STATE Vs. SOHAN LAL

JUDGEMENT

(1.) The State case come up in appeal against the judgment of II Additional Sessions Judge, Mathura. Sohan Lal opposite party was prosecuted under Sec. 7/16 of the Prevention of Food Adulteration Act and was sentenced by the trial Court to undergo rigorous imprisonment for six months and he was also ordered to pay a fine of Rs. 1200.00 in default further rigorous imprisonment for six months.

(2.) The prosecution story was that on 27.5.1971 at 9.30 a m. in mohalla Generalganj, Mathura, Food Inspector P.B. Tewari saw the appellant exposing buffalo milk for sale. The Inspector purchased 660 ml. as sample and gave a notice Ext. Ka-1 to the opposite party. The milk was put in three bottles and sealed. From the report of the Public Analyst, it appears that the milk was deficient in fat content by about 20 per cent. The opposite party admitted that the milk was purchased from him. His main defence was that the milk which he was possessing was cow milk and not buffalo milk. As already noted, the trial Court convicted the appellant but on appeal the learned Sessions Judge observed that there was no evidence on record to show that the opposite party was selling buffalo milk and, therefore, the order of conviction was set aside.

(3.) I have heard the learned counsel for the parties and have gone through the evidence on record. In my opinion, the lower appellate Court has not correctly appreciated the legal position and has also misread the evidence. Notice Ext. Ka-1 bears the signature of the opposite party and in this notice it has been specifically noted that the sample taken was that of buffalo milk. When questioned about this notice, the opposite party pleaded that his signature was obtained on a blank paper. This plea is obviously untenable. The notice clearly shows that it was prepared in duplicate and Ext. Ka-1 is a carbon copy. It is, therefore, impossible to believe that the contents of this notice were written afterwards. The opposite party, being a literate person, it cannot be said that he was not aware of the contents of this notice. It is also wrong to say that the prosecution did not lead any evidence on the point. The learned Sessions Judge has observed that neither the Food Inspector nor the Jamadar said anything on the point. This is an incorrect observation because 1 find that both these witnesses did say that the opposite party was exposing buffalo milk for sale. Reference has been made to a case reported as Khadu Vs. State, 1971 All. Cri. R. 318. In that case, the Food Inspector had nowhere said that it was buffalo milk or mixed cow and buffalo milk while the accused had stated that it was cow milk. In these circumstances it was held that the report of the public analyst based on the standard prescribed for buffalo milk could not be taken into account. But in the instant case, the evidence is there to show that it was buffalo milk. The learned Sessions Judge has, therefore, misapplied the principle laid down in the aforesaid case to the facts of the instant case. The conviction of the opposite party as recorded by the trial Court cannot be said to be erroneous on any other ground. I, therefore, think that the acquittal of the opposite party will have to be set aside.