BADRI Vs. STATE

JUDGEMENT

(1.) THE revision before me is by one Badri and is directed against ah appellate judgment of the learned Sessions Judge, Jaipur City, dated 8-2-64 by which the learned Judge upheld the conviction of the petitioner and tie sentence of imprisonment passed against him for an offence under Section 7/16 of the prevention or Food Adulteration Act, 1954, hereinafter to be referred as the "act", by the Municipal Magistrate, First Class, No. 2, Jaipur City, who sentenced him to one year's rigorous imprisonment and a fine of Rs. 2,000; though in doing so the learned Sessions Judge, reduced the sentence of fine from Rs. 2,000 to Rs. 500, and in default awarded further rigorous imprisonment for three months only. Shortly stated the facts are these; the accused petitioner holds a licence for selling milk and on 30-8-82, he was checked by Shri Satya Narain Sharma, Food Inspector in front of Sawai Mansingh hospital at Jaipur when he was carrying two drums of milk. The Inspector took a sample from one of the drums and paid Rs. 0. 37 N. p. as the price of the sample and obtained a receipt Ex. P-l in the presence of two motbirs. The Food Inspector then divided the sample so taken by mm and put it in several phials and sealed them in the presence of the motbirs and the accused. One phial was handed over to the accused while put of the other phials one was sent to the Public Analyst for examination and third one was submitted in court. As the report of the Public analyst showed that the sample of milk was adulterated, the Food Inspector lodged a complaint for an offence under Section 16 (1) (a) read with Section 7 (i)of the Act, against the accused after obtaining the requisite sanction under Section 20 of the Act, from the Chairman of the Municipal Council, Jaipur. The accused admitted that he was carrying two drums of milk and the Food inspector Shri Satya Narain Sharma had taken the sample from one of the drums and had paid him for it. But, he stated that he was not the owner of the drum containing milk from which sample was taken and it belonged to one Moolia who had given it to him simply for the purpose of carrying the same to one gulabchand, with whom Moolia had a prior arrangement. Thus, his stand was that the drum that he was having was not meant for sale by him, but he was simply a carrier thereof on behalf of Moolia and the same was to be handed over to one gulabchand in Kundigaron-ke-Ghar-ka-Rasta, Johri Bazar, Jaipur. He proceeded to say that as the Food Inspector wanted to take the sample he pointed out to him that the drum did not belong to him but to Moolia and he never wanted to sell the contents thereof. The prosecution examined in all four witnesses. P. W. 1 Satya Narain Sharma was the Food Inspector who stated the facts as mentioned above in narrating the prosecution story. P. W. 2 Ramgopal and P. W. 3 Arjun Lal were the motbirs in whose presence the Food Inspector Shri Satya Narain Sharma took a sample of the milk from the drum which was being carried by the accused and paid for it. P. W. 4 was Shri Shyam Beharilal Saxena the President of the Municipal Council, jaipur, at the material time and he stated that he had sanctioned the present prosecution under Section 20 of the Act and this he did in exercise of the authority delegated to him by the Municipal Council, Jaipur, vide its resolution Ex. P-7. The accused examined himself as his witness under Section 342-A of the Code of criminal Procedure and in his statement as D. W. 1 he narrated the facts as mentioned above while stating his line of defence. D. W. 2 was Gulabchand who stated that he had asked Moolia to bring him about 10 seers of milk on that day as it was required in connection with the preparation of 'khir' (rice pudding) on account of the anniversary of his mother. He further stated that Moolia himself did not come with the milk but the same was brought to him in a drum by the accused badri who also gave him a receipt of Re. 0. 87 np. , as according to him the Food inspector had taken a sample from the drum and had paid this amount as its price. D. W. 3 was Moolia who has supported the story given by the accused about the ownership of the drum. According to Moolia, the milk and the drum belonged to him and the accused was simply conveying it to his customer D. W. 2 Gulab chand. D. W. 4 was Gulab Singh who stated that he was present at the time the food Inspector took the sample from the drum which was being carried by the accused. According to him, the accused mentioned to the Food Inspector that the milk did not belong to him and he was simply carrying it for Moolia to be delivered at the house or Gulab Chand D. W. 2.

(2.) IN assailing the judgment of the learned Sessions Judge the learned counsel for the petitioner submits that in the first place the proceedings taken against the petitioner are vitiated for want of a proper sanction from the competent authority namely, the Municipal Council, Jaipur, as required by Section 20 of the Act. He maintains that the sanction Ex. P-7, purporting to have been given only by the chairman of the Council, was not a valid sanction in conformity with Section 20 of the Act. Secondly, it is urged that as it has been established from the evidence on the record that the accused was only a carrier of milk belonging to another person namely, Moolia and he was not to sell it the offence under Section 16 of the Act was not made out against the accused petitioner. In this regard it is urged that both the learned trial Magistrate as well as the learned appellate Judge have overlooked certain important features of the evidence and have consequently come to an erroneous conclusion. In particular it is pointed out that they were clearly in error in thinking that the plea taken by the accused that the milk belonged to Moolia was an after-thought. The learned counsel read to me the entire evidence in the case and I propose to deal with this matter at the appropriate place.

(3.) AS to whether the sanction Ex. P-7, accorded by the Chairman of the Municipal council, Jaipur, was a proper sanction within the meaning of Section 20, will depend upon a consideration or the relevant provisions of the Act, as well as the provisions or the Rajasthan Municipalities Act, 1959, the provisions of which I propose to read. Section 20 of the Act provides:-