RAM ASREY Vs. STATE OF U P

JUDGEMENT

(1.) THIS revision has been filed by one Ram Asrey, who was convicted by the Chief Judicial Magistrate, Farrukhabad under section 7 read with section 16 of the Prevention of Food Adulteration Act and sentenced to undergo Rigorous Imprisonment for six months and a fine of Rs. 1000/-. His conviction and sentence of imprisonment and fine were confirmed in appeal by the Additional Sessions Judge, Farrukhabad.

(2.) ACCORDING to the prosecution case Shri Ram Singh Gangwar, Food Inspector of Municipal Board, Farrukhabad accompanied by the Chief Food Inspector Shri R. B. L. Sagar inspected the shop of the applicant in Mohalla Nala Machharhatta of Farrukhabad town. 'They found in that shop exposed for sale 8 kg. of buffalo milk stored in a 'Bhagauna'. A notice was given to the applicant that he was Food Inspector and he wanted to purchase milk for analysis by the Public Analyst. ACCORDINGly he purchased 660mili-litres of milk from the applicant after paying its requisite price. The milk was divided into three equal parts and sealed in separate phials after putting in 8 drops of formalin in each one of them as a preservative. One of those phials was handed over to the applicant. The other was sent to the Public Analyst for analysis and the third was retained in the office of the Chief Medical Officer of Health. The report of the Public Analyst disclosed that the sample contained 5% fat and 9% non fatty solids. Thus the sample was deficient in fat contents by, 17%. After receipt of this report, a copy of it was sent to the applicant. A complaint was filed before the Chief Judicial Magistrate after obtaining the sanction of the Chief Medical Officer of Health, Fateh- garh. The applicant was not satisfied with the report of the Public Analyst. He, therefore, requested the Court to send the sample retained by him for analysis by the Director, Central Food Laboratory, Ghaziabad. The result of the analysis made by the Director, Central Food Laboratory was that the sample contained 5.6% fat and 8.7% of milk solids. The opinion of the Director, Central Food Laboratory was that the sample was adulterated.

(3.) IT has also been contended that the provisions of Rule 9 (j) of the Prevention of Food Adulteration Rules, which were in force at the time when the sample was taken were not observed and the conviction, therefore, cannot be maintained. A Division Bench of our High Court has recently held that Rule 9 (j) as it stood after amendment in 1974, was not mandatory in nature but was only directory. The accused will have to show that prejudice was caused to him in case of non-observance of the provisions of Ruie 9 (j). So far as the facts of this case are concerned after the report of the Public Analyst was received, the applicant moved the Chief Judicial Magistrate for sending the sample in his possession to the Director, Central Food Laboratory, who also gave his opinion that the milk in question was adulterated. Thus the question of causing of any prejudice to the applicant on account of non-observance of the provisions of Rule 9 (j) would not be of any help to the applicant.