Sohanlal vs State of Rajasthan

H.R. Panwar, J.—This Criminal revision petition is directed against the judgment and order dt. 05.01.1994 passed by Additional Sessions Judge, Nohar (for short ''the appellate Court'' hereinafter) in Criminal Appeal No. 2/92 whereby the appeal filed by the petitioner against the judgment and order dt. 06.02.1991 passed by Additional Chief Judicial Magistrate, Nohar (for short ''the trial Court'' hereinafter) was dismissed.

I have heard learned Counsel for the parties. Carefully gone through the judgment and order of the trial Court as well as of the appellate Court as also the record of the Court below.

It is contended by learned Counsel for the petitioner that before taking sample of the milk by PW-1 Moman Ram, the Food Inspector, on 22.06.1986, the bottles/jars were not cleaned and therefore, the report of Public Analyst do not represent the correct sample of the milk said to have been taken by the Food Inspector. It is further contended that before taking the sample the Food Inspector failed to stir the milk in the container from which the sample was taken and therefore, there is non-compliance of Rule 14 of the Prevention of Food Adulteration Rules, 1955 (for short ''the Rules of 1955'' hereinafter). Learned Counsel for the petitioner has relied on a decision of this Court in Paraga Ram v. State of Rajasthan 2002(2) Cr.L.R. (Raj.) 1609.

Learned public prosecutor supported the judgment and orders impugned.

I have given my thoughtful consideration to the rival submission made by learned Counsel for the parties.

PW-1 Moman Ram, the Food Inspector, in his statement stated that he suspected the petitioner carrying adulterated milk and therefore, he purchased 750 M.L. Milk at a cost of Rs. 2.25 paisa as sample. He further stated that he was having a bag containing various items in which he was carrying the empty bottles and took the sample in those bottles. He admitted that before taking sample, the bottles were not properly washed/cleaned. In whole of his statement, he has not stated that before taking the sample, he stirred the milk in the container and therefore, according to learned Counsel for the petitioner, the sample do not represent the entire milk.

Part-V of the Rules of 1955 provides of Sealing, fastening and Despatch of Samples. Rule 14 of the Rules of 1955 provides the manner of sending sample for analysis. Rule 14 of the Rules of 1955 specifically provides that samples of food for the purpose of analysis shall be taken in clean dry bottles or jars or in other suitable containers which shall be closed sufficiently tight to prevent leakage, evaporation or in the case of dry substance, entrance of moisture and shall be carefully sealed.

In the instant case, as admitted by PW-1, Moman Ram, the Food Inspector, that the sample was not taken in cleaned dry bottles. There is no evidence that the sample was taken in cleaned dry bottles.

Rule 14 of the Rules of 1955 is mandatory in nature as has been held by this Court in Municipal Board, Deoli v. Hemchand and Ors. 1989 RCC 450 wherein this Court held that Rule 14 of the Rules is mandatory and it was necessary for the prosecution to have sufficiently complied with its requirement. It was further held that the burden lies on the prosecution to prove that bottles were dry and clean. It is not for the accused to put question in cross-examination on this point.

In the instant case, the accused cross-examined the witness PW-1 Moman Ram, the Food Inspector, as to whether the bottles were completely dry and clean and Food Inspector admitted that he was carrying certain items in a bag and bottles were also in the same bag and suddenly on suspicion he checked the petitioner and took the sample in those bottles which were in the bag along with many other articles. Thus, there is absolutely no evidence that the sample was taken in dry and clean bottles. In my view, there is violation of mandatory provisions of Rule 14 of the Rules of 1955. In the instant case, there is no evidence that the Food Inspector before taking sample stirred the milk and thus it cannot be said that the sample taken by the Food Inspector represent the entire milk which alleged to have been carried by the petitioner. At any rate, in my view, there is violation of mandatory provisions of Rule 14 of the Rules of 1955 and therefore, both the Courts below fell in error in convicting the petitioner for the offence u/s 7/16 of the Prevention of Food Adulteration Act, 1954.

Consequently, the revision petition is allowed. The judgment and order impugned passed by Additional Chief Judicial Magistrate, Nohar dt. 06.12.1991 and the judgment and order passed by the Additional Session Judge, Nohar dt. 05.01.1994 are hereby set aside. Accused petitioner Sohanlal is acquitted of the charge u/s 7/16 of the Act of 1954. He is on bail, his bail bonds are discharged.