Decided on May 02,1980

Chhotelal And Another Respondents


R.K. Vijaywargiya, J. - (1.)The facts giving rise to this appeal briefly stated are as follows. Food Inspector Ramsingh Cbouhan purchased 660 m.1 of milk as sample from the respondent no. 1 on 19-1-1974 at 7.15 a m. at Shankarganj, Indore after giving him requisite notice and payment of price. The sample was divided in three equal parts and after adding the requisite quantity formaline one of the sample bottles was sent to the Public Analyst for analysis. The Public Analyst reported that the sample was below standard. On these facts the respondents were prosecuted of the aforesaid offences.
(2.)The only contention raised by the learned counsel for the appellant is that the respondents were also charged for having vitiated rule 44(k) of the Rules which prohibited only of mixture of different kinds of milk except toned milk, double toned milk, recombined or reconstituted milk or standard milk.
(3.)It is, no doubt, true, that the rule 44 (k) of the Rules was in force on 19-1-1974 when the sample was taken and prohibited any person either by himself or by any servant or agent from selling a mixture of different kinds of milk. However, this rule was deleted by notification No. G.S.R. 205 of 13-2-1974 with effect from 23-5-1974. It appears from the record that although the respondents were charged with the violation of the rule 44(k) of the Rules but at the trial the attention of the complainant was not focused on that aspect of the charge. No evidence was given that the sample taken was mixture of two different kinds of milk and no question was put to any of the respondents on this aspect in their examination under section 313, Cr. P.C. It also appears that it was not urged before the learned trial magistrate that the respondents have vitiated the provisions of rule 44(k) of the rules and they should be punished therefor. The rule itself as stated above has been deleted with effect from 23-5-1974. In the circumstances if the contention raised by the learned counsel for the appellant is to be considered in this appeal the effect would be that the case will have to be remanded for fresh trial. The sample was taken six years ago and the rule which is said to be violated has been subsequently deleted. In these circumstances I am of the opinion that it is not a fit case in which a retrial should be ordered. Therefore, the contention raised by the learned counsel for the appellant cannot be considered in this appeal.

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