SIRAJUDDIN Vs. STATE OF UTTAR PRADESH

JUDGEMENT

(1.) This is an application in revision by Rirajuddin against the judgment and order of Naseem Uddin, 2nd Additional Sessions Judge, Nainital dated April. 27, 1981 by means of which he dismissed Criminal Appeal No. 211 of 1980 and maintained the judgment of Sri J. R. Sharma, Additional Chief Judicial Magistrate, Kashipur convicting the applicant under Section 7/16 Prevention of Food Adulteration Act and sentencing him to rigorous imprisonment for six months and a fine of Rs. 1,000/ -. Briefly stated, the prosecution case was that on 28-11-1978 at about 7-30 A. M. R. P. Ojha, Food Inspector, Jaipur went to the shop of the appli cant who had exposed milk for sale in the shop. This was mixed milk of cow and buffalo in equal proportion. He gave notice in form VI to the applicant and purchased 660 ml. , of this milk and paid its price at Rs. 1. 50. This milk was divided in three parts and sealed in three clean bottles, one of these was sent to the Public Analyst who found that the milk contained in it only 4% of fat as against 4. 5% and 6. 6% of non-fatty solids as against 8. 5%. Because of this deficiency both in fatty and non-fatty solids the milk was found to be adulterated. Therefore, after obtaining sanction of the Chief Medical Officer the applicant was prosecuted and has been convicted as aforesaid. It was argued by the learned counsel for the applicant that the sample of milk was drawn on 28-11-1978 and the report of the Public Analyst was made on 9-2-1979 and in spite of it the prosecution was not launched for almost five months that and was launched on 4-7-1979. After the launching of this prosecution a copy of the report of the Public Analyst was sent to the applicant on 16-7-1979 and must have reached him some days after that and because of this undue delay in furnishing a copy of the report of the Public Analyst to the applicant he was deprived of the right he had under Section 13 (2) of the Act to get the sample re-analysed by the Director, Central Food Laboratory, Calcutta, because the sample must have got deteriorated by then and after disintegration the milk could not possibly be analysed. In this case decision of this Court in Criminal Revision No 1612 of 1962 (Gokul Chand v. State) may be mentioned in which 121 samples of milk were obtained and sent for analysis. The analysis was to be done after every four days and in this experiment it was found that where cow milk had one drop of formaline as preservative then the milk had not got deteriorated in 210 days and where it had two drops of fermaline as preservative it did not get deterioated for 308 days, but partial deterinoration started after 295 days. It was also found that in the matter of preservation of milk there would not be much difference in cow milk and buffalo milk. In this case a copy of the report of the Public Analyst was sent to the applicant 230 days after the sample was drawn. By that time the milk must have deteriorated unless extra fermaline was mixed with it as preservative. There is, however, nothing to indicate the amount of formaline mixed and. therefore, it can be reasonably supposed that after 210 days this milk must have got deteriorated. It was, therefore, useless to send it to the Director of Central Food Laboratory after the lapse of so much time and the right which the applicant had under Section 13 (2) of the Act to get the milk re-analysed by the Director, Central Food Labora tory was denied to him, and this caused prejudice to the applicant. For this reason, therefore, the applicant could not be convicted. This revision is, therefore, allowed. The conviction and sentence of the applicant is hereby set aside. The applicant is on bail. He need not surren der and his bail bonds are hereby discharged. Fine, if paid, shall be refunded to him. .