SHAMBHOO NARAIN Vs. MOTILAL

JUDGEMENT

(1.) THIS appeal emerges from the judgment of the learned Municipal Magistrate, Udaipur, acquitting the respondent Motilal Under Section 16, read with Section 7, Prevention of Food Adulteration "act, 1954, (hereinafter referred to as the-Act ).

(2.) THE prosecution story is short and simple. It is alleged that on June 14, 1968, at about 6 a. m. Food inspector Shamboo Narain, P, W. 1, went out on his usual round. He found the accused Motilal' selling milk to the Shiv Nivas hotel-keeper at Bara Bazaar, Udaipur. The accused was having 15 Kgs. of milk and was also in possession of measurement-pots. A notice (Ex, P. 1) in form No. VI was given to the accused. . It bears the signature of the Food Inspector Shambob Narain as also the attestation of Gobind, P. W. 2, Ambalal, P. W. 3, and Hiralal, P. W. 4. After giving the notice the Food Inspector purchased 660 MMs. of milk for 50 Paise. He divided the milk into three parts. Each part was then taken in a bottle. All the three bottles were duly sealed. A memo (Ex. P. 2) was prepared on the spot. It bears the signatures of the accused Motilal and the three attesting witnesses, namely, Gobind, P. W, 2, Ambalal, P. W. 3 and Hiralal, P. W. 4. One sample-bottle was transmitted to the accused Motilal; the other Was retained by the Municipal authorities. The third sample was sent to the Public Analyst-Rajasthan, Jaipur, with a memorandum in form No. VII (Ex. P. 3), bearing a specimen seal. " The sealed bottle was received by the Public Analyst Rajasthan, Jaipur, on June 18, 1968. He analysed the contents of the bottle and declared the result as under (vide Ex. P. 4): Fat contents Solids-non-fat Cane sugar starch 2. 6% 4. 24% nil. In the opinion of the Public Analyst the sample of the milk was adulterated by reason of its containing about 53% of added water. The Food Inspector then obtained sanction of the Municipal Council, Udaipur, for the prosecution of the accused Motilal. The sanction is marked Ex. P. 5. Thereafter a complaint was made in the Court of the Municipal Magistrate, Udaipur, against the accused Motilal for his prosecution Under Section 16 read with Section 7 of the Act. The accused denied "the commission of the offence. The prosecution examined four witnesses, namely, Sham-bhoo Narain, Food Inspector, P. W. 1, and 'motbirs' Gobind, P. W. 2, Ambalal, P. W. 3 and Hiralal, P. W. 4. In his statement, recorded Under Section 342, Criminal P. C. , the accused deposed that he knew nothing in the matter and that he has been falsely implicated. The Inspector told him to sign 'panchnama' and, therefore, he put his signature thereon. He further said that the 'motbirs' were friendly to the Inspector. He did not produce any evidence in his defence. Eventually, the trial court gave finding that it was not proved that the accused was a milk-vendor, although it was a fact that the Food Inspector bought the milk on the spot from the accused for the purpose of sample. The trial court has also held that there is nothing on the record to show that the memorandum in form No. VII (Ex, P. 3) and the specimen impression of the seal were sent to the Public Analyst separately by registered post in accordance with the provisions of Rule 18 of the Prevention of Food Adulteration Rules (hereinafter to be referred to as the Rules ). The trial Court also observed in its Judgment that the Public Analyst had not mentioned in his report Ex. P. 4 that on receipt: of the package containing the sample for analysis, fie compared the seal of the container with the specimen impression received separately and, therefore. Rule 7 has also been violated. It is on these findings that the accused Motilal has been acquitted.

(3.) THE Municipal Council, Udaipur,, felt dissatisfied with the above judgment and has taken the present appeal. learned Counsel for the appellant has vehemently challenged the findings of the trial court. He submits that the transaction of sale has been fully proved in this case. He further urges that it is in the evidence of the Food Inspector that a copy of form No. VII had been sent to the Public Analyst by the Comrmissioner, Municipal Council, Udaipur, through post in accordance with the provisions of Rule 18, learned Counsel has also argued that presumption should be raised in accordance with the provisions of Section 114, illustration (e) of the Evidence Act that the Public Analyst acted in accordance with Rule, 7 and that he must have compared the specimen impression received by him with the seal on the container. learned Counsel for the respondent supported the judgment of the Court below. His main argument is that the record does not speak that Rule 7 and Rule 18 have been duly complied with. The evidence led by the prosecution that the copy of the memorandum of the specimen impression was sent to the Public Analyst according to law has been rebutted in the cross-examination of the Food Inspector Shambhoo Narain, P. W. 1. learned Counsel for the accused further urged that the provisions of both the rules are mandatory in nature and their noncompliance vitiates the charge brought against the accused. The counsel also submitted that the prosecution has failed to prove that the accused dealt in milk business.