MUNICIPALITY Vs. PURAN PRAKASH

JUDGEMENT

(1.) THE accused, Puran Prakash, was convicted under Sections 7/16 of the Jammu and Kashmir Prevention of Food Adulteration Act (hereinafter referred to as the Act) and sentenced to a fine of Rs. 300/ -. The S. J. on appeal maintained the conviction but reduced the fine to Rupees 100/ -. The complainant Municipality has filed this application for enhancing the sentence imposed on the accused. The accused has not filed any revision against his conviction to this court. Rule for enhancement of the sentence having been issued, the accused has appeared through Mr. T. S. Thakur who has argued the case both on facts and law.

(2.) ACCORDING to the prosecution the Food Inspector, Girdhari Lai Raina, visited the. shop of the accused on 16-5-1970 and took a sample of turmeric weighing 450 gms. contained in a Daba in his shop. This sample was divided into three parts : two of which were taken by the Food Inspector and one was retained with the accused. The Food Inspector sent one of the parts to the Public Analyst Jammu for chemical examination. The Public Analyst after analysing the sample opined that the sample conformed to the legal standard. The food Inspector, however, was not satisfied with the opinion of the Public Analyst and he moved the court for sending the sample to the Director, Central Food Laboratory Calcutta which is the most authentic laboratory for examining such samples. The accused also appears to have fully cooperated with the court in this behalf and offered his own sample for being sent to the Director of the CFL. The report of the Director CFL showed that the turmeric was adulterated and it contained 21 parts per million (on dry basis) of lead which is undoubtedly a poisonous substance. Thereafter the prosecution produced its evidence before the trial court and the defence examined some witnesses. The trial court, after considering the evidence of the prosecution and the defence, rejected the evidence of the defence and found that the prosecution case was proved and from the findings of the Director CFL. He accordingly convicted the accused and sentenced him to a fine of Rs. 300/ -. The trial Judge made severe strictures against Mr. Sharabi, the Public Analyst at Jammu. The accused then went up in appeal to the learned S. J. who dismissed the appeal but reduced the fine from Rs. 300/- to Rs. 100/ -. The learned S. J. , however, remarked that the observations made by the learned trial court on the character and integrity of Mr. Sarabi were not warranted by the record and he accordingly expunged the remarks. We might mention here that it was not in the province of the S. J. to have expunged the remarks made by the trial court against the Public Analyst which could only be done by this court while exercising its discretion under Section 561-A of the Criminal P. C, In these circumstances the part of the order of the learned S. J. expunging the remarks against the Public Analyst is set aside and the remarks made by the trial Magistrate shall stand unless expunged by this court on a proper application made by the witness, if so advised.

(3.) WE have also gone through the entire evidence and we are convinced that the report of the Public Analyst at Jammu was not at all satisfactory. We may not go to the extent of saying that the Public Analyst was guilty of deliberate dishonesty, but there can be no doubt that he had conducted the test in a very casual and unsatisfactory manner when he had to exercise due care and caution, as his findings would have an important bearing on the prevention of serious health hazards to the society. In these circumstances the Public Analyst was undoubtedly guilty of gross negligence in making a slipshod examination of the turmeric. Had he been a little more careful, he would have detected the lead undoubtedly found in (he turmeric by the Director CFL Calcutta. The defence witnesses examined by the accused deposed that no sample of the turmeric was taken in their presence by the Food Inspector. The evidence of these defence witnesses is belied by the statement of the Food Inspector himself which we have no reason to disbelieve, particularly when no animus has been suggested bv the accused against him. Furthermore, in his statement under Section 342 of the Criminal P. C. the accused has admitted that the sample was taken from him by the Food Inspector and he further agreed that the sample may be sent to ths Director of the CFL Calcutta. Thus the defence witnesses appear to be more loyal than the king himself, in trying to disprove a fact which the accused himself admitted.