In Re: Elumalai

Sathar Sayeed, J.—The above revision is filed by the accused questioning the correctness and legality of the judgment in C.A. No. 650 of 1979 on the file of the Additional Sessions Judge, South Arcot at Cuddalore.

The facts of the case are as follows:- On 30th June, 1978 at about 6:30 a.m. P.W.1, the Food Inspector, purchased from the Petitioner herein 660 ml. of milk for Rs. 1.05 and issued Ex.P2 receipt After purchase, P.W.1 divided the same into three parts and poured the same into three clean bottles and added formalin. After packing the same as required under the Act and Rules, he sent one bottle to the Public Analyst and sent the remaining two bottles to the Local Health Authority. Ex.P3 is the report of the Analyst. According to Ex.P3, the solid-not-fat was deficient in the sample to the extent of at least 43%. Thereafter, the Petitioner was charged under Ss. 7(1) and 16(1)(a)(i) read with Section 2(l)(a) and (m) of the Prevention of Food Adulteration Act.

When the Petitioner was questioned with reference to the incriminating materials found against him in the prosecution evidence, he denied the same. Evidence was recorded and the Sub Divisional Judicial Magistrate, Villupuram convicted the accused under the said charges and sentenced him to undergo rigorous imprisonment for one year and to pay a fine of Rs. 1,000.

Aggrieved by the said conviction and sentence, the Petitioner preferred C.A. No. 650 of 1979 before the Additional Sessions Judge, South Arcot at Cuddalore and learned appellate Judge, after going through the evidence, confirmed the conviction, but modified the sentence of imprisonment to six months rigorous imprisonment. However, he confirmed the fine imposed by the trial Court. It is against the said judgment, this revision has been filed.

Mr. Ganapathy, learned Counsel for the Petitioner contends before me that there is no evidence adduced by the prosecution that the milk, which was purchased for sampling, was stirred with a long handled dipper or poured from one vessel to another, before such purchase. In support of this contention, the learned Counsel for the Petitioner brought to my notice my judgment in State v. Murugan (Crl.A No. 402 of 1978 Judgment dated 21st October, 1981) and also the decision of the Supreme Court in Food Inspector, Municipal Corporation, Baroda Vs. Madanlal Ramlal Sharma and Another, .

In State of Rajastan Vs. Kachab, . it was held that before purchase, the milk must be stirred to avoid fat globules or air bubbles coming in the sample. In C.A. No. 402 of 1978, considering this aspect, I have held that in the absence of the prosecution letting in evidence that the milk before purchase was churned or stirred or shaken, it cannot represent homogeneous and a representative one to lead to the correct test by analysis. Admittedly, in the present case, stirring of the milk was not done before purchase and the report of the Analyst cannot form a basis for conviction. It is on this ground, I am of the view that the conviction and sentence imposed on the Petitioner have to be set aside and they are accordingly set aside and this criminal revision case is allowed. The fine amount paid by the Petitioner will be refunded to him.