MUNICIPAL CORPORATION UJJAIN Vs. INDRA KUMAR

JUDGEMENT

(1.) THIS is an appeal preferred by the appellant against the acquittal of the respondent from a charge under section 7 read with section 16 of the Prevention of Food Adulteration Act. The respondent was convicted for the alleged offence by the Chief Judicial Magistrate, Ujjain and sentenced to imprisonment for nine months and fine of Rs 1,000 On appeal the learned Additional Sessions Judge acquitted the respondent from the charge levelled against him and therefore this appeal has been preferred after obtaining leave.

(2.) LEARNED counsel appearing for the appellant contended that the learned Court below was wrong in acquitting the respondent on the bas s of the statement of the public analyst Shri Saxena who was examined before the trial Court. Learned counsel contended that his report which is an evidence under section 13 of the Act should have been considered specially because according to the learned counsel, this witness (public analyst) admitted in his statement that he does not remember what procedure or test he applied in the case but the grievance made by the learned counse1 was that in further cross -examination he admitted that he did not perform the analysis properly and that he committed an error. He therefore contended, that the learned Court below was not right in acquitting the respondent on the basis of such a statement made by the public analyst. 3. Learned counsel for the respondent on the other hand contended that where the evidence of the public analyst itself discloses that he did not perform all the tests which should have been performed and where he himself admits that because he did not perform the tests fully the result of his analysis is affected and he has committed this error, in face of this evidence and the result mentioned in the report of the public analyst which could not be read in evidence as required under section 13, the learned Court below was right in acquitting the respondent. 4. The report of the public analyst which is Ex. P -9 shows that the total ash and insoluble ash was above the standard and this was the reason why the public analyst opined that the sample of Dhaniya i.e., corriander powder was below the standard. The public analyst in his statement admitted that in order to determine the total ash the process of eliminating carbon has to be repeated and this has to be repeated till the constant weight comes as according to him it is only after the carbon is removed the total ash could be determined. He also admitted that he only repeated this test twice and did not bother about the effect and it is because he did not repeat the test, the result may be erroneous. It is also admitted that insoluble ash will always depend upon the total ash determined. Under these circumstances the evidence of the public analyst itself shows that he did not perform the test as required and thereby has committed an error which has resulted in an erroneous result. Apparently therefore the report of the public analyst according to his own evidence is erroneous and on that basis no conviction could be based. Learned counsel appearing for the appellant contended that under section 13 of the Act the report of the public analyst could be read in evidence for the facts stated therein and therefore he wanted to contend that inspite of the evidence given by the public analyst his report should be accepted. 5. Section 13 (1) of the Prevention of Food Adulteration Act provides that: