JITENDRA KUMAR GUPTA Vs. STATE OF U P

JUDGEMENT

(1.) THIS criminal revision has been filed challenging conviction and sentence of the applicant for six months R.I. and a fine of Rs. 1,000/- under Section 7/16 of the Prevention of Food Adulteration Act, 1954, here-in-after referred to as 'Act', awarded by the learned Additional Chief Judicial Magistrate, Varanasi on 11.1.82 in Criminal Case No. 1096 of 1981 which has been confirmed in Appeal No. 19 of 1982 by Judgment and order dated 19th May, 1982 passed by V Additional Sessions Judge, Varanasi.

(2.) THE facts, in brief leading to the applicant's conviction and sentence, are that on 27th September, 1979 at 11.30 a.m. a sample of Besan (Cicer Crietinum) which is a product obtained by grinding de husked Bengal gram, was collected by B. K. Singh, Food Inspector. THE sample was sealed in three bottles one of which was sent to Public Analyst who, gave opinion that the sample contained small proportion of powdered kesari and the use of which is prohibited. Sri H. C. Verma, Nagar ;Swasthya Adhikari, Nagar Mahapalika, Varanasi sanctioned the prosecution for the offence under Section 7/16 of the Act. THE complaint was filed on 6th January, 1981 by the Food Inspector. A copy of the report of the Public Analyst was sent to the applicant as required under Section 13 (2) of the Act on 9th March, 1981, on the request of the applicant the sample kept with the Local Health Authority" was sent by the court for analysis to the Central Food Laboratory, Calcutta. THE Director, Central Food Laboratory on 20th May, 1981 concurred with the report of the Public Analyst and found the sample adulterated for presence of kesari Dal. THE prosecution examined B. K. Singh, Food Inspector, P.W. 1 in support of its case. THE applicant admitted prosecution story so far as taking of sample, dividing in three parts and keeping in sealed phials. He also admitted seal on the samples and his signatures. He also admitted the notice by Food Inspector and the receipt and signatures. He also admitted the report of the Public Analyst. THE only defence put by him was that he had sent for grinding unhusked grounded chana and when it was received from the flour mill its sample was taken which was found to be adulterated. He examined Jawahar, D.W. 1 in defence to prove that before his grounded chana was put for grinding bejhar {a mixture of kesari and chana) had been grinded in the flour mill and thus a small proportion was found in the grounded chana of the applicant which was put for grinding immediately thereafter. THE learned Magistrate did not accept the defence of the applicant and accepting the prosecution case convicted and sentenced him as mentioned above. THE applicant remained unsuccessful in appeal also. Hence this revision.

(3.) THE applicant contested the opinion of the Public Analyst and requested for sending the sample to the Central Food Laboratory for re-analysis but the report of the Public Analyst was not disputed on any other basis. It was not the case of the applicant at any stage: that there was tampering with the sample collected during transit. THE opinion of the Director, Central Food Laboratory also was against the applicant and the sample of Besan was found adulterated. In these circumstances, in my opinion, it is not open for the applicant to challenge the prosecution case on the ground of breach of Rule 18 of the Rules. Even from the defence set up by the applicant it appears that he proceeded with the admission that Kesari was mixed with the sample of Besan collected but he tried to explain it placing fault with the flour mill owner. In these circumstances also the alleged absence of evidence showing compliance of Rule 18, in my opinion, is of no consequence.