SITA RAM Vs. STATE OF U.P.

JUDGEMENT

(1.) Revisionist Sita Ram has been convicted under Sec. 7/16, Prevention of Food Adulteration Act and sentenced to six months' rigorous' imprisonment and a fine of Rs. 1000.00 in default further R.I. for three months. He has also been convicted under Sec. 16 of the Act for sale of milk without license and sentenced to R. I. for six months and a fine of Rs. 1000.00 in default further R. I. for three months both the substantive sentences being made concurrent.

(2.) The prosecution case was that on 10-12-1977 at about 9 a.m. the revisionist was found having in his possession for sale adulterated mixture of cow and buffalo milk in equal proportion near motor stand, Jalaun. A sample of the milk taken by the food inspector was on analysis by the public analyst found to contain only 41% milk fat and 7.7% non-fatty solids, thereby being deficient in fat contents and non-fatty solid contents by about 9% from the prescribed standard applicable to such mixed milk. Both the courts below have disbelieved the defence which it is not necessary to set out and convicted the revisionist.

(3.) The main point present in revision is that the revisionist has been prejudiced by non-compliance with Sec. 13(2) by the local health agency and by rejection by the court of his request in application dated 1-6-1979 to send the milk sample to Central Food Laboratory for analysis. Having heard the learned counsel an l perused the record, I am satisfied that there is substance in this contention. The record shows that the food inspector in his evidence gave out that an intimation Ex. Ka 7 alongwith the public analyst's report was forwarded to the accused after the grant of sanction dated 3-10-1978. Ex. Ka 7 docs not mention the purported date of issue, nor has this date been given in evidence. The registration receipt or the acknowledgement of service of this cover too have not been produced or proved. The question to the accused did not refer to the intimation Ex. Ka 7 and was confined merely to receipt of the copy of the public analyst's report but even with regard to this there was no reference to the date of such receipt. The accused acknowledged receipt of the report. In this situation the contention that the prosecution cannot be said to have proved the intimation under Sec. 13(2) having been duly (i.e. immediately after institution of prosecution with a copy of P.A.'s report vide R.I. 9A) sent to the revisionist has substance. If so 10 days limit for applying under Sec. 13(2) for Central Food Laboratory examination will not apply. Even if we take it that such intimation was some time after 3-10-1978 served upon the accused with the public analyst's report without any idea as to when this was done the accused's right to secure a Central Food Laboratory analysis would continue. The limit of ten days mentioned in the intimation can be of any assistance to the prosecution only in cases where the intimation has been served because ten days run from the date of service. Where this date is not known, the limit is meaningless. Then again even if it is taken that the request by the accused was somewhat belated and beyond the 10 days limit in the intimation under Sec. 13(2) there would be no justification for the court refusing to send the sample to the Central Food Laboratory. The Central Food Laboratory may well have reported that no deterioration had taken place in the sample to prevent reliable analysis and in that case the delay would have been immaterial. This is especially so in a case where there is reason to suppose that the prosecution itself was so belated as to make it doubtful if the right to secure a Central Food Laboratory analysis in compliance with the intimation under Sec. 13(2) would have been meaningful. It has been judicially noticed by a Full Bench of this Court Nagar Swasthya Adhikari Vs. Mangalia, (1970 ACC 317) that the court may presume that in the plains of U.P. the composition of milk is likely to be affected after the period of ten months or so if (I) only two drops of 40% strength of formalin per ounce is added as preservative (2) the milk is not kept in a refrigerator or cool place. The ten days of service of intimation sent after 3-10-78 in the present case would obviously end after ten months of the date of sample and there is room for the contention that the sample was already unfit for analysis and the delay in institution of the prosecution had prejudiced the option of the accused to secure a second opinion. In the face of such delay by the prosecution even if the accused applied for Central Food Laboratory examination with some delay in June, 1978 the Magistrate's rejection of the application to send the sample to the Central Food Laboratory cannot be approved. Since this rejection deprived the accused of a right to secure an authoritative opinion in his favour the conviction is unsustainable.