NAGAR PALIKA NIGAM, RAIPUR Vs. GENDA

JUDGEMENT

(1.) The prosecution case is that on 9-8-1975 Food Inspector, MH. Bari (PW 1) purchased sample of 375 gm linseed oil from the shop of the respondent in Hospital Ward, Raipur, after giving the due intimation and paying the price, which he divided in three parts and sealed in three clean bottles one bottle was given to the respondent one Bottle was sent to the Public Analyst and the third bottle was retained for being produced in the Court. The Public Analyst, after analysis found the sample to be adulterated. A complaint was filed and defence taken was of denial. One defence witness has been examined to show that though the respondent was dealing in oil, the sample taken from the respondent was not for human consumption and the oil was being sold for preparation of Medicine and for giving to cattle The trial Magistrate on recording evidence Bind that the statement of the Food Inspector Bari (PW 1) has not been corroborated by the two panchas Pooran (PW 2) and Barilal (PW 3) that the sample was taken from the shop of the applicant, inasmuch as the two panchas were not declared hostile. Accordingly the respondent has been acquitted.

(2.) I am of the opinion that the findings of the trial Magistrate are perverse and the acquittal deserves to be set aside.

(3.) In fact, the trial Magistrate had given contradictory finding, in as much as at one place he held that it is not proved that the sample was taken Bun the shop of the respondent while at another place the trial Magistrate held that necessary formalities were performed by the Food Inspector and report of the Public Analyst was obtained. Food Inspector Bari (PWB has proved that he gave a notice in Form VI (Ex. P.3) to the respondent and summons to Panchas (Ex. P.2) and purchased 375 gms. of linseed from the respondent vide Ex. P.1 which bears his signature and that of the Panchas ; one sample bottle was forwarded to the Public Analyst vide Ex. P.4 and Ex. P.5 in the report of the Public Analyst saying that the sample below the standard. A copy of the report of the Public Analyst was forwarded to the respondent vide Ex. P.6. The statement of the Food Inspector has not been seriously challenged. Only cross examination is that the seizure was from the residence and not from the shop of the respondent and that the oil was kept for preparation of soap. Pooran (PW 2) has admitted that he was called while sample was being taken but later on said that after the bottles were filled up he was called. He could not say as to sample of which oil was taken nor the quantity. He admitted his signature on the document. He is not impetrate but claims that he has not read the document because signing, it. He denied that his signatures were taken in the Municipal O&d Another Panch Barilal (PW 3) has a shop opposite to the shop of the respondent and knows that sample was taken but he does not remember the quantity of the sample and also knows that sample of linseed oil was taken the respondent was paid in his presence and then the bottles were seal But in cross-examination stated that he was called after the bottles were filled up. He denied that his signature was taken 2 days thereafter. The respondent in his statement under section 313 of the Code has only stated that 'NAHI MALOOM' for all the questions. The prosecution witness have duly proved that the respondent is a dealer in oil and this is also denied by the respondent. The defence witness Hanuman Prasad (DW I) has only classified that the oil was not meant for human consumption while this is not the stand taken by the respondent. Therefore, it duly proved by the prosecution that the respondent sold linseed which has been found to be adulterated and he has no explanation offer.