STATE OF H.P. Vs. BASIR

JUDGEMENT

(1.) The present respondent was prosecuted under section 7/16 (1) (a) (i) of the Prevention of Food Adulteration Act (hereinafter to be called as the Act) for selling adulterated milk. He was carrying about 40 kg of Milk for the purpose of sale in September, 1987 at Nurpur, where the Food Inspector, in accordance with law, purchased sample of milk from the respondent for analysis - Public analyst opined that percentage of milk fat was deficient by 12% and the percentage of milk solids not fat was deficient by 41% than minimum prescribed standard. The respondent -accused before the trial Magistrate stated that he was totally innocent and sample of milk was taken without his consent by the Food Inspector and that milk carried by him was not meant for sale to the general public but it was for his personal use and he was carrying it from his field to his house. 2 The trial Magistrate, acquitted the accused and the State has assailed the said acquittal order, in the present appeal on various grounds.

(2.) As referred above, simple case of the accused, as put up before the trial Magistrate had been that he was carrying that milk for his own use to his house and without his consent sample was taken by the Food Inspector. The trial Magistrate, has not looked into this aspect of the matter but acquitted the accused on the sole ground that the complainant has failed to establish that before taking of sample, milk was not made homogeneous by stirring the same. According to the learned trial Magistrate, as this fact was not proved legally which created doubt and as a consequence thereof accused was given benefit of doubt and acquitted.

(3.) It is correct that accused has not taken specific defence that milk was not stirred at the time of taking of sample but such a defence, if it is available from the complainants evidence, accused is not legally debarred to avail that defence in his support. But in the present case facts reveal otherwise, which aspect would be taken up at a later stage.