UMARDARAZ Vs. STATE

JUDGEMENT

(1.) The applicant has been convicted under Sec. 7/16 of the P.F. Act and sentenced to imprisonment till the rising of the court and a fine of Rs. 2,800.00 by the Magistrate first class Ghaziabad. His conviction and sentence have been maintained in appeal by the Sessions Judge, Ghaziabad. Hence this revision.

(2.) I have carefully perused the impugned orders. According to the prosecution case the Food Inspector had taken a sample of rapeseed oil from the shop of the applicant on 18th Dec. 1979 at about 6 P.M. One of the sample phials which was sent for analysis to the Public Analyst disclosed the rapeseed oil to be mixed with butter yellow cotton dye, which was prohibited. After taking sanction the applicant was prosecuted and convicted as above.

(3.) I am normally very reluctant to interfere with the findings of fact, recorded by the courts below, but this appears to be one of those exceptional cases in which I should interfere, otherwise there is likelihood of miscarriage of justice. The defence taken up by the accused was that the rapeseed oil, of which a sample was taken, was meant for oiling his expeller machines. On the facts admitted, the position is that his shop is divided into two parts by a packka wall. On one side of it, he sells articles of food and on the other side he has fixed an expeller machine. The prosecution evidence disclosed that the oil in question was only 11/2 kg. in a container of 45 kg. There is no evidence to indicate that there were more tins of rapeseed oil in the shop for the purpose of sale. Shopkeeper who deals in rapeseed oil would not keep only 11/2 kg. Normally the quantity expected would be much more. This is the first circumstance supporting the defence case. Secondly, the prosecution evidence itself discloses that this 11/2 kg. of rapeseed oil was kept near the expeller machine. Thus it was not kept in that part of the shop which was meant for sale. As I have mentioned above, the shop was partitioned by a wall and the portion where sale was being affected of food stuffs was entirely separate from the expeller where it was fixed. This is the second circumstance in favour of the defence. Thirdly, the defence plea has been taken up by the accused specifically that the oil of which a sample was taken was not meant for sale but was for oiling the expeller. This statement was made under Sec. 3)3 Cr. P.C. This is not a case where the plea was not taken at all and some new case has been spun out in the cross-examination. Fourthly, the accused has led evidence to prove that at the time when the Food Inspector was taking the sample, the accused was holding a cotton cloth which was set with the oil, which was used for oiling the expeller machine.