DEVENDER KUMAR JAIN Vs. STATE

JUDGEMENT

(1.) The petitioner was convicted and sentenced by the Metropolitan Magistrate by his judgment dated Dec. 2, 1977 under Sec. 16 of the Prevention of Food Adulteration Act. Upon appeal, the Additional Sessions Judge by his Judgment dated June 9, 1978 modified the convictions and sentence as follows ; -

(2.) The brief facts are that on Aug. 10, 1976 Food Inspector, Ram Rishi Sharma purchased from the petitioner a sample of milk out of the three cans carried on a bicycle by the accused. Upon analysis, the sample was found to be adulterated because it was deficient in fat contents. Later on, the sample was sent for analysis to the Central Forensic Laboratory which reported that the sample was adulterated because the milk fat was only 4%. The prosecution case was supported by the evidence of the Food Inspector, Ram Rishi Sharma and another Food Inspector Chander Singh. According to Sec. 10 of the Act, the Food Inspector Is required to call one or more persons to be present and take his or their signature at the time of purchase of the sample. No such independent witness was called. But the non-compliance of the provisions of Sec. 10, sub-section (7) per se does not vitiate trial unless the Food Inspector is an accomplice or inimical to the accused. There is no cause for disbelieving the testimony of the two Food Inspectors. They have been believed by the two courts below. I, therefore see no reason to interfere with the findings arrived at by the learned Additional Sessions Judge.

(3.) However, in view of the M.C.D. Vs. Darshan Kumar, 1979 (1) FAC 124 the conviction of the petitioner for breach of Rule 30 is Illegal. As regards the conviction on the count of gelling adulterated milk, the learned counsel for the petitioner submitted that the petitioner is a young man of 23 years and has for all times to come given up the business of selling milk and deserves to be treated leniently and his sentence should be reduced under the proviso to sub-section (1) of Sec. 16. I am inclined to grant this leniency.