State of M.P. vs Jaheer Khan

Vimla Jain, J.—This appeal has been preferred by the appellant/State against the judgment dated 3.4.1997 passed by the Court of Chief judicial Magistrate, Raisen in Criminal Case No. 1247/91, whereby the respondent has been acquitted from the charge punishable u/s 16(1)(A)(1) read with Section 7(1) of the Prevention of Food Adulteration Act. 1954 (hereinafter referred to as ''the Act''). The prosecution case, briefly stated, is that at the time of commission of the offence, PW 1 K.L. Jaiswal Food Inspector was posted as Sanitary Inspectoral Raisen and was vested with the powers of Food Inspector for the entire Revenue District of Raisen. On 20.11.1990 at about 10:30 a.m., respondent/accused Jaheer Khan, who used to run the business of selling milk at Bus Stand Silwani, was found carrying 8 litre of adulterated milk. The Food Inspector served a notice in Form VI to the respondent/accused and offered to purchase milk and the respondent/accused agreed to sell it. The Food Inspector purchased adulterated milk from the respondent/accused in presence of the witnesses after paying requisite amount. The 750 ml of milk was divided into 3 equal parts, mixed with Formalin, properly sealed in three bottles and signed by Local Health Authority, Raisen. One bottle of sample was sent to Bhopal for analysts under due acknowledgment. Remaining two bottles were deposited in the office of Local Health Authority, Raisen. On analysis, a report from the analyst was received. The analyst opined that the milk was adulterated. On receipt of the report, the Food Inspector obtained sanction for prosecution of the respondent/accused and thereafter the charge-sheet was filed against him for the offence punishable u/s 16(1)(A)(1) read with Section 7(1) of the Act.

The respondent/accused abjured the guilt and pleaded innocence praying therein that he had been falsely implicated in the case.

In order to sustain its case against the respondent, the prosecution examined three witnesses and placed reliance on Ex. P1 to Ex. P3. No independent witness was examined by the prosecution in his support. The respondent did not examine any witness in his defence. After appreciating the evidence, the trial Court did not find the respondent guilty u/s 16(1)(A)(1) read with Section 7(1) of the Act. Being aggrieved by the impugned judgment of acquittal, the instant appeal has been preferred by the State of Madhya Pradesh, after taking leave from this Court on the grounds mentioned in the memo of appeal.

Shri R.S. Shukla, learned panel Lawyer appearing on behalf of the State submitted that the trial Court did not appreciate the evidence in proper perspective. Therefore, the finding of acquittal is erroneous and deserves to be set aside. He prayed that the respondent should be punished.

On the contrary, Smt. Shimla Jain, learned counsel for the respondent submitted that the prosecution failed to prove the case beyond reasonable doubt against the respondent. The trial Court rightly acquitted him from the aforesaid charge. Hence no interference is called for.

The question for consideration in this appeal is whether the trial court committed any error in acquitting the respondent from the charge u/s 16(1)(A)(1) read with Section 7(1) of the Act.

PW 1 K.L. Jaiswal the then Food Inspector stated that in the morning on 22.11.1990, he had gone to bus stand for collecting a sample of food. At that time, the respondent met him with DABRA of milk. He stopped the respondent and gave him his identity. He issued the notice in Form No. VI to him. He stirred the milk of milk pot and purchased 750 ml of milk there from. The respondent told him that it was mixed milk of buffalo and cow. The respondent also told him that he had purchased milk from Silwani for sale. He further stated that the purchased milk was divided into three equal parts, mixed with Formalin and sealed in three bottles before witnesses Jinendra Kumar and Mallu. He also stated that one bottle of sample was sent to Bhopal for analysis with memorandum (Ex. P7). He proved the report of Public Analyst (Ex. P10). He obtained sanction (Ex. P11) for prosecution of the respondent and thereafter the charge-sheet was filed against the respondent. The Local Health Authority, Raisen had sent a notice to the respondent u/s 13(2) of the Act.

In his cross-examination, he admitted that the report by Public Analyst dated 27.12.1990 with the notice was sent on 9.1.1992 to the respondent. Thus, he sent the report to the respondent after about one year. Such long delay is neither acceptable and nor condonable.

Mallu Lal Sahu (PW 2) the witness of seizure memo, had not supported the prosecution case. He was declared hostile by the prosecution.

Jinendra Kumar (PW. 3) is also a witness of seizure memo (Ex. P6). He admitted his signature on Form VI. (Ex. P4), receipt (Ex. P5) and seizure memo (Ex. P6). He stated that the Inspector told him that he took a sample of milk and asked him to sign, therefore, he signed. He also stated that the sample of milk was taken from the hotel. In his cross-examination, he admitted that he kept the milk in his hotel. The inspector took a sample from that milk. He also admitted that he kept the milk after mixing it with water in his hotel for making tea. Therefore, the statement of this witness does not support that the milk was seized from the Dabra of the respondent/accused. The prosecution did not declare him hostile, therefore, it appears that the prosecution relied on the statement of this witness.

The above-said statement does not prove that the milk was seized from the Dabra of the respondent/accused.

In these circumstances, the seizure memo (Ex. P6) is not reliable.

The view taken by the trial Court in acquitting the respondent of the above-said offence is reasonable and balanced on proper consideration of the evidence. In the light of the said discussion, there is no merit in this appeal and it is accordingly dismissed.