MAQSOOD Vs. STATE

JUDGEMENT

(1.) INSTANT revision has been preferred against the judgment and order dated 17-7-1985 passed by learned 2nd Additional Sessions Judge, Rampur, in Criminal Appeal No. 172 of 1984, Maqsood v. State and another, by which the appeal was dismissed and judgment and order dated 24-9-1984 passed by learned Judicial Magistrate, Special Court No. 3, Rampur, was confirmed. The learned Judicial Magistrate, Special Court No. 3, Rampur, has passed order of conviction of the revisionist accused under Section 7/16 of the Prevention of Food Adulteration Act and has sentenced him to undergo R. I. of six months and also a fine of Rs. 1000/ -. It was also directed that in default of payment of fine the accused was further required to undergo three months' R. I.

(2.) HEARD Sri Apul Mishra, learned counsel for the revisionist and learned AGA.

(3.) LEARNED counsel for the revisionist has submitted that the Public Analyst report was not legally proved as the original was lost. Duplicate was to be proved, which was not proved. It is also submitted that Prevention of Food Adulteration Act contains mandatory technical procedure and in case secondary evidence is not proved the order of conviction could not be passed. A perusal of the record shows that the Munsif Magistrate Court No. 3, Rampur, sent letter to the District & Sessions Judge, Rampur, for the record of Case No. 570 of 1982, State v. Maqsood, under Section 7/16 of the Act, police station Kotwali, Rampur and three other, which were lost by the accused persons. A letter was also sent by him to Superintendent of Police that accused persons of these cases were residents of police station Munda Pandey, district Rampur, and after getting the file lost they were absconding, hence they were required to be arrested. The accused persons were arrested and were bailed out in pursuance of the order passed by the learned District & Sessions Judge, Rampur. Papers were obtained from the office of the Chief Medical Officer and the files were reconstructed. The original papers were proved. The Magistrate reported that reconstruction of the file was got done on the basis of the record available in the office of the Chief Medical Officer. Memorandum to Public Analyst, Lucknow, sent by the Food Inspector on 24-5- 1982, report of the Public Analyst dated 17-6-1982 showing deficiency in milk of 63% fat and 67% non- fatty solids, sanction for prosecuting the accused revisionist made by the Chief Medical Officer on 11-11- 1992, complaint filed by Sri R. C. Srivastava, Food Inspector, Nagar Palika, Rampur on 14-12-1982, postal receipt of the notice sent to the accused revisionist under Section 13 (2) of the Act and original statements of witnesses mentioned above is on the record. When reconstruction was made by the Magistrate after seeking permission from the District & Sessions Judge and report was submitted that lost papers were reconstructed. These papers have rightly been read in evidence by the Courts below. Only copy of the notice served on the accused under Section 13 (2) of the Act was missing and there is specific statement of the PW 2 R. C. Srivastava, Food Inspector, PW 4 Gyan Chand, who was clerk in the office of the Chief Medical Officer, Rampur. The statements of these witnesses are consistent and natural and it cannot be disbelieved. Therefore, the concurrent findings made by both the Courts below that sample of the milk was taken by the Food Inspector from the revisionist and was examined by the Public Analyst, Lucknow, who reported that there was deficiency in the milk, hence it was adulterated and this findings based on evidence, which has been rightly appreciated by both the Courts below.