In re: Ramalingam

David Annoussamy, J.—This is a revision petition by the accused. The revision petitioner was called absent and no representation on his behalf was made by any counsel. It appears that the revision petitioner and his counsel have left the matter to, the court, presumably thinking that they do not have any strong point to press.

As per S. 433, Crl.P.C., no party has any right to be heard either personally or by pleader before any court exercising its power of revision. In this case, opportunity was given to the party. He did not appear either personally or by pleader. The judgments and records were therefore perused and the Public Prosecutor was heard.

The case was instituted before the Court of the Sub Divisional Judicial Magistrate, Ariyalur, against one Nandisami, accused 1, and Ramalingam, accused 2 and revision petitioner herein, upon a complaint by the Food Inspector of Puvanur town Panchayat. The report of the Food Inspector was as follows: "Accused 1 is the owner end accused 2 is the sales man. On 28.9.1981 at 8:30 a.m. at door No. 39, Main Road, Poovanur, accused 2 was in his possession of about 15 litres of cows milk in, a can intended for sale, which can belonged to accused 1. The Food Inspector served form VI. notice and purchased 780 MU of milk for Rs. 1.50 for analysis. After following scrupulously all the steps prescribed by law, the milk was sampled and given sample No. 267 and sent for analysis. The report received from the Public Analyst was to the effect that the sample was deficient in solids not-fat to the extent of at least 28 per cent as per report No. 4918/81/ 82, dated 19.10 1981. Therefore, prosecution was launched under Ss.7(l) and 16(l)(a)(i) read with S.2(ia) and (a) and (m) of the Prevention of Food Adulteration Act, 1954."

Before the trial Court, the Food Inspector examined himself and filed ten exhibits. The accused did not adduce any evidence nor filed any exhibit. The trial court upon perusing the evidence adduced by the prosecution and after hearing the arguments of both sides found accused-1 not guilty and acquitted him and held accused-2 guilty under S.7(i) and 16(1)(a)(i) read with S. .2(ia)(a) and (m) of the Prevention of Food Adulteration Act. The trial court after questioning accused-2 about the sentence and finding that he was a first offender sentenced him to three months of rigorous imprisonment and to a fine of Rs. 500.

Against that judgment an appeal was preferred before the Sessions Court of Tiruchi. The Sessions Court, after hearing the arguments put forth on behalf of the accused, dismissed the appeal by judgment, dated 22.7.1983. As against that judgment the present revision is filed.

Following were the grounds raised by the revision petitioner--

The court below ought to have held that the petitioner herein has not completed 18 years on the date of offence and ought to have tried the case under the provisions of Children Act.

The lower Court ought not to have convicted the petitioner on believing the uncorroborated testimony of P.W. 1 when the sale of milk by the petitioner itself was disputed.

The Court below ought to have seen that the Food Inspector failed to follow the formalities prescribed under Prevention of Food Adulteration Act and Prevention of Food Adulteration Rules which are mandatory.

The lower Court ought to have acquitted the petitioner on the ground that stirring was not done properly, which requires some instruments and expertise and as such the sampling of milk was not proper.

The Court below ought to have seen that the mandatory provision laid down in S. 13(2) has not been properly complied with and the same has caused prejudice to the petitioner.

The Court below ought to have seen that A1 is the owner of the milk and the petitioner is not at all concerned with the sampling of the milk and hence the conviction of the petitioner is liable to be set aside. In any event the sentence is severe.

Grounds Nos 1 and 4 were not raised before the appellate Court and therefore the revision petitioner cannot raise them for the first time in this revision. Since they contain points of fact Grounds Nos. 3 and 5 were raised before the appellate Court. The appellate Court has discussed in its judgment all the steps taken by the Food Inspector, before and after the filing of the complaint before the Magistrate Court and found that all the prescriptions of law have been followed. In this revision petition, the revision petitioner has not indicated which finding of the appellate Court was wrong and for what reason.

Therefore the grounds have no merit whatsoever.

What remains is grounds Nos 2 and 6. Let us take first ground No. 2. In a case of this nature, there cannot and need not be corroborating witness. The Food Inspector, who is a responsible officer has to be believed in his statement reciting what he has accomplished in the performance of his duty unless the cross examination shows that there was some lapse or prejudice on the part of the Food Inspector. It is not so in this case. The contention of the revision petitioner that the milk he had in his possession was not for sale cannot be accepted, because if it was so, lie ought not to have sold to the Food Inspector 750 Ml of milk, when the Food Inspector approached him for such a purchase. Secondly, in the statement given to the Food Inspector immediately on 28.9.1981, under Ex. P1, the petitioner stated that he was working as a salesman and that the milk he was having on 28.9.1981 was the milk for sale belonging to accused 1. It is thus found that this ground of revision has no merit whatsoever. As far as ground No. 6 is concerned through the revision petitioner has from the very first opportunity been saying that the milk belonged to accused 1, there is nothing on record to show that the can was sealed and was bearing the seal of accused 1, so that the responsibility for the adulteration may be attributed to accused-1. When the can is not sealed, there is every possibility for the salesman like the petitioner adding water to the milk. In fact, the deficiency found, viz., the low percentage of solids-not-fat could result from the addition of water. The man, who directly sells, is under the Act primarily responsible unless the circumstances show that he was not and could not have been responsible and aware of the adulteration. Therefore this ground also cannot be accepted.

In the result, the revision petition is dismissed.