NAGAR SWASTHYA ADHIKARI Vs. NAIM CHAND

JUDGEMENT

(1.) NAIRN Chand was convicted by the Special Judicial Magistrate, Allahabad for an offence under Sections 7 (i), 16 (1) (a) (i) of the Prevention of Food Adulteration Act, but has been released on probation under the provisions of the Probation of Offenders Act, 1958 and directed to execute a bond for a period of ten years to appear before the court if and when called upon to do so to take sentence of imprisonment on default. Aggrieved, thereby the Nagar Swasthya Adhikari, Nagar Mahapalika, Allahabad filed an application under Section 377/378 Cr. P. C. for leave to Appeal. Leave was granted by this Court on 16th Oct. 1978. In these circumstances, this appeal has come up before me for decision.

(2.) NONE of the parties have argued this appeal on merits. It have been addressed only on the question of sentence and therefore, I shall confine myself to the point argued before me. The proved facts in the case are that the accused was selling mixed milk of cow and buffalo at about 1. 30 p. m. on 24-11-1975 in Khuldadad. The Food Inspector Sri Rajendra Prasad, after disclosing his identity to the accused, purchased a sample of milk for analysis in accordance with the procedure prescribed by law. The milk was divided into three equal parts and duly packed, sealed and labelled in three separate phials. One phial was given to the accused. Out of the two phials in possession of the Food Inspector, one was sent for analysis. The public Analyst reported that the sample was deficient in fat contents by 100% while non-fatty solid contents were 9. 2%. He thus found the milk adulterated. After obtaining necessary sanction for prosecution a complaint was filed against the accused, who has been prosecuted and convicted as above.

(3.) COUNSEL appearing on behalf of the Nagar Mahapalika, Allahabad has urged that the Judicial Magistrate has erred in law in giving the benefit of Probation of Offenders Act, 1958 to the accused-applicant. He has advanced a number of arguments in this connection, which, I shall deal with hereafter.