RAM RAKHA MAL Vs. STATE

JUDGEMENT

(1.) The Facts of This Revision Petition Are That On Aug. 5, 1976, Food Inspector Chander Singh (PW 2) Purchased A Sample Of Curd From The Petitioner Under The Purchase Memo Ex. Pc Which Shows That The Curd Was Being Sold Without Any Indication Whether It Was Of Cow's Or Buffalo's Milk. The Accused Also Noted On The Said Memo That "today There Was No Board on The Shop Which He Shall Have Put Up Today Itself". According To The Rules, Where Curd Is Sold, Without Any Indication, The Standard Which Is Required To Be Applied Is That Of Buffalo Milk. The Public Analyst Found That The Curd Was Below The Standards Prescribed For Buffalo Milk. But It Appears It Fulfilled The Standard Prescribed For Cow's Milk. However, The Metropolitan Magistrate On April 29, 1977, Convicted The Petitioner Under Sec. 16 Of The Prevention Of Food Adulteration Act, 1954 And Sentenced Him To Rigorous Imprisonment For 9 Months And To A Fine Of Rs. 1,000.00 In Default Of Payment Whereof To Further Rigorous Imprisonment For Three Months. Upon Appeal, The Learned Additional Sessions Judge Upheld The Conviction, But Reduced The Substantive Sentence To Six Months. His Order Is Dated Jan. 27, 1978. Hence This Revision.

(2.) The sole question that is canvassed before me is that the finding that the curd was being sold without any indication was against the record. The accused produced one Achraj Lal (DW 1) a Food Inspector. He deposed that he happened to check the shop of the accused petitioner earlier on March 29, 1976, and had found that he had been selling curd of cow's milk. Apart from that, the Food Inspector Chander Singh (PW 2) had himself deposed that "it was correct that a board to the effect that cow's milk and curd was sold there." The public witness Mohan Lal (PW 6) had clearly supported that "there was also written on a card board that curd of cow's milk was sold there". These facts were brought to the notice of the courts below. The learned Magistrate observed that Mohan Lal had turned hostile to the prosecution, and he made the above statement in question with the sole object of helping the accused out. With respect to the statement of Food Inspector Chander Singh (PW 2), the learned Additional Sessions Judge observed that if the entire cross-examination was read, then the aforesaid statement of his only appeared to be a clerical mistake. Read in isolation the said sentence did not make any sense. He also guessed a reason for the mistake. This so happened said the learned Judge, because the statement was recorded not by the Presiding Officer in his own hand but by some member of his staff. He relied upon his findings largely upon the endorsement made by the accused on the purchase memo Ex. PC which said that today there was no board at the shop and that it shall be put up today itself. That is how the learned Additional Sessions Judge upheld the conviction.

(3.) Upon a consideration of the matter, I must disagree with the approach adopted by the learned Additional Sessions Judge. The statement favourable to the accused made by the Food Inspector cannot be brushed aside by saying that it was a clerical mistake. Conviction cannot be based simply upon the endorsement made by the accused, in which he does not say that he was selling the curd without any indication. It is really very unfortunate to note that the trial Magistrate showed exemplary carelessness in the recording of statement made by witnesses of the prosecution The benefit of this carelessness cannot go to the prosecution especially when the statement was read over to the witness and admitted to be correct by him and signed in token thereof, therefore, find that there is no justification for the conviction of the petitioner. There is no satisfactory evidence on record to prove beyond reasonable doubt that the curd was being sold without any indication that it was of cow's milk.