GANESH PRASAD Vs. STATE OF U.P.

JUDGEMENT

(1.) The applicant has been convicted by Shri K.L. Dhore Magistrate by his order dt. 4-9-1970 u/S. 7/16(1)(a)(i) of the Prevention of Food Adulteration Act and sentenced to six months' R. I. together with a fine of Rs. 1,000.00. In default of payment of fine he has been ordered to undergo two months' further R.I. ; that order has been confirmed in appeal.

(2.) The prosecution case is that on 26-12-1968 at 11 a.m. at premises no. 74/12 situate in Mohalla Collectorganj P.S. Collectorganj, the applicant was selling and exposing for sale ghee. A sample was taken by the Food Inspector Shri R. A. Sharma. He sealed it into three bottles and obtained receipt after payment of the price of the ghee (Ext. Ka-1). He also served a notice on the applicant (Ext. Ka-2) and obtained signature of the applicant. He also prepared spot note (Ext. Ka-3). The sample was then sent to the Public Analyst. The report of the Public Analyst dt. 27-1-1969 was received to the effect that 6.9% of free fatty acidity above the maximum limit of 3% was there and as such the ghee was found to be adulterated. The applicant was then duly prosecuted on the basis of the complaint filed on 27-1-1970. He was (summoned) for 20-2-1970. He did not dispute that fact of the sample being taken and the price being paid to him. His only defence was that the ghee was not adulterated and its acidity increased automatically by lapse of time. The learned Magistrate, however, found him guilty and convicted and sentenced as stated above.

(3.) Learned counsel for the applicant has argued that the complaint was filed after an inordinate delay and that the applicant had no opportunity of sending his sealed phial for examination by the Director within a reasonable time. It appears that no application had been moved by the applicant for sending his sample to the Director nor any report of the Director could be received showing that the constituents had changed due to lapse of time. In the case of Ajit Pd. Ram Kishan Singh Vs. State of Maharashtra F.A.C. 1972 545 the Supreme Court held that an accused cannot take such a plea if he had not made an application. The same view was taken by the Supreme Court in an earlier case of Babulal Hargovind Vs. State of Gujarat 1972 F.A.C. 18. Such a plea, therefore, is not open to the applicant any more.