STATE OF RAJASTHAN Vs. GOPAL KRISHAN

JUDGEMENT

(1.) The State of Rajasthan has filed this appeal against the judgment dated January 17, 1977 passed by the Chief Judicial Magistrate, Bhilwara by which the respondent Gopal Krishan was acquitted of the charge under section 7 read with 16 of the Prevention of Food Adulteration Act (hereinafter to be referred as Tthe Act).

(2.) On May 30, 1974 Food Inspector Bhilwara went to the shop of Firm Kailash Chandra Gopal Krishan situate in Sadar Bazar, Bhilwara and purchased from him 375 gm. of Til Oil. The Inspector divided that oil in three parts and poured the same in three clean bottles and sealed them and prepared the memo. One of the sample was sent to the Public Health Laboratory, Ajmer for analysis. As per report of the Public Analyst, Public Health Laboratory, Ajmer. Ex. P6 the Tit Oil was found to be adulterated as it did not conform to the prescribed standard of purity Complaint against the respondent Gopal Krishan was filed in the court. On his plea being recorded, he denied the indication. During the course of trial, the respondent made a prayer for getting the sample examined at Central Food Laboratory, Calcutta. The learned Magistrate allowed the prayer and sent the sealed sample through Railway Parcel. On opening the parcel containing the sample, at the Central Food Laboratory, Calcutta, the bottle was found empty. On June 2, 1975, respondent was directed to produce the bottle containing the sample given to him under section 11 (1)(c)(i) of the Act. He denied to have received any such bottle. In view of the evidence of the prosecution evidence and the statement of the respondent under section 313 of the Code of Criminal Procedure the learned Magistrate accepted the position that one part of the sample was given to the respondent. The learned Magistrate however did not agree with the argument advanced from the prosecution side that adverse inference should be drawn against the respondent for not producing the sample with him and the report of the Public Analyst, Ajmer should be taken into consideration. According to the learned Magistrate, prosecution cannot take advantage of any weakness or infirmity of the defence. If the case fails because of any mistake of the prosecution, benefit should go to the accused. In view of that finding, the learned Magistrate passed the judgment of acquittal which is the subject matter of this appeal.

(3.) The learned Public Prosecutor has assailed the judgment of the learned Magistrate on the ground that, when the sample had been given to the accused as per rules it was obligatory on him to produce his sample so that report from the Central Food Laboratory may be obtained. The learned public Prosecutor placed reliance on the principle enunciated in the case of Mohinder Singh v. The State of Punjab1, In that case the bottle of the sample with the accused was found to be broken. The bottle containing third sample smashed while in transit to the Director Central Food Laboratory, Calcutta. The accused was convicted on the basis of analysis of the Public Analyst. His Lordship was pleased to observe that no doubt whenever suspicious circumstances come into existence in such cases to which the prosecution bas contributed by its acts of commission or omission, the benefit of the doubt goes to the accused. The conviction was however for the reason that in that case no such criticism could be lodged against the prosecution.