PREM CHAND Vs. STATE OF HIMACHAL PRADESH

JUDGEMENT

(1.) THIS revision has been directed against the judgment dated 11.10.2002 passed by learned Sessions Judge, Kullu in Criminal Appeal No. 5/2002 affirming judgment dated 3.8.2002 passed by learned Chief Judicial Magistrate, Lahaul -Spiti at Kullu in Cr. Case No.73 -I of 2000 whereby the petitioner was convicted under Section 16(1)(a)(i) of the Prevention of Food Adulteration Act, 1954 ( for short Act) and sentenced to undergo simple imprisonment for six months and to pay fine of Rs.1000/ -, in default of payment of fine to undergo simple imprisonment for a period of one month.

(2.) THE prosecution case, in brief, is that PW -1 Jagdish Ram Food Inspector intercepted the petitioner on 17.12.1999 at about 8 a.m. at Bhutti Bus Stand Kullu while he was unloading cans containing about 120 litres of cow milk from a vehicle for the purpose of sale to general public for human consumption. PW -1 disclosed his identity and expressed his intention to purchase milk for analysis. Thereupon PW -1 purchased 750 gms cow milk on payment of Rs.8/ - from petitioner from a container containing about 20 kg. of cows milk. The milk so purchased was put into three dry clean bottles and 20 drops of formalin were added to each bottle. The bottles were then properly labelled and stoppered, paper slips issued by the local health authority were affixed on each bottle. The bottles were fastened with strong thread and sealed properly. The signatures of petitioner were taken on each bottle. One part of the sample was sent for chemical analysis. The analyst found the sample to be adulterated for milk fat as well as for milk solids not fat. The consent was obtained for prosecuting the petitioner and the complaint was filed. The petitioner was summoned, notice of accusation was put to petitioner under Section 16(1)(a)(i) of the Act, who pleaded not guilty. The complainant had examined three witnesses. The statement of petitioner was recorded under Section 313 Cr.P.C., he denied that the sample was adulterated. The learned Chief Judicial Magistrate on 3.8.2002 convicted and sentenced the petitioner as noticed above. The appeal filed by petitioner was dismissed by learned Sessions Judge, Kullu on 11.10.2002, hence accused has come in revision.

(3.) ACCORDING to petitioner procurement of the sample by PW -1 when petitioner was loading and unloading the milk does not come within the purview of the sale under the Act. It has, however, come on record that PW -1 in fact had purchased milk from petitioner vide Ex.P -1 for analysis from public analyst and vide Ex.P -2 a sum of Rs. 8/ - was received by petitioner in token of having sold 750 grams of cow milk to PW -1. In State vs. Kalyan Singh 1971 S.L.J 314 a Division Bench of this Court has held that even if the oil kept in the tin weighing about 7 or 8 kg. was stored for domestic use and the accused gave it as a sample or the Food Inspector himself took a sample out of the tin and the accused accepted the price it would, therefore, clearly amount to sale within the definition of Section 2(XIII) of the Act. If the article was not meant for sale the accused should have refused to accept the price. In the present case, the sale of milk by petitioner to PW -1 against price paid has been proved on record. It is, thus clear that the milk was sold by petitioner to PW -1 which comes within the definition of sale under the Act.