KHAJU Vs. THE STATE

JUDGEMENT

(1.) ON February 28, 1968, P.W. 1 Balraj Singh, Food Inspector, Ajmer, after issuing requisite notice (Ex. P. 1), purchased at Ajmer 12 'Chhatanks' of cow -milk from Khaju Gujar, resident of Kalyanipura in lieu of 60. P. for the purpose of an analysis. The milk was divided into 3 equal parts, each of which was kept in a bottle, which was duly sealed. One of the samples was given to the accused Khaju and a receipt thereof there of Ex P. 2 was obtained from him. The other sample was kept by the Food Inspector and the third one was sent with a memorandum Ex. P. 4 to the Public Analyst, Ajmer, for ascertainment of chemical elements. The sample reached the hands of the Public Analyst on February 28,1968. He at first compared the seal on the container of the sample with the specimen impression received by him separately and found the seal on the bottle identical and in tact. Thereafter he analysed the sample and certified the result as under:

(2.) DISSATISFIED with the above judgment, Khaju has preferred this, revision -application. Learned Counsel for the accused raised, in the course of his arguments, the following three points:

(3.) I now take up the second point pressed on behalf of the petitioner regarding the non -examination of 'Motbirs'. Learned Counsel for the petitioner submits that under Sub -section (7) of Section 10 of the Act, when Food Inspector takes a sample, he has to call one or more persons to be present when such action is taken and to take his or their signatures on requisite memorandum. Here the Food Inspector while taking the sample called Kishore and Tarachand to be associated with the proceedings and their signatures were obtained on Ex. P.3. But these attesting witnesses have not been examined in the trial court. Failure to examine them learned Counsel adds, raises a presumption against the prosecution under illustration (g) to Section 114, Evidence Act.