Ghamandi vs Nagar Swasthya Adhikari

V.N. Misra, J.—This is an application in revision by Ghamandi accused against the judgment and order of Sri Bramha Kishore, II Additional Sessions Judge, Agra, in Criminal Appeal No. 413 of 1979 by means of which he confirmed the conviction of the applicant u/s 7 read with Section 16 of the Prevention of Food Adulteration Act, and the sentence of six months and a fine of rupees one thousand imposed on him by the Additional Chief Judicial Magistrate, Agra.

Briefly stated, the prosecution case was that the Food Inspector took a sample of milk, which the applicant was selling, from him on 19-9-1975 at about 3. 30 P.M. This was divided in three parts, sealed in three clean phials and when the sample was sent to the Public Analyst, it was found deficient in non-fatty solid contents by 22 percent as judged on the basis of standard of buffalo milk. Sanction of the Chief Medical Officer was obtained and the applicant prosecuted and. convicted as aforesaid.

The defence in this case was that when the sample was taken from the applicant he had told the Food Inspector that it was cow''s milk and he was taking it to his relation Ant Ram and it was not for sale.

The first point raised by the learned Counsel for the applicant was that in this case no independent witness was examined in whose presence the sample may have been taken and thus there was a breach of Section 10(7) of the Prevention of Food Adulteration Act. PW 1 B.N. Singhal, Food Inspector, however, stated that he had called independent witnesses, the sample was taken in their presence but they refused to sign the papers and also did not disclose their names or addresses. It was, thus, explained why independent witnesses could not be examined.

It was then urged that this milk was not for sale and the applicant was taking it to Ant Ram son-in-law of Bahadur Singh. Both Bahadur Singh and Ant Ram were examined as defence witnesses. The evidence examined by the prosecution, however, was that the applicant was ''actually selling this milk when its sample was ''taken. The defence evidence, therefore, which was easy to obtain, could not be relied upon and accepted.

It was then urged that Section 13(2) of the Prevention of Food Adulteration Act was not complied with and the right which the applicant had to get the sample sent to Central Food Laboratory was denied to him. The Food Inspector, however, stated that he had sent a copy of the report of the Food Inspector to the applicant. In any case the applicant had appeared in Court and if he wanted he could get the sample sent to the Central Food Laboratory. It does not, therefore, seem that the right u/s 13(2) of the Act was denied.

It was finally contended that the applicant had given cow''s milk to the Food Inspector and this milk could not be examined on the basis of the standard laid down for buffalo milk and then it was found to be deficient in non fatty contents. The Food Inspector clearly stated that when the sample was taken the applicant did not disclose what kind of milk it was. It could not be, therefore, examined on the basis of the standard laid down for buffalo milk because any other milk compared to buffalo milk would be deficient in fatty contents. Since the Food Inspector did not ascertain what kind of milk it was, it could not be examined on basis of the standard laid down for buffalo milk and could not be said to be adulterated. For these reasons, therefore, the applicant could not be convicted.

This revision is, therefore, allowed and the conviction of the applicant and the sentence imposed on him are hereby set aside. The applicant is on bail and need not surrender. His bail bonds are hereby cancelled and sureties discharged. Fine, if realised, shall be refunded to the applicant.