STATE OF HIMACHAL PRADESH Vs. KHEMTI

JUDGEMENT

(1.) This order will dispose of two criminal appeals, No. 36 of 1948 (State of H. P. v. Khemti) and No. 15 of 1984 (State of U. P. v. Magher Singh) which have arisen out of the judgments of acquittal passed by the learned Judicial Magistrate, 1st Class, at Dalhousie, both of the same date, that is, November 10,] 1983.

(2.) In appeal No. 36 of 1984, the facts were that the Food Inspector, Shri C. B. Sharma, on August 8, 1981, after following due procedure, purchased 660 m/s. of milk from the respondent, Khemti (hereinafter referred to as the accused) for Rs. 1.30 for the purpose of analysis and put it into three clean and dry bottles after adding preservative and sealing and stop peering them in accordance with the provisions of the Prevention of Food Adulteration Act, 1954 (hereinafter referred to as the Act) and Rules framed thereunder (hereinafter to as the Rules), sent one of the bottles to the Public Analyst for analysis while the other two bottles were sent to the Local (Health) Authority. The report or the Public Analyst then revealed that the sample of milk was adulterated since the presence of milk fat was deficient by 34% and the presence of milk solids-not-fat was deficient by 35% than the minimum prescribed standard. On receipt of the report of the Public Analyst, the Food Inspector launched the prosecution against the accused under intimation to the Local (Health) Authority and Local (Health) Authority then intimated the accused that the sample of milk had been found to be adultered and he (accused) was also notified that he could take steps to send one of the samples in the possession of the Local (Health) Authority, within ten days of the receipt of the intimation, to the Director, Central Food Laboratory, for analysis, if he so desired. The accused, however, did not exercise this option. He was then charge sheeted for the offence under section 16(1)(a)(i) read with section 7 of the Act to which he pleaded not guilty. After full trial of the case the learned trial court acquitted the accused on the ground that the Public Analyst failed to send his report to the Local (Health) Authority within a period of 45 days as enjoined by the provisions of Rule 7(3) of the Rules. The finding of the trial court was that although the sample was received by the Public Analyst on August 13, 1981, but he purports to have signed it on September 23, 1981 and though the laid report purports to have been received in the office of the Local (Health) Authority on September 25, 1985 but this receipt appeared to be of doubtful character and, therefore, it was doubtful whether the same was received in the office of the Local (Health) Authority within a period of 4S days. In the view of the trial court, the provisions of Rule 7 (3) of the Rules were mandatory in nature and, therefore, the violation of the said Rule had vitiated the trial and it thus acquitted (he accused)

(3.) In the second appeal No. 15 of 1984 the Food Inspector concerned had also purchased similar quantity of milk from the respondent (hereinafter called as the accused) for the purpose of analysis after following due procedure and the report of the Public Analyst revealed that the same was adulterated. This fact was notified to the accused after the launching of the prosecution in accordance with the Act and the Rules whereby he was also intimated that he could get one of the samples kept with the Local (Health) Authority, analysed by the General Food Laboratory, if he so desired but he did not choose to do so. The accused was accordingly charge sheeted for the offence under section 16(1)(a)(i) read with section 7 of the Act to which he pleaded not guilty. After trial of the case, the learned trial court then held that since the report of the Public Analyst was received in the office of the Local (Health) Authority after a period of 46 days of the receipt of the sample by the Public Analyst and it was beyond the prescribed period of 45 days as adjoined by the Rule 7(3) of the Rules, there was a violation of the Rule which being mandatory in nature vitiated the trial and he thus recorded the order of acquittal against the accused.