BADRI PARSAD Vs. STATE

JUDGEMENT

(1.) This revision is directed against the order and judgment dated Sept. 8-1977 of lllrd Addl. Sessions Judge, Jalaun at Orai in Criminal Appeal No. 30 of 1977 confirming the order of the learned Magistrate by which the applicant was convicted under Sec. 7(1)/16 of the Prevention of Food & Adulteration act and sentenced to six months R. I. and to pay a fine of Rs. 1000.00 and in default of payment of fine he was to undergo further R. I. for 6 months. On 23-11-74 the Food Inspector inspected the shop of the applicant in village Itaura of police station Kedaura. He was found selling mustard oil. The Inspector took the sample of the same and gave the price, obtained receipt and issued necessary notice. The sample was sent to the public analyst who reported on 8-1-1975 that the sample contained a small proportion of linseed oil. He gave the percentage of linseed oil 16.8 per cent. The applicant was prosecuted on the basis of a complaint filed under the order of the Health Officer. He denied the prosecution allegation. The learned Magistrate, however, convicted and sentenced him as stated above. In appeal that order was confirmed.

(2.) At the time of admission reliance was placed on the case of Ayodhiya Prasad Vs. State, 1977 A.W.C. 195 That case was decided by Hon, K. B. Asthana C.J. who took the view that mustard oil and linseed oil both being edible oils their mixture could not be considered to be adulterated. The learned Sessions Judge has taken into consideration rule 44(e) had taken the view that this rule was not considered by Honourable the Chief Justice. The learned Sessions Judge was certainly bound by the authority of this Court. However, I was inclined to agree with the reasonings given by the learned Sessions Judge in taking a different view. I, therefore, referred the matter to a larger Bench for reconsideration of the law as laid down in Ayodhya Prasad Vs. State. The finding of the Division Bench have now been received. The case of Ayodhya Prasad Vs. State had been overruled in view of rule 44(e). The Division Bench took the view that the mixture of edible oil up to the limit of 7% with mustard oil is considered to be permissible, under rule 5 item - A 05.15 of Appendix 'B'. In the present case mixture of linseed oil was up to 16.8 per cent and such mustard oil would be deemed to be adulterated.

(3.) The learned counsel for the applicant, has argued that the linseed was defined under the rules as 'Tilli-ka-tel' while the learned Magistrate had found that the mixture was with 'Alsi-ka-tel'. It may be that the learned Magistrate had wrongly translated mustard oil but that would make me difference in view of the report of the Public Analyst. The charge was only that the applicant was selling adulterated oil of Sarson. The learned counsel for the applicant has also made an application for summoning the public analyst in order to explain the alleged ambiguity that towards the end it was written that only small quantity of mustard oil was mixed while in the body percentage was given as 16.8. do not think that there is any such ambiguity because in the opinion of the Public Analyst percentage of 16.8 would be considered small quantity although under the law it would be an offence. I, therefore, do not consider it proper to summon the Public Analyst for this purpose at the revisional stage. There can thus be no doubt that the applicant was rightly convicted.