately to the Public Analyst in the manner as indicated in Clause (a) of Rule 17 of the Prevention of Food Adulteration Rule, 1955, and before obtaining the sample, the milk was not stirred so as to make it homogenous. According to the learned Counsel the mandatory requirement of law as indicated in Rule 17 has not been complied with as such the judgment of conviction passed by the Courts below is erroneous and contrary to law.
7. Mr. Wakil Khan, learned Panel Lawyer for the State on the other hand contended that there is no infirmity in the judgment of the learned Courts below. The revision has no merit and deserves to be dismissed.
8. After hearing the learned Counsel for the parties, I am of the view that the revision deserves to be allowed. Before considering the rival contentions of the parties it would be relevant to mention Rule 17 (a) of the Act, which reads as under :--
'17. Manner of despatching containers of samples.--Thecontainers of the samples shall be despatched in the following manner, namely :-- (a) the sealed container of one part of the sample for analysis and a memorandum in Form VII shall be sent in a sealed packet to the public analyst immediately but not later than the succeeding working day by any suitable means.'
9. According to Clause (a) of Rule 17 it is incumbent to have sent the sample immediately but not later the succeeding date by any suitable means. According to Mr. Wakil Khan, learned Panel Lawyer for the State, the sample was sent on 24-3-88 and therefore there is no violation of the said Rule. At this juncture, it would be relevant to refer the document Ex. P-9, which is a receipt receiving the sample by the Public Analyst at Bhopal. It has been mentioned in this receipt that the sample was received on 29-3-1988. If the sample was sent from Jabalpur by suitable means on 24-3-88, then why it reached to Bhopal on 29-3-88 after five days. Had the sample been sent on 24-3-88 from Jabalpur to Bhopal, definitely it would have reached much earlier to 29-3-88. Thus, according to me, it appears that the sample was not sent immediately, otherwise it would have reached much earlier to 29-3-88. Hence, there is non-compliance of the mandatory requirement of Rule 17.
10. This Court in the case of Narmada v. State of Madhya Pradesh, 1994 (2) Vibha 316, by placing reliance upon the decision of the Apex Court in the case of State of Mahamshtra v. Raj Karan, 1989 All India PFAJ 12, has held that provisions of Rules 17 and 18 are mandatory. In this context it would be profitable to refer another judgment of this Court reported in Hiralal v. Food Inspector, Morena and Anr., 1995 (2) Vibha 84. In this view of the matter it is held that the mandatory requirement of Rule 17 has not been complied with and therefore the impugned judgment passed by the learned Courts below cannot be sustained.
11. The next contention of Mr. Amit Dubey, learned Counsel for the applicant is that before obtaining the sample of milk the same was not stirred so as to make it homogenous. He has placed reliance on the decision of K. Harikumar v. Food Inspector, 1995 Supp (3) SCC 405, State of Himachal Pradesh v. Sher Khan, 1998 Cr.LJ 563, State of Himachal Pradesh Madan Lal, 2000 Cr.LJ 4200 and State of Rajasthan v. Kachab, 1980 Cr.LJ 894. There is sufficient force in this contention. In the Panchnama (Ex. P-7) prepared by the Food Inspector H.D. Dubey (P.W. 1), it has not been mentioned that before obtaining the sample of milk, it was stirred so as to make the milk homogenous. In the complaint as well it has not been so mentioned. For the first time in the Court, the Food Inspector has stated that before obtaining the milk, it was stirred which is afterthought.
12. In view of the aforesaid premised reasons, the revision petition succeeds and is hereby allowed. The judgment and sentence of conviction passed by the learned Courts below is hereby set aside. The applicant is acquitted, he is on bail, his bail bonds are discharged.