JITAI Vs. STATE

JUDGEMENT

(1.) This revision has been filed by Jitai, the applicant, challenging his conviction under sections 7/16 of the Prevention of Food Adulteration Act (briefly stated as the Act), sentencing him to six months' R.I. for the breach of having sold adulterated milk to the Food Inspector on 31-10-1971.

(2.) The case of the prosecution is that when Jitai, the applicant, was crossing Ilahi Bagh Road and carrying two canisters on his cycle, the Food Inspector disclosed his identity to Jitai and purchased 660 mls of milk at the rate of Rs. 1.25 per litre. He gave notice and kept the sample in three sealed bottles prepared in Exhibit Ka-1 and thereafter, sent the same to the public analyst. The public analyst appears to have examined the same and thereafter prepared a report on 2-12-1971, finding that the milk sent to him was deficient in its solid contents. The applicant was, thereafter, prosecuted by the Food Inspector. He pleaded not guilty asserting that the milk was not taken by the Food Inspector from him on 31-10-1971. The Magistrate accepted the case of the prosecution and finding that the milk sold by Jitai on 31-10-1971 to the Food Inspector was deficient and not in accordance with the standard prescribed by the Act, found him guilty of the offence and on this finding the applicant was convicted under sections 7/16 of the Act and was sentenced to eighteen months' R.I. Aggrieved by the order of the Magistrate, the applicant preferred an appeal before the Sessions Judge. In appeal his conviction was maintained, but the sentence was reduced from eighteen months' to six months' R.I. Feeling aggrieved by the aforesaid judgment, the present revision has been filed by the applicant.

(3.) The main contention urged by the learned counsel for the applicant was that as the prosecution failed to establish that necessary quantity of formaline was added by the Food Inspector to the milk obtained from the applicant on 31-10-1971, therefore, the conviction was bad in law. Learned counsel for the applicant invited my attention to Rule 20 of the Rules framed under the Act and urged that the prosecution could succeed only if it had established that the substance added to the milk purchased from the applicant on 31-10-1971 was in the same quantity which was prescribed by the aforesaid Rule. It is the common case of the parties that out of three bottles which was prepared on 31-10-1971 one was given to the applicant while the second one was sent to the public analyst, and the third one was retained by the Food Inspector himself The Food Inspector, however, did not produce the same in the court. The question, therefore, arises as to whether the preservative added to the sample was in the same quantity which is permitted under Rule 20. In order to establish that formaline added was in the same quantity, the Food Inspector in his statement before the Magistrate stated that 16 drops of formaline were added by him to each bottle prepared on the aforesaid date. Admittedly, the addition of 16 drops of formaline was in accordance with the rules. He was cross-examined by the defence on the said question, but nothing could be extracted which could shake his testimony. Accordingly, the evidence brought on record by the prosecution established that the prescribed quantity of formaline had been added by the Food Inspector to the milk taken from the applicant on the aforesaid date. In these circumstances, it appears to me that the fact that the bottle which had been retained by the Food Inspector was not produced by him in the court at the trial, was of no consequence.