NAGAR SWASTHYA ADHIKARI Vs. KANHAIYA LAL

JUDGEMENT

(1.) THIS is an appeal by the Nagar Swasthya Adhikari, Nagar Mahapalika, Agra, under Section 417(3) CrPC against the order dated 27-12-1972 of Sri Rahtu Singh, Magistrate 1st Class, Agra acquitting respondent Kanhaiya Lal under Section 7/16 of the Prevention of Food Adulteration Act (hereinafter referred to as the Act).

(2.) THE respondent was prosecuted under Sections 7/16 of the Act on the allegations that on 2-9-1971 Sri R. N. Dikshit (PW 1) Food Inspector at about 7.30 P.M. found the respondent selling mixture of cows and goat's milk. R. N. Dikshit aforesaid purchased 660 m.1. mixture of milk from the respondent for 90 p. and obtained receipt Ex. ka-2. He filled that mixture of milk in three phials equally, dropped 18 drops of formalin of 40% strength and sealed them. One of these phials was handed over to the respondent. He also prepared a report-Ex. ka-4 and form No. VII Ex. ka-3. THE remaining two phials with other papers were given to the Nagar Swasthya Adhikari. One phial was sent to the Public Analyst on 7-9-1971, who vide his report Ex. ka-5 reported that the sample was deficient in non-fatty solid content 437%. It showed 5.5% nonfatty solids. Accordingly the respondent was prosecuted.

(3.) THE prosecution case was that the respondent was found selling a mixture of cows and goats milk, which was not upto the standard prescribed. In the evidence, however, none of the two eye-witnesses viz. R. N. Dikshit (PW 1) and Chandan Singh (PW 2) stated that what they purchased was a mixture of cows and goats milk. THEir statement simply was that the milk was purchased from the respondent. THE analyst submitted his report against the respondent on the hypothesis that the milk purchased was a mixture of cows and goats milk. However, I find that there is a receipt Ex. ka-2 executed by the respondent himself, which contains an admission of his having sold a mixture of cows and goats' milk. It cannot be said that the evidence of the sale of cows and goats' milk is totally wanting !n the case, but I find two illegalities committed during the course of trial. THE charge framed against the respondent was that he was found selling a mixture of she-buffalo, cow and goats' milk. THE complaint filed against the respondent was for selling the mixture of cows and goats' milk. Under Section 20 of the Act,, the trial of the respondent for sale of the mixture of the milk of she-buffalow, cow and goat was barred, for the complaint had been filed for selling the mixture of cows and goats' milk. Even in the statement I under Section 342 CrPC the question put to the respondent was that he was found selling a mixture of milk of she-buffalow, cow and goat. THE respondent had not been prosecuted for the sale of the mixture of milk of she-buffalow, cow and goat. He was being prosecuted for the sale of the mixture of cows and goats' milk only. Neither the charge framed in the case was proper, nor was the respondent examined properly under Section 342. He was put questions on facts for which he was not being prosecuted. THE trial of the respondent was, therefore, illegal.