JAIRAM BHAOSINGH Vs. STATE OF M.P.

JUDGEMENT

(1.) HEARD learned counsel. I have also perused the impugned judgment by the Sessions Judge and gone through the judgment of the trial Court as well as other relevant evidence made available to me from the brief of the learned counsel.

(2.) IT has been urged that the petitioner could not get the opinion of the Director, Central Food Laboratory as provided by section 13 (2) of the Act as the sample of milk must have decomposed on account of delay. It is, however, pertinent to point out that the petitioner did not make any application under section 13 (2) of the Act for getting the sample examined by the Director, Central Food Laboratory, Calcutta. The sample was taken on 14 -11 -73. It was sent for analysis to the Public Analyst on 29 -11 -73 and the Public Analyst prepared the report on 30th January 1974. The complaint was filed on 7 -5 -74. Assuming that there was delay in filing the complaint, it was nevertheless the duty of the accused if he entertained any doubt as to the report of the Public Analyst to have made an application under section 13 (2) of the Act. The learned counsel relied upon Municipal Corporation of Delhi v. Ghisa Ram : 1967 M P L J 640 (S C)=A I R 1967 S C 970. However, it may be pointed out that in that case apart from inordinate delay in filing the complaint, the sample of the milk taken from the vendor accused had, in fact, been sent to the Director on the application of the accused but the Director had reported that the sample had become highly decomposed and could not be analysed. It is also evident from that case that the Food Inspector had not taken the precaution of adding preservative. No such defence is available to the petitioner in the present case because not only there is evidence that preservative was added but the petitioner had not even made an application to send the sample to the Director, Central Food Laboratory. The decision in Municipal Corporation of Delhi v. Ghisa Ram (supra) has, therefore, no application to the facts of this case.

(3.) IT is then argued that the sentence of two years is excessive. It may be pointed out that the milk in question was found to be highly adulterated inasmuch as 45% was added water and solid non -fat contents were found to be 4.9% whereas they should have been 9%, the milk being buffalo milk. The lower appellate Court has observed that there is no circumstance for showing, leniency to the petitioner inasmuch as he is a milk vendor, aged 35 years. The maximum penalty prescribed for such an offence is six years and minimum is 6 months. In these circumstances, I am unable to come to the conclusion that the sentence of two years awarded by the trial Court and upheld by the appellate Court is excessive or improper.