KAYUM ALI Vs. KANA

JUDGEMENT

(1.) THE material facts of this case, as alleged by the complainant, are that in the morning of Jan. 15, 1965 P. W. 1 Kayum Ali, Food Inspector, Udaipur, gave a notice, through Form No. VI, (Ex. P. 1) to the milkman Kana to the effect that he would buy some milk from him for the purpose of analysis, to be conducted by the Central Pub. Health Laby. Raj. , Jaipur Soon after the Food Inspector bought from him 660 mililitres of milk for 37 np. and obtained the signature of the accused below the said Form. This the Food Inspector did when he saw the accused Kana taking two drums containing 18 Kilogramme of milk THE sample so obtained was divided into 3 parts, each of which was held in a phial. All the phials were duly sealed in presence of two witnesses, Bhanwar Singh, P. W. 2, and Jamnadas, P. W. 3. One of the sample phials was given to the accused. THE other was sent to the Public Analyst, Rajasthan, Jaipur, and the third one was kept by the Inspector himself. THE sample which was sent for qualitative analysis to the Public Analyst, Jaipur, was accompanied by the prescribed Memorandum in Form No. VII. It was also mentioned in the memorandum that a specimen impression of the seal used for sealing the packet was being sent separately by registered post. THE Public Analyst, Jaipur received the sample on January 18, 1965. He found the seal of the sample in tact and unbroken. THE Public Analyst then examined the sample and declared the result of his analysis as under - 1. Fat contents . . . . . . 2.2% 2. Solid non-fats . . . . . . 3 44% 3. Cane sugar and starch . . . . . . Nil THE Public Analyst was of the opinion that the milk sample was adulterated by reason of its containing 62% of added water. THE Food Inspector then obtained necessary sanction from the Commissioner, Municipal Council, Udaipur, and lodged a complaint with the court of the Municipal Magistrate of the place for the prosecution of the accused under sec. 16, read with sec. 7, Prevention of Food Adulteration Act, 1954 (hereinafter called the Act ). THE Municipal Magistrate, framed charge against the accused under the aforesaid provisions of law on November 8, 1967, to which he pleaded not guilty and claimed trial. In support of its case the prosecution examined the Food Inspector Kayum Ali, P. W. 1 as also the two 'motbirs' Bhanwar Singh, P. W. 2, and Jamna Das P. W. 3. In his statement, recorded under Sec. 342, Cr. P. C. the accused pleaded that he was taking the milk not for sale but for giving it to one Udailal Mehta. He admitted that his milk was checked by the Food Inspector and its sample was obtained from him. In his defence he examined 2 witnesses, Dhanna Singh D. W. 1 and Nandlal Nai D. W. 2. Eventually the trial court acquitted the accused Kana on the following 3 grounds - (1) that the prosecution has failed to prove that the accused was taking the milk for the purpose of selling it; (2) that the prosecution has not succeeded in establishing that the Public Analyst had compared the seals of the container and the outer cover with the specimen impression received separately in accordance with rule 7, read with rule 18 of the Prevention of Food Adulteration Rules, 1955 and (3) that the prosecution was launched with inordinate delay of more than 9 months.

(2.) AGGRIEVED by the above verdict, the Municipal Council, Udaipur, has taken this appeal. It has been submitted that the findings given by the court below are illegal and erroneous. The learned Magistrate went wrong in holding that the certificate given by the Public Analyst was not admissible in evidence. The learned Magistrate ought to have presumed under illustration (e) to sec. 114, Evidence Act, that the Public Analyst performed the duties regularly and that he acted in accordance with the rules. He must have compared the specimen impression received by him with the seal of the container. The learned counsel further submitted that the court below failed to properly appreciate the definition of 'sale' given in sec. 2 (xiii) of the Act. In regard to delay the counsel submitted that the benefit of sec. 13 of of the Act could be claimed by the accused only if he exercised his right in the trial court. Here, as the accused did not do so, the case would have been decided on the basis of the report of the Public Analyst.