STATE OF GUJARAT Vs. KARSON ZAVER

JUDGEMENT

(1.) This in an appeal by the State of Gujarat against the acquittal by the learned Sessions Judge of Surat who set aside the conviction and sentence passed upon one Karson Zaver under sec. 16(1)(a)(ii) of the Prevention of Food Adulteration Act. The learned Special Judicial Magistrate First Class Surat convicted the respondent under sec. 16(1)(a)(ii) of the Prevention of Food Adulteration Act which will be hereinafter referred to as the Act for having sold adulterated milk to the complainant Food Inspector D. K. Desai of Surat on 4-8-58. The respondent was going with 15 seers of milk for sale. The complainant Food Inspector who was accompanied by two Panchas asked the respondent about the quality of milk and he was told that it was buffalo's milk. He purchased 1 1/2 seers of milk from the respondent and after following the procedure laid down in the Act he took samples of milk and sent one sample to the Public Analyst. He gave one bottle of sample milk to the respondent and sent the other to the Public Analyst. According to the prosecution the result of the analysis by the analyst was that the milk was found to have contained 6.3% of fat and 8.6% of solids other than fat whereas according to the standard laid down in the rules under the Act buffalos milk should contain in the territories of Bombay State 8.6% of fat and 9% of solids other than fat. The respondent was thereupon prosecuted and convicted by the learned Magistrate who relied on the certificate issued by the Public Analyst and also on the evidence of the Public Analyst Shri S. S. Bhatt who was examined as a witness. The learned Magistrate also considered the fact that the respondent had a previous conviction under the same Act and passed sentence of three months rigorous imprisonment and a fine of Rs. 500.00in default rigorous imprisonment for one month.

(2.) The appeal filed by the respondent before the learned Sessions Judge Surat was allowed by the Sessions Judge on the grounds that Shri S. S. Bhatt was not a Public Analyst when he examined the sample of milk which was sent to him as Shri Limdi who had been appointed by the State Government as Public Analyst had gone on leave and Shri Bhatt had merely been appointed acting officer-in-charge of the Public Laboratory at Surat by the Sanitary Committee of the Surat Borough Municipality and had not been appointed a Public Analyst. The learned Sessions Judge referred to the Notification by the State Government dt. 17-7-58 issued under sec. 8 of the Act appointing the officer-in-charge of the Public Health Laboratory Surat Borough Municipality to be the Public Analyst for the Surat Municipal area. The learned Sessions Judge thought that the officer-in-charge of the public Health Laboratory would not include any person who is temporarily holding charge of such public Health Laboratory. The learned Sessions Judge also observed that the State Government had not delegated the power of appointing Public Analyst to the Sanitary Committee of the Surat Borough Municipality and he therefore came to the conclusion that the report Ex. 5 of the Public Analyst could not be considered in evidence. As regards the oral evidence of Shri Bhatt the learned Sessions Judge observed that there is no material on record to hold that Shri Bhatt was appointed by the Government a Public Analyst and so the opinion of Shri Bhatt cannot be said to be that of a Public Analyst or of a person competent as such. The learned Sessions Judge therefore came to the conclusion that the prosecution had failed to prove that the milk in question was adulterated milk. He thereupon set aside the conviction and sentence passed upon the respondent.

(3.) The State has now come in appeal against the acquittal and the learned Assistant Government Pleader for the State has challenged the reasoning of the learned Session Judge on both the points namely that Shri S. S. Bhatt was not a Public Analyst and (2) the evidence of Shri S. S. Bhatt is also not admissible to prove that the milk in question was adulterated. Mr. Desai the learned counsel for the respondent has contended that Shri Bhatt was acting officer-in-charge of the Public Health Laboratory and that there was no appointment by the State Government appointing him as Public Analyst. It is also contended that the State Government had not considered whether Shri S. S. Bhatt was qualified to be appointed as a Public Analyst and whether he could be appointed as a Public Analyst under the rules framed under sec. 23 of the Act. It is also urged that the State Government must appoint Public Analyst by name. He therefore supports the finding of the learned Sessions Judge that the report Ex. 5 Shri Bhatt is not a report of a Public Analyst under the Act and is therefore inadmissible in evidence. As regards the oral evidence of Shri Bhatt the contention of Shri Desai the learned counsel for the respondent is that the Act is a self-contained Act and provides the only method of proving the fact that milk was adulterated. According to him the Food Inspector has to take a sample and to send one part of the sample to the Public Analyst. According to him this is the only method of proving the fact that milk was adulterated and it is not open to the prosecution to rely on the oral evidence of person who is not a Public Analyst.