J.M.L.Sinha, J. - (1.) This revision is directed against the judgment dated 8th April 1981 passed by II Additional Sessions Judge, Nainital in a case under section 7 read with section 16 of the Prevention of Food Adulteration Act.
(2.) The facts of the case, briefly stated, are as follows:- On 17th June, 1979 at about 6.20 A.M. Sri Tilak Raj (P.W. 1) Food Inspector, Khatema took sample out of the milk in the possession of the applicant. Due formalities as prescribed under the law were complied with. One part of the sample was sent to the Public Analyst, who reported it to be adulterated. Thereafter a complaint was filed for the prosecution of the applicant for selling adulterated milk as also for selling it without licence. The applicant denied the prosecution case. The trial court, however, held the applicant guilty on both the counts and sentenced him to six months' rigorous imprisonment and a fine of Rs. 1000/-on the first count and, to a fine of Rs. 500/- on the second count. Aggrieved against it the applicant filed an appeal in the court of Sessions. The learned second Additional Sessions Judge, who heard the appeal, affirmed the conviction of the applicant on both the counts. The sentence awarded to the applicant on the first count was also maintained but the sentence of fine of Rs. 500/- awarded to the applicant on second count was reduced to Rs. 100/-. Dissatisfied with it the applicant has prepared the present revision.
(3.) The only contention raised by the learned counsel for the applicant before me was that there has been no compliance in this case of section 13(2) of the the Prevention of Food Adulteration Act. Section 13(2) requires:- (a) that after prosecution has been instituted the local authority shall send a copy of the report of the Public Analyst to the person from whom the sample was taken. (b) the copy of the report of the Public Analyst shall also be accompanied by an intimation that the person from whose possession the sample was taken, may, if he so desires, make an application to the court within a period of ten days from the date of the receipt of the copy of the report of the Public Analyst to get the sample analysed by the Director of the Central Food Laboratory. I proceed in this case on the assumption that the compliance of section 13(2) of the Act is mandatory. I have examined evidence adduced by the prosecution from that angle. The prosecution has examined Sri Tilak Raj Food Inspector (P.W. 1), Sri C.D. Bhatt, Despatch clerk of the office of the M.O. (P.W. 2) and Sohan Ram Vaccinator as (P.W. 3). Tilak Raj Food Inspector made categorical statement to the effect that after the institution of the prosecution a copy of the report of the Public Analyst was sent from the office of the M.O. to the applicant under registered acknowledgement due cover and that Ext. Ka-10 is the true copy of the letter sent to the applicant along with the copy of the report of the Public Analyst. Sri C.D. Bhatt (P.W. 2) made a statement on the basis of the despatch book of the office of the M.O. that a copy of the report of the Public Analyst was sent to the applicant under registered acknowledgement due cover. He added that the acknowledgement due card was not received back. The document Ext. Ka-10 states that a copy of the report of the Public Analyst was annexed therewith. It further mentions the date on which the proceedings were instituted and that, the applicant could make an application within ten days of the receipt of the letter in the court of II Additional Munsif-Magistrate, for the sample being examined by the Director Central Food Laboratory, if he so desired.;