KAMLESHKUMAR BABULAL PATEL Vs. STATE OF GUJARAT

JUDGEMENT

(1.) This Revision Application directed against the judgment and order dated 21/10/1978 passed by the learned Sessions Judge Ahmedabad City confirming conviction of the petitioner (original accused) under sec. 16(1)(a)(i) read with sec. 7 of the Prevention of Food Adulteration Act (hereinafter referred to as the Act) and sentencing him to three months simple imprisonment and fine of Rs. 500.00 or on default fifteen days further simple imprisonment has been referred to us as the learned Single Judge before whom it came up for hearing was of the opinion that there was conflict of views between different Division Benches of this Court on the question whether compliance with provisions of Rule 16(d) of the Prevention of Food Adulteration Rules (hereinafter referred to as the rules) was required to be proved by positive evidence.

(2.) Facts leading to this revision application are as follows. Respon- dent No. 2 who is a Food Inspector of the Ahmedabad Municipal Corporation purchased 700 ml. of cows milk from the petitioner who was carrying on business of selling milk on 26/04/1977 for Rs. 1.05 P. after giving due intimation in writing to him that the milk was purchased for analysis by the Public Analyst. The Food Inspector purchased milk in presence of his peon Madhukant Sunderlal Ankleshwaria and panch witness Rameshchandra Narandas Parmar. The Food Inspector divided the milk purchased by him into three equal parts each part was poured in a bottle and preservative called formalin was added to it. Each bottle was wrapped in a brown paper. The ends of the paper were affixed by means of gum and the paper cover was secured by means of twine. The paper slip bearing signature and code and serial number of the Local (Health) Authority and the signature of the petitioner was pasted on wrapper containing each bottle and each packet was sealed. One of the bottles containing sample of milk was sent to the Public Analyst for analysis. The Public Analyst by his report gave opinion that the sample of milk sent to him for analysis contained 7.6% solid nonfat as against 8.5% prescribed by the Rules while the percentage of milk fat was 5.5% as against 3.5% prescribed by the Rules. In the opinion of the Public Analyst there was deficiency in milk solid non-fat which was to the extent of 0.9% there was addition of water to the extent of 10% and that the sample did not conform to the standard laid down by the Rules. The peti- tioner was therefore prosecuted for offence punishable under sec. 16(1) (a)(i) read with sec. 7 of the Prevention of Food Adulteration Act in the Court of Metropolitan Magistrate 8th Court Ahmedabad.

(3.) During trial on application made by the petitioner the learned Magistrate sent one of the two remaining sample bottles to the Director of the Central Food Laboratory under sub-sec. (2A) and (2B) of sec. 13 of the Act. The Director of Central Food Laboratory by his Certificate stated that the sample of milk contained 6.1% of milk fat and 7.9% of milk solids non-fat and gave an opinion that the sample of milk was adulter- ated.