MUNICIPALITY JAMMU Vs. KHEM RAJ

JUDGEMENT

(1.) THIS is an appeal against the order of acquittal passed by the Municipal Magistrate in favour of the respondent, dated 21 -12 -1967. The resporident was prosecuted under Section 16 P. F. A. Act. The prosecution story was that the complainant Bansi Lal Food Inspector purchased 370 grams of Dessi Ghee from the accused which was found to be sub -standard by the Public Analyst. The prosecution produced Bansi Lal, Food Inspector, M. L. Sharabi, Public Analyst, Madan Lal and Dr. J. K. Sharma. The accused also produced two witnesses, The trial court has dismissed the complaint of the Municipality holding that the prosecution has failed to establish that M. L. Sharabi possesses any of such qualifications as are laid down under the rules. He has not treated the evidence of this M L. Sharabi as that of an expert. The trial court has further remarked that uptil the time of his decision no notification regarding the appointment of Public Analyst had been made and neither any Food Laboratory had been notified. On these technical defects the accused has been acquitted. We have heard the arguments of the learned counsel for the parties.

(2.) MR . Nanda on behalf of the Municipality has argued that the trial court has erred in acquitting the accused, firstly that the Public Analyst is properly appointed by the Government; secondly be possesses the necessary qualifications; thirdly the trial court was wrong in discarditing the statement of this witness on the basis of some alleged reports received contrary to his opinion without having allowed the Public Analyst to explain his position with respect to them.

(3.) THE learned counsel for the respondent has argued that under the Prevention of Food Adulteration Act, Section 8 it is necessary for the Govt : to appoint a person as a Public Analyst and the person appointed must possess the prescribed qualifications. The learned counsel for the respondent has further argued that the prescribed qualifications are given in rules made under this Act. Rule 5 of the Act lays down the qualifications of the Public Analyst. This rule has been reproduced by the learned trial Magistrate in his order and we need not again quote it in extenso. He has further argued that the evidence of this witness is no evidence and no conviction can be passed on such a testimony. He has referred us to a number of authorities on this point viz : AIR 1959 Patna 182, AIR 1965 Allahabad 170, and AIR 1960 Allahabad 546 (FB) Beginning with the last authority, this has laid down that a person who was appointed as a Public Analyst under the provisions of U. P. Pure Food Act 1950 which was repealed could not be treated as a Public Analyst under the Prevention of Food Adulteration Act 1954. This Full Bench authority differed from the earlier authority of that court reported as AIR 1960 All. 117.