KAILASH GIR Vs. V K KHARE FOOD INSPECTOR

JUDGEMENT

(1.) BY this petition, Kailash Gir seeks to have the judgment of the Additional Sessions Judge, Shajapur, sitting at Shujalpur in Criminal Appeal No, 54 of 1978, confirming the judgment of the Judicial Magistrate First Class. Shujalpur in Criminal Case No. 433 of of 1976, convicting the petitioner for preventing the Food Inspector respondent No, 1, Mr. V. K. Khare, from taking a sample of milk, the offence punishable under Section 16 (1) (c) of the Prevention of Food Adulteration Act (hereinafter called the Act) and sentencing him to rigorous imprisonment for six months with Rs. 1,000/- fine and in the alterative further rigorous imprisonment for three months, revised.

(2.) ON 7-8-1976 at about 7 a. m. near village Bhilkhedi, while the Food Inspector V. K. Khare (P. W. 1) apprehended the petitioner, who was carrying about four kilograms of milk contained in a canister on his cycle, and asked him to produce his licence authorising him to deal in milk and to sell him sample of milk so that he could get it analysed by a public Analyst by handing over to the petitioner form VI (Ex. P. 1), the petitioner without either producing a licence or selling the sample of milk to the Food Inspector hastily turned his cycle towards Shujalpur and with the milk went away. The Food Inspector in the presence of two witnesses including Savarlal (P. W. 2) prepared the memorandum (Ex. P. 2) and ultimately on these facts the petitioner charged with and tried for prevent- ing the Food Inspector from taking a sample punishable under Section 16 (1) (c) of the Act. His defence was that he had been falsely implicated. He examined two witnesses one of them Mansingh, an attesting witness to the memorandum (Ex. P. 2) and Anr. Ganpat tending to prove that the petitioner did not carry on the business of selling milk. The learned Judicial Magistrate First Class, Shujalpur, instead of framing a charge under Section 16 (1) (c), framed a charge inter alia under Section 16 (1) (b ). He relying upon the two witnesses convicted and sentenced him. The appeal by the petitioner to the Additional Sessions Judge, Shajapur failed.

(3.) THE first contention for the petitioner is that the charge framed being inter alia under Section 16 (1) (b) of the Act, the petitioner could not have been convicted for violation of Section 16 (1) (c) of the Act.