SHEO PRASAD Vs. STATE

JUDGEMENT

(1.) THE applicant has been convicted under Section 7/16 of the Prevention of Food Adulteration Act and sentenced to 6 months' R. I. and a fine of Rs. 1000/-. His conviction and sentence has been maintain ed In appeal by the Sessions Judge, Aligarh, hence this revision. I have heard learned counsel for the applicant and have also perused the impugned orders. I have, also gone through the record of the case. According to the prosecution case a sample of Ajwan was purchased by the Food Inspector at 1 p. m. on 6-8-1975 from the applicant in accordance with the procedure prescribed by law. One of the sample phials was sent for analysis to the Public Analyst, which disclosed that inorganic matter exceeded the maximum prescribed limit of 2 percent, therefore, the sample was adulterated. After obtaining sanction, the applicant has been prosecuted and convicted as above. Both the Courts below on a consideration of the evidence on the record and the circumstances of the case have come to the conclusion that the guilt of accused is fully established. I do not find any illegality or perversity in the findings concurrently recorded by the subordinate Courts to warrant interference in revision. Counsel for the applicant has submitted that he had filed an application for summoning the public Analyst for cross examination and that he has been denied this opportunity. I have carefully seen the application, paper No. 5 on the record. It is true that in this application a prayer is made for summoning the Public Analyst, but the Court has allowed that prayer on 29-V-1975 subject to the payment of the expenses of the expert. It appears that the accused was not prepared to pay the expenses because an endorse ment has been made on the application itself by his counsel Sri L. N. Mathur that the client will not be able to pay expenses as it is beyond his means. It is very strange that without the office giving a report as to what would be the actual expenses incurred in summoning the Public Analyst from Lucknow to Aligarh, learned counsel as made this endorsement. In any case, the position is that the report of the Public Analyst has been made admissible in law under Section 13(3) of the P.P. Act. It is, therefore, not necessary for the prosecution to produce the Public Analyst as prosecution witness. It was open to the accused to have produced him as his defence witness. As a matter of fact, permission has been granted by the Court. THErefore, the accused, if he was keen about the production of this witness should have paid the expenses and got him before the Court for cross examination. I have carefully seen the interrogations which have been incorporated in the aforesaid applicaiion. All these questions have been replied by the Food Inspector already in his cross examination and to me it appears that this application for summoning the Public Analyst on the date of judg ment was nothing else but a frivolous application. In any case, I must repeat again that the Court below allowed the application subject to the expenses being borne by the accused. In these circumstances I am unable to hold that any injustice has been caused to the applicant by the non-production of the Public Analyst for which he is himself responsible. Counsel for the applicant has next argued that there has been a viola tion of the mandatory provisions of Section 19 (7) of the P. F. Act, inasmuch as two independent witnesses of the locality have not been summoned. He has placed reliance upon the Supreme Court decision reported in 1974 S. C. page 789, in this connection. I would like to observe that from the state ment of the accused, it is clear that he has admitted the taking of the sample of Ajwan on the date and time in question from the Food Inspector. Originally he had taken up a plea that the Ajwan of which a sample was taken was sold by him as cattle- fodder. Subsequently in his statement under Section 313 Criminal Procedure Code, he appears to have taken up the plea, that he was not responsible for the adulteration in the sample. In other words, he perhaps intended to plead warranty for which no evidence has at all been led. Further, there is no question in cross-examination on behalf of the accused to show that there were other witnesses present in the locality who have not been produced and have been withheld. From a scrutiny of the statement of the Food Inspector, I do not find any reason whatsoever for arriving at the conclusion that he had any motive for falsely implicating the applicant. His evidence is cogent and convincing. I find no cause why I should reject the statement merely because another independent witness has not been produced to corroborate him. Both the Courts below have rightly relied upon his testimony in proof of the prosecution case. Learned counsel for the applicant has also assailed the report of the Public Analyst and urged that in his report, he should have given the details of inorganic extraneous matter. Inorganic extraneous matter has been defined under the Rules as including dust, dirt, stones and lump of earth. From a perusal of the report of the Public Analyst, I find that the result of analysis is that it contained organic extraneous 2-1 per cent, inorganic extraneous, 6-8 per cent, and Ajwan 91-1 per cent. He was of the opinion that inorganic extraneous matter exceeded the maximum permissible limit of 2 percent. Obviously, this maximum permissible limit is a limit prescribed under the Rules framed under the Prevention of Food Adulteration Act. I have no reason to presume that in judging the percentage of inorganic extraneous matter in the sample in question, the Public Analyst travelled beyond the scope of his inquiry in considering other organic matter not included within the rules as argued by the counsel for the applicant. THE law prescribes certain standard, and also gives the permissible limit of organic and inorganic matter. If the sample does not conform to it, the offence is complete. In these circumstances, I am unable to accept this contention of the applicant's counsel. Lastly the applicant's counsel has argued on the question of sentence. He has urged that the applicant is not a previous convict. That may be so, but the position is that offences under the P. F. Act are becoming very rampant. THE sample in question was mixed with inorganic matter which included dirt, dust lumps of earth beyond the permissible limit. Such a mixture cannot be dealt with leniently. I do not find sufficient extenuating circumstances for reducing the sentence. THEre is no merit in this revision which is hereby dismissed. THE applicant is on bail. He shall be taken into custody forthwith to serve out the unexpired portion of the sentence of imprisonment.