MUNICIPAL COUNCIL Vs. GOGA RAM

JUDGEMENT

(1.) THIS is an appeal by special leave directed against the judgment dated December 14, 1970 of the Municipal Magistrate, First Class (West), Jaipur acquitting the respondent Goga Ram under Section 16 read with Section 7 of the Prevention of Food Adulteration Act, 1954 (hereinafter referred to as 'the Act). On 7 -9 -1966. at 12.30 p.m., respondent Goga Ram was found carrying 30 K.Gms of milk, in a container, for sale. The Food Inspector T.N. Saxena suspected the milk to be adulterated. He issued a notice in the prescribed form to the accused and purchased 750 Grms. of milk for .75 paisa. The receipt evidencirg the payment of the amount to the accused is Ex. P1 which bears the signature of the Food Inspector Trilckinath Saxena, thumb -impression of the accused respondent Goga Ram and the signatures of the two attesting witnesses viz, PW 2 Badri Narayan and Nand Kishore. He divided the milk in the three parts. Each part was then put into one clean dry bottle. 16 drops of formaline were added to Each part of the sample. All the three bottles were duly wrapped and sealed. The memo Ex. P. 2 recording the steps taken by the Food Inspector was prepared on the spot. It bears the signatures of the Food Inspector Triloki Nath Saxena, thum impression of the respondent and the signatures of the two attesting witnesses PW 2 Badri Narayan and Nandkishore (not examined) One sample of the bottle was given to the respondent, and the second was sent to the Public Analyst, Rajasthan, Jaipur with a memorandum in form No VII, which is Ex. P. 4. A separate memorandum containing the impression of the seal was also sent to the Public Analyst. The receipt is Ex. P. 3. The Public Analyst received the sealed bottle on 7 -9 -1966. He found the sample properly sealed. He analysed the contents of the sample. The Public Analyst was of the opinion that the sample of the milk was adulterated by reason of abstraction of about 24% of original fat. The report of the Public Analyst is Ex. P5 Thereafter the Food Inspector filed a complaint in the Court of Municipal Magistrate, First Class, Jaipur (west) against the respondent for his prosecution under Section 7/16 of the Act The Food Inspector was authorised to file the complaint vide Notification No. D. 972/HS dated July 24, 1963 published in the Rajasthan Rajpatra dated 12 -9 -1963 part VI(Ka), page 109.

(2.) THE prosecution in support of their case examined two witnesses viz. PW. 1 T.N. Saxena, and PW 2 Badri Narayan. The accused in his statement under Section 342 Cr.P.C. denied the entire prosecution case. P.W.1 T.N. Saxena supported the prosacution case but PW/2 Badri Narayan made a statement contrary to the statement of PW/1 T.N. Saxena, According to PW/1 T.N. Saxena the receipt Ex. P 1 was in the hand of PW 2 Badrinarayan. P.W. 2 Badrinarayan categorically stated that the receipt Ex. P. 1 was not in his hand. He further stated that neither the sample was taken, nor the bottles were sealed, in his presence. PW/2 Badrinarayan in fact supported the statement made by accused. The learned Magistrate held that the prosecution failed to prove that the accused was carrying the milk for sale or it was sold or was kept for sale He further held that the compliance of Sub -section (7) of Section 10 of the Act was not made. The learned Magistrate observed that the prosecutor who was incharge of conducting the case did not choose to request the court to permit him to cross examine PW/2 Badrinarayan and did not get the witness declared hostile. There was no reason to disbelieve the statement of PW/2 Badrinarayan and as such it was not possible to believe that the Food Inspector completed the formalities required to be performed for taking the sample and getting it analysed. He found it unsafe to rely on the statement of PW/1 Trilckinath Saxena and gave benefit of doubt to the accused -respondent and acquitted him.

(3.) AFTER the admission of the appeal a notice was issued to the respondent Gogaram stating that the appeal filed by the Municipal Council, Jaipur challenging the order of acquittal dated 14 -12 -1970 passed in favour of the respondent by the Municipal Magistrate, 1st Class (West, Jaipur in Criminal) Case No. 152/66 has been admitted and the appeal would be taken up for hearing on January 24, 1972. The nonce was served on the respondent on 7 -1 -1972 but the respondent has not chosen to appear before this Court to contest the appeal.