KAILASH CHAND Vs. STATE,

JUDGEMENT

(1.) THE petitioner was convicted under Section 7/16 of the Prevention of Food Adulteration Act on the 10th of January, 1969, and sentenced to six months rigorous imprisonment and a fine of Rs. 1,000/ - in default of payment whereof he was to undergo four months rigorous imprisonment. The conviction and the imposition of the sentence were confirmed by a detailed judgement containing a thorough appraisal of the evidence adduced in the case which judgement was recorded by the appellate court on the 5th of November, 1969. The prosecution was based upon the collection of 600 grams of "Amchoor Sabat" at 12.45 p.m. by P.W. 1 from the shop where Kailash Chand petitioner was carrying on the business as a partner.

(2.) NO contest was raised before the courts below that the report submitted by the Public Analyst was erroneous or that the commodity, the sample whereof was the subject of the aforementioned report, was not adulterated. The third sample which remained with the present petitioner was never sought to be analysed by the Director of Central Food Laboratory. No resort was had to the provisions of Section 13 of the Prevention of Food Adulteration Act, hereafter to be mentioned as "the Act". There is no prohibition in the Act or in the Code of Criminal Procedure in view whereof the present petitioner could not apply to the trial court for examining the Public Analyst on whose report the prosecution was founded. That report is not the subject -matter of any of the grounds on the basis of which this revision petition has been moved.

(3.) THE circumstances pleaded by the prosecution are that apart from P.W. 1, P.Ws. 3 and 4 who were called from the same locality and P.W. 5 who was another Food Inspector witnessed the occurrence. P.W. 1 asked the petitioner to sell the sample to him. It is the petitioner's case that he asserted that the entire material - 38 kilograms - contained in the said gunny bag was not meant for sale. It stands proved that on the face of the document Exhibit P.C. at the very earliest the petitioner wrote in his own hand that what was contained in the concerned gunny bag was refuse and was not meant for sale. It is, however, pertinent to note that the said assertion in the peculiar circumstances where it was preceded by a refusal to sell the material does not go beyond recording that what was contained in the gunny bag was mere refuse not meant for sale. This aspect of the case becomes prominent in the context of the defence version put to the prosecution witnesses at the trial and is also to be scrutinised in the light of the stand taken by the present petitioner when examined under Section 342 of the Code of Criminal Procedure. A statement made by an accused person is to be considered in terms of Sub -Section (3) of the aforementioned section. Questions are put to an accused person in order to give him an opportunity to furnish explanation in respect of the allegation which may be deemed to have been established and the points put are those which may be ultimately utilised against the accused person while arriving at conclusions in the course of the judgement.