SRINAGAR MUNICIPAL COUNCIL Vs. SONNA ULLAH MALIK

JUDGEMENT

(1.) THE respondent herein was tried for an offence under section 16 of the Prevention of Food Adulteration Act (herein after referred to as the Act) by the Special Municipal Mobile Judicial Magistrate, First Class, Srinagar and was convicted and sentenced to undergo rigorous imprisonment for three months and to pay a fine of Rs. 1000/. In default of payment of fine, he was directed to undergo further simple imprisonment for three months. Aggrieved against his conviction and sentence, the respondent filed an appeal. The learned Session Judge, Srinagar, vide order dated 12 -6 -1976, confirmed the conviction and sentence of fine imposed on the respondent but reduced the sentence of imprisonment to the period already under -gone by him. The petitioner, Municipal Council, Srinagar, filed a revision petition for enhancement of the sentence passed against the respondent in this court. Notice was given to the respondent to show cause, why in the event of his conviction being maintained, sentence of imprisonment be not enhanced. The matter was put up before a Division Bench on 18 -10 -76. A Division Bench of this court after hearing the complainant, accepted the petition and enhanced the sentence to six months imprisonment. The imposition of fine was maintained. The respondent, who according to the record had been served, was not present before the Bench when the petition for enhancement was heard. The respondent there after filed an application under section 561 -A Cr. P.C. in this court stating therein that he had not been served in the petition for enhancement filed by the Municipal Council, Srinagar, and that the sentence has been enhanced without affording him any opportunity of hearing. It was pleaded that the notice was not served on him and the report of the process server to the contrary was incorrect. With a view to resolve the controversy, the parties were directed to adduce evidence to establish whether or not the respondent had been served as required by law. The statement of the process server was recorded as a court witness and he testified that the respondent had been served by him. The respondent was granted an opportunity to adduce evidence in rebuttal. However, on 18 -7 -78, when the case came before us, Mr. K. N. Raina, learned counsel for Srinagar Municipal Council, submitted that without admitting that the respondent was not properly served, he would have no objection, to the recalling of the order of Bench dated 18 -10 -1976 and its rehearing. He further submitted that he had made the concession so that the accused person was given a fair opportunity of defending himself in the petition for enhancement. Although, this court does not generally review orders passed by it on the criminal side, yet, in the interest of justice and in the facts and circumstances of this case and in view of the concession made by Mr. Raina, we, in exercise of the inherent jurisdiction of this court, recalled the order of the High Court dated 18 -10 -1976 and directed that criminal revision petition No. 41 of 1976, the petition for enhancement of sentence, be re -heard on merits. That is how the revision petition has come up for disposal before us on merits.

(2.) THE prosecution case against the respondent is that on 9 -1 -74, he was found carrying 40 kilograms of Cows milk for sale. The food Inspector intercepted him and purchased a sample of milk weighing 750 grams against payment. The sample was divided into three equal parts and each part was secured in a dry and clean bottle after adding requisite amount of preservative Formalin. One part of the sample was sent for analysis to the Public analyst, one part was given to the respondent as required by law while the third part was retained by the Food Inspector. The Public analyst, on analysis, found that the milk was adulterated. He submitted the report of analysis in the prescribed form, according to which the sample contained 2.3% Fat constituent, 6.4% Solid not fat 91.3% water. The prescribed minimum standard of purity required, Fat constituent to be atleast 3.5% and solid not fat to be 8.5%. The sample of milk was, thus, found to be adulterated as it did not conform to the minimum standard of purity. On receipt of the report, the respondent was proceeded against in the court of Special Municipal Mobile Magistrate, Srinagar.

(3.) IN support of its case, the prosecution had examined the Food Inspector, besides Ghulam Ahmad Bhat, sampler and Sonaullah, Sanitary Supervisor as witnesses and relied upon the report of the public analyst.