THE STATE Vs. DAWOODBHAI VALLABHAI

JUDGEMENT

(1.) The Respondent (hereinafter referred to as "the accused") was prosecuted in the Court of the Additional Chief Metropolitan Magistrate, 9th Court, Bombay in Case No. 16/S of 1975 for the offence punishable under Sec. 16(1)(a)(i) of the Prevention of Food Adulteration Act, on the allegation that he on 9th of Oct., 1975 sold to Food Inspector of Bombay milk which was latter on analysis found to be adulterated. The learned trial Magistrate acquitted the accused on finding that the Food Inspector had failed to conform to the provisions of R.I. 16 of the Rules framed under the Act. It was also found that the Food Inspector had not given the report of the Public Analyst to the accused. For this he gave facile excuse that the proprietor of the shop was not traceable. This order of the learned Magistrate dated 25th of Nov., 1976 is sought to be challenged in this appeal.

(2.) Mr. S.B. Patil, the learned Public Prosecutor appearing for the State made an attempt to criticise the judgment of the learned Magistrate by contending that there is nothing in the record to show that there was the contravention of R.I. 16. The admission of the Food Inspector Joshi that lie did not carry any gum or adhesive or even measurement when he went to the shop cannot be used for drawing the inference that he did not seal the sample with adhesive. According to Mr. Patil it must be held that the procedure prescribed under R.I. 16 has been followed when the Food Inspector on oath mentioned that he had after dividing the sample into three different parts put them into glass bottles and that each bottle was wrapped in paper, labelled, tied and sealed in the presence of the accused. I am unable to subscribe to this interpretation which is being put on the evidence on record. The Food Inspector himself does not mention that the loose ends of the paper in which the container was put was fixed with any adhesive gum. I also find that the Food Inspector has failed to comply with the requirements of R.I. 17, inasmuch as, he has not put the container with the memorandum of the seal in the outer cover which in turn ought to be sealed.

(3.) The panch witness who is alleged to have witnessed this purchase of milk made by Food Inspector Joshi has given evidence on oath that the Food Inspector Joshi came to his shop on 9th Oct., 1975 and his signature was taken on some of the labels. He has unequivocably admitted that no labelling and sealing was done in his presence. The prosecution has not sought to treat him as a hostile witness by asking him questions in the nature of cross-examination. I do not see why the evidence of the panch should not be accepted. Moreover, there is no answer from Mr. Patil to the position that there is no explanation from Mr. Joshi why the report of the public analyst has not been given to the accused. Such a prosecution was doomed to fail and has naturally ended in failure.