M.M.Gupta - (1.) THIS appeal has been filed by Ram Dhani who was convicted under section 7 read with section 16 (1)(a) of the Prevention of Food Adulteration Act and sentenced to rigorous imprisonment for one year and a fine of Rs. 1,000/-.
(2.) ACCORDING to the prosecution case Food Inspector Narendra Nath Singh intercepted the appellant on 16-10-1975 at 10.45 A. M. in mohalla Brahma Sthan in Azamgarh town. He was carrying on bicycle a container containing buffalo milk for sale. The Food Inspector Sri Narendra Nath Singh gave a notice in Form No. 6 for taking his sample for analysis by the Public Analyst. He accordingly purchased 750 grams of buffalo milk after paying its price Rs. 1.50 to the appellant. The sample was divided into three parts and 16 drops of formalin were put in each sample. The samples were duly sealed. One of them was given to the appellant, another was retained in the office of the Medical Officer of Health, Azamgarh, and third was sent to the Public Analyst. The Public Analyst reported milk fat 1.2% and non-fatty solids 1.8%. The sample was thus deficient by 80% in fatty contents and deficient by 10% in non-fatty solids. This was much below the percentage of fat and non-fatty solids required by the provisions of the Prevention of Food Adulteration Act and rules made thereunder. The prosecution claims that the report of the Public Analyst was sent by Registered post to the appellant. A complaint was thereafter filed after obtaining sanction of the Medical Officer of Health, Azamgarh. The appellant denied that any sample of buffalo milk was obtained from him. He denied having received any notice from the Food Inspector or having received its price from the Food Inspector. He also denied having received sample containing formalin. He further denied having given any receipt of the payment of the price of the sample. He further denied having received by Registered post copy of the report of the Public Analyst. He also denied of the knowledge about the result of the analysis of the sample by the Public Analyst. At the trial the prosecution examined Food Inspector Narendra Nath Singh and the other two witnesses of fact Muneshwar (PW 2) and Jitendra Ram (PW 3). Besides these witnesses Radhey Shyam Misra (PW 4) who is a clerk in the Nagar Mahapalika, Azamgarh stated that receipt no. 1220 dated 22-1-76 related to the sample in question. It appears that PW 2 Muneshwar and PW 3 Jitendra Ram did not support the prosecution. The learned Sessions Judge has relied on the testimony of Narendra Nath Singh (P W 1) and that of PW 4 Radhey Shyam Misra in convicting and sentencing the appellant as stated above.
(3.) THE learned counsel for the appellant has contended that the learned Sessions Judge committed an error by relying on the sole testimony of the Food Inspector and in view of the mandatory nature of the rule 9 (j) of the Food Adulteration Rules the conviction of the appellant cannot be maintained. Rule 9 (j) applies to the facts of the case on the date of occurrence, i.e. on 16-10-1975. Rule 9 (j) as it appiled to the facts of this case stood as follow :- " To send by registered post a copy of the report received in Form III from the Public Analyst to the person from whom the sample was taken within ten days of the receipt of the said report. However, in case the sample conforms to the provisions of the Act or Rules made thereunder then the person may be informed of the same and report need not be sent." ;