MUNICIPAL COUNCIL UDAIPUR Vs. MAHESHWARI PRASAD

JUDGEMENT

(1.) THE accused-non-petitioner was convicted under Sec 16 (1) of the Prevention of Food Adulteration Act (No. XXXVII of 1954) (hereinafter referred to as 'the Act') by the Municipal Magistrate, First Class, Udaipur and sentenced him to pay a fine of Rs. 200/ -. THE Municipal Council, Udaipur has filed this revision under S. 439, Cr. P. C. (old) for enhancement of the sentence awarded to the accused-non-petitioner.

(2.) BRIEFLY put the prosecution case is that on November 23, 1969, one Taj Singh with whom we are not concerned in this criminal revision, and Maheshwari Prasad (accused-non-petitioner) were selling milk from the containers placed in Jeep RJY 3448 at 11. 45 a. m. On that day, the Food Inspector saw them selling milk outside Hathipol, at that time, Manoharsingh was purchasing milk contained in the containers. It has been alleged by the prosecution that there were seven 'kothis' of the milk in the aforesaid Jeep, out of which six 'kothis' were empty and the remaining one was full of milk. The Food Inspector purchased 600 mm. of milk and gave 68 n. p. to Tejsingh, who is said to be the servant of Maheshwar Prasad (accused-non petitioner) at that time, the accused was sitting in the Jeep on the seat of the driver. As soon as the accused saw the Food Inspector, he left the Jeep. The purchased milk was divided in to three equal parts and was filled in three clean bottles. Formalin was also added. The bottles were sealed. A 'panchnama' was prepared and specimen seal was fixed. Out of three bottles, one bottle was given to the accused and one bottle was sent to the Public Analyst at Jaipur. The Public Analyst vide Ex P6, found that the milk of which the sample was taken, was adulterated by reason of its containing 22% of added water. After obtaining necessary sanction, a complaint was filed in the court of Municipal Magistrate, Udaipur While the case was pending, Tej Singh died and, therefore, proceedings continued against the accused-non-petitioner only. The accused-non-petitioner pleaded not guilty to the charge. He examined himself under S. 345-A Cr. P. C. (old ). The prosecution examined five witnesses in support of its case. The learned Magistrate found the accused-non-petitioner guilty under S. 16 (1) of the Act and sentenced him to pay a fine of Rs. 200/- as aforesaid. The Municipal Council, Udaipur has filed this revision petition,

(3.) A perusal of Ex. P/ll, which is a judgment rendered in Criminal Case No. 1233 of 1962: Food Inspector vs. Maheswari Prasad, decided on Jan. 8, 1963 shows that the accused-non-petitioner, in that case, was convicted under S. 16 (1) of the Act and was sentenced to pay a fine of Rs. 125/- and in default of payment of the fine to undergo rigorous imprisonment for two months. After the aforesaid decision the accused-non-petitioner committed the second offence on May 29, 1964 and after trial, vide Ex. P/12 dated September 25, 1968, the accused-non-petitioner was convicted under section 16 (1) of the Act and was sentenced to imprisonment upto the rising of the court and a fine of Rs. 300/- and in default of payment of tine to undergo rigorous imprisonment for two moths. The learned Magistrate took notice of the aforesaid two judgments (Ex. P/ll and Ex P/12) and stated a perusal of the aforesaid two judgments shows that in those cases, the sample of the milk was taken from the possession of the accused-non-petitioner, whereas in the case before him, the sample was taken from Tejsingh, who was servant of the accused-non-petitioner and that that milk, of which sample was taken from Tejsingh was found to be adulterated. While awarding the sentence of fine of Rs 200/- , the learned Municipal Magistrate has stated, as mentioned above, that he considers a fine of Rs. 200/- to be proper. The accused has committed first offence on Oct. 17, 1962. He was convicted under sec. 16 (1) of the Act on October 8, 1963 The second offence was committed by the accused petitioner under S. 16 (l) of the Act on May 29, 1964 and he was convicted on September 25, 1968, The third offence u/s. 16 (1) of the Act regarding which the accused-non-petitioner has been found to be guilty by the learned Magistrate, was committed on November 28, 1969, after his conviction for the second offence by Ex. P/12 on September 25, 1968. The learned Magistrate has not given any reasons much less adequate and special reasons in the judgment for awarding the sentence less than six months and fine of less than one thousand rupees, as prescribed under section 16 (1) of the Act at the relevant time.