LAXMI NARAIN GUPTA Vs. STATE OF U P

JUDGEMENT

(1.) THE applicant has been convicted under Section 7/16 Prevention of Food Adulteration Act and sentenced to six months R. I. and a fine of Rs. 1000/- by the Additional Chief Metropolitan Magistrate, Corporation, Kanpur. His conviction and sentence have been upheld in appeal by the Sessions Judge, Kanpur. Hence this revision.

(2.) I have heard counsel for the parties and have also very carefully perused the record of the case. According to the prosecution the Food Inspector visted the premises of the applicant at 128/20-H2 Block, Kidwai Nagar, Kanpur on 30th July 1976 at about 2 P. M. The applicant was present there. Sealed tins of Ganesh Bahar were on display for sale. The Food Inspector after disclosing his identity purchased six tins of Ganesh Bahar on payment of requisite price. The tins were sealed in accordance with law. The ingredients of the Masala were printed on the Dibba. The sample was sent to the Public Analyst for report, which indicated that it contained magnesium 0.6% and carbonate 1. 28%. These ingredients were not included in the ingredients appearing on the tin container. After obtaining sanction the applicant has been prosecuted and convicted as above.

(3.) THE main question which has been argued by the applicant's counsel is that the Sessions Judge has convicted the applicant because he has failed to prove that he had obtained the approval of the Central Committee for Food Standards with respect to the two added ingredients in the sample, namely, magnesium and carbonate. He urges that this point was taken for the first time by the appellate court and adequate opportunity was not given to the applicant to prove his case. He urges that it was the duty of the prosecution to have taken up this case at the very initial stage and to put question to the accused under Section 313 CrPC in that connection so that he may have had adequate opportunity to defend himself on that score. I have carefully perused the statement of the Food Inspector in this connection. It is true that he admitted in corss-examination that the applicant had told him that the tins were not complete for supply and that the other tins which were ready for supply had labels on them. For purposes of arguments the Sessions Judge accepted the position that paper labels declaring all the ingredients of the Masala including magnesium and carbonate were available with the applicant and had to be pasted on the tins which were taken as sample by the Food inspector. Yet, inspite of it the Sessions Judge was of the view that the accused could not get the benefit of these circumstances because he had failed to prove that he had obtained the approval of the Central Committee for Food Standards for using Magnesium and Carbonate as the ingredients of Ganesh Bahar Masala. Rule 37-A of the Prevention of Food Adulteration Rules, 1955 runs as follows :