STATE OF U P Vs. GAURI SHANKER

JUDGEMENT

(1.) GAURI Shanker son of Pancham Lal and Radhey Shiam Son of Ghanshiam Das were prosecuted under Sections 7 (1)/16 (1) (a) (i) of the Prevention of Food Adulteration Act by the ,sub Divisional Magistrate Kalpi by his judgment dated 21. 4. 1965. They were sentenced to a fine of Rs. 1,000/- and to rigorous imprisonment for nine months. They filed an appeal against their conviction which was allowed by the Sessions Judge by his order dated 18. 10. 1967, whereby the case was remanded for retrial. Both the accused were thus retried for the aforesaid offence. Radhey Shiam was acquitted by the 1st class Magistrate Jalaun by his judgment dated 21st May 1968 of the offences for which he has been charged and convicted Gauri Shanker under Section 7 (1)/16 (1) (i) of the Prevention of Food Adulteration Act and sentenced him to a fine of Rs. 1000/- and 9 months' rigorous imprisonment. Gauri Shanker filed an appeal before the Sessions Judge Oral. By his judgment dated 12th October 1968 the Sessions Judge has allowed the appeal and set aside the conviction and sentence recorded against Gauri Shanker. The State has now filed the present appeal against the acquittal of accused Gauri Shanker.

(2.) THE case for the prosecution is that on 30tti July 1964 Sri Basant Singh was Food Inspector of Municipal Board Oral At about 3 PM. on that data he went to the Oil Mill of Radhey Shiam. He found Gauri Shanker at the shop. It may be mentioned at the out set that the appellant is both a manufacturer and a retail seller of oil1. The Food Inspector purchased 1 Pao of mustard oil (Kail Lahi Ka tail) for Re. 1/ -. Receipt in token of the payment of the price Ex. Ka-1 was taken by the Food Inspector from the accused Gauri Shanker. The Food Inspector informed Gauri Shanker that the oil was being purchased1 as a sample for analysis by the Public Analyst. This information was conveyed to Gauri Shanker through the writing Ex. Ka-2 which, bears the signature of Gauri Shanker and two witnesses. The Food Inspector after making the purchase divided the oil into three equal parts and put it into three different bottles. The sample was taken in the presence of Mukhtar Ahmad Ansari and Sri Krishna. The samples were closed labelled and sealed in the presence of the accused. One bottle of the sample was handed over to the accused and out of the remarking two bottles one was sent to the Public Analyst for his report. In the opinion of the Public Analyst the sample did not conform to the standards prescribed for mustard oil (Kali Lahi ka tail) in the following respects:

(3.) THE accused Gauri Shanker pleaded not guilty. It is important to note that the defence originally taken up by Gauri Shanker was that he had extracted linseed oil in his oil crusher and subsequently he extracted mustard oil in the same crusher, as such there could be mixture of linseed oil with mustard oil. On this basis he denied having committed any offence. When however, the conviction of the accused was set aside in appeal by the Sessions Judge and the case was remanded for retrial, Gauri Shanker gave up his earlier defence plea. He took up the defence that the oil from which a sample had been taken from his shop belonged to a customer and as such he had not committed any offence. It is this subsequent defence plea with which we would be concerned in the present case.