NAMDEO LAXMAN MULEY Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) The revision petitioner-original accused challenges the order of the learned Additional Sessions Judge, Aurangakad, dismissing his appeal against the order of the learned Judicial Magistrate, First Class, Aurangabad convicting him for an offence under section 2 (1) (a) read with with section 16(1) (a) of the Prevention of Food Adulteration Act,1954, and sentencing him to suffer R. I. for six months and to pay a fine of Rs. 1000/- Briefly stated the prosecution case is as under : On August 29, 1975, at about 8 45 a. m. SK. Hameed ( P. W. 1 ) the Food Inspector in charge of the cantonment area Aurangabad who knew the accused as a reguler dealer in milk approached him and took sample of 660 ml. of milk which according to the accused was mixed milk of cow and buffalo. The sample was sent to the Public Analyst who by his report Ex. 20 reported that the sample contained 4 percent fat, 5. 7% solids not fat and 32. 9% added water and, therefore, It was adulterated. On these facts the accused was prosecuted. The accused pleaded not guilty to the charge. His defence was one of total denial, For proof of its case against the accused, the prosecution examined SK. Hameed (P. W. 1) the Food Inspector and P. W 2 the panch. The prosecution also produced the relevant documents. Although the panch could not identify the accused as the very person from whom the sample was taken, the learned Magistrate belived the evidence of the Food Inspector and he convicted and sentenced the accused as stated at the outset of this judgment.

(2.) That conviction was challenged before the learned Sessions Judge. One of the grounds on which the conviction was challenged was the Food Inspector committed breach of rule 18 of the prevenion of Food Adulteration Rules. The learned Judge rejected that contention by observing as under in paragraph 20 of his judgment. " The learned Advocate for the accused has then urged that the food Inspector violated rule 18 of the Prevention of Food Adulteration Rules in as much as there is no evidence on record that the copy of memorandum and the copy of the specimen seal were sent separately to Public Analyst as required under Rule 18. Now it is, true that food Inspector has not deposed that fact specifically. However, that fact is quite apparent from the documentary evidence on record. In the report of the Publice Analyst Exh. 20, there is a specific mention that specimen impression of the seal was separately sent by the food Inspector to the Public Analyst. Besides, there are two receipts at Exh. 19 First part of the receipt is in respect of the original memorandum along with the sample, while the second part of the reeipt is regarding the duplicate memorandum and the specimen of the seal. If the duplicate memorandum and speciman seal were not sent separately, two separate receipts would not have been passed, It is urged on behalf of the defence that if the specimen of the seal and duplicate memorandum were sent separately, two separate receipts on different papers would have been passed and not on one paper, as is done in this case at Exh. 19. I am unble to accept that contention. It is immeterial whether two receipts are passed on one paper or on different papers, In brief, therefore, I am satisfied that the duplicate memorandum and specimen of the seal were sent separately by the Food Inspector It cannot, therefore, be said that the Food Ins. had violated rule 18 of the Prevention of Food Adulteration Rules The other contentions which were also raised were rejected. Consistently with that view he dismissed the appeal. The correctness and propriety of the said conviction is challenged in this revision application.

(3.) Mr. Agarwal, learned Advocate for the accused his assailed the judgment of conviction on the ground that the learned Magistrate has overlooked the evidence of the Food Inspector himself in arriving at the conclusion that there was no breach of rule 18. Mr. Homballcar, learned Public Prosecutor tried to support the judgments of conviction by relying on the provisions of sub-rule ( 1 ) of Rule 7 of the Prevention of Food Adulteration Rules and submitted that there is a presumption that the Food Inspector had followed the prescribed procedure, so also the Public Analyst had complied with the rules. I find considerable force in the submission of Mr. Agarwal. I have already set out the reasoning of the learned Sessions Judge in paragraph 20 of his judgment for coming to the conclusion that rule 18 has not been violated, it is significant to note that the learned judge has observed in that paragraph that it is true that the Food Inspector has not deposed that the Copy of memorandum and that the copy of the specimen seal were not sent separately to Public Analyst as required under rule 18. Even as appears from the observations in that very paragraph, because there is a mention in the printed report (Ex. 20) that the copy of the memorandum and the copy of the specimen seal were sent separately and because at Ex. 19, there are two receipts acknowledging the receipt of the original memorandum along with the sample and recording the memorendum and the specimen of the seal respectively, he concluded that notwithstanding the fact that there is no evidence furnished by the Food Inspector about the compliance of rule, 18, there is no violance of that rule. But then in coming to that conclusion the learned Judge has clearly overlooked the following statement of the Food Inspector in his evidence in chief itself. The Food Inspector has stated, One sealed sample bottle has been sent to Public Analyst along with the memorandum and specimen impression of the seal in duplicate on 30-8-1975 under a forwaing letter. Ex. 16 is the same forwarding letter Ex 17 is the memorandum and Ex 18 is the specimen of the seal. " It is clear from the unequivocal statement of the Food Inspector himself that both the sample bottle and the memorandum and specimen impression of the seal in duplicate were forwarded with the same covering letter Ex. 16. Now when we turn to Ex, 16 which is also overlooked by the learned Sessions Judge, it reads as under: "I am herewith for warding to you the copy of the memorandum dated 30.8.1975, a specimen impression of the seal used to seal the packets and bottles of the sample along with the sample box. Kindly acknowledge the receipt Both this covering letter and the candid statement made in chief by the Food Ins. himself would show that the Food Inspector has sent the sample and also a copy of the memorandum and specimen impression of the seal together & not separately There is no scope for reading the evidence of the Food Inspector as was attempted by the learned Sessions Judge that he had sent them separately. Having regard to his uneqivocal admission which is corrborated by his covering letter (Ex. 16 ), no impoitance could be attached to the fact that there are two receipts at Ex- 19 or that in Ex. 20, the report in form III, under Rule 7 (3) there is a printed materinl to the effect, ''The seal fixed on the container of the sample tallied with the specimen impression of the seal separately sent by the Food Inspector." It is only in the absence of any evidence that there could be a presumption about official acts being done according to the rules For instance, in the absence of any evidence it could have been said that the Food Inspector had sent the sample under rule 17 and the copy of the memorandum and the specimen impression of seal under rule 18 separately. This court has held that the expression separately occurring in rule 18 does not mean that they should be sent necessarily in two packets or with two separate messengers. What is essential is that as required by rule 17, the container containing the sample and the memorandum in form VII should be sent together even as a copy of the memorandum and a specimen impression of seal required under rule 18 also should be sent together But it is perfectly open to the Food Inspector to have separate packages for sending container and the memorandum under rule 17 in one Packet and the copy of the memorandum and the specimen impression of the seal under rule 18 in a separate cover securely packed seal & it is perlectly open to him to sent these two packets in one packets but the essence of the combined operation of rules 17 and 18 is that the sample and the specimen seal and copy of the memorandum must be sent separately as secured items. Since it is clear from the evidence of the Food inspector himself that he has not done so and since we are concerned with a criminal case, no conviction can be based on surmise as has been done by the learned Sessions Judge in paragraph 20 of his judgment.