STATE OF GUJARAT Vs. AKHAJI ADAJI MALI

JUDGEMENT

(1.) THE appellant State of Gujarat has preferred this appeal under Section 378 of the Code of Criminal Procedure challenging the order and judgment passed by the learned Judicial Magistrate First class, Deesa dated 25th September, 1995 in Criminal Case No. 1946 of 1989 acquitting the present respondent of the charges under Section 7 (7) (1) (5) read with Section 16 of the Prevention of Food Adulteration Act, 1954 (herein after referred to as 'the Act' for short ). This court (Coram : miss R. M. Doshit, J.) vide order dated 6. 2. 1997 granted leave and admitted the appeal.

(2.) THE case of the appellant in short is that on 30th May, 1989 in the morning the original complainant Food Inspector had gone for usual checking in the area of Deesa Municipality. The complainant saw the accused selling milk of cow. In presence of panch witness Shri Bhagwandas Kalidas, the complainant purchased 660 ml. of cow milk from the accused and issued notice under Rule 12 in Form No. 6 informing the accused about his intention to send the sample food article to Public Analyst. The payment for the sample food article was made to the accused and the receipt thereof was also obtained. The sample food article was, thereafter divided into three equal parts and collected in a dried, cleaned, odourless glass bottles. The glass bottles were tightened with wooden seal so as to prevent moisture or any other particles from getting into it. The requisite preservatives were added before sealing the samples and bottles were packed in strict compliance of the Prevention of Food Adulteration Rules, 1955 (hereinafter referred to as 'the Rules' for short ). The panchnama was drawn of the incident of collecting the sample. One part of the sample food article was sent to the Public analyst. The remaining two parts of the sample food articles were sent to the Local Health Authority as required under the law. The Public Analyst in his report indicated that the food article in question was not in conformity with the standard laid down in the Rules and therefore, the Food Inspector obtained permission from the Local Health Authority for instituting the prosecution against the accused. On receiving the consent for lodging the prosecution, the complaint was lodged.

(3.) THE notice under Section 13 (2) came to be issued by the Local health Authority to the accused informing him that the remaining samples could be tested at the end of Central Food Laboratory as required under the law. The same notice was served in person, as it could not be served through post. The trial Court has recorded plea of the accused and proceeded further in the matter. The trial court has framed two issues namely (i)Whether the prosecution proves beyond doubt that the accused has committed an offence of selling sub-standard milk to the Food Inspector contrary to the provisions of Section 7 and punishable under Section 16 of the Act? (ii) What order? The first issue is answered in negative and the second issue is answered as per his order. The learned Judge after discussing the social philosophy as he perceived, came to the conclusion that when the laboratories in our country cannot be sure that they were giving 100% correct result, the accused deserves benefit of doubt and accordingly, ordered his acquittal vide judgment and order dated 25th September, 1995. The said impugned order is under challenge in this appeal.