M.M.Gupta - (1.) THIS revision has been filed by one Ram Asrey, who was convicted by the Chief Judicial Magistrate, Farrukhabad under section 7 read with section 16 of the Prevention of Food Adulteration Act and sentenced to undergo Rigorous Imprisonment for six months and a fine of Rs. 1000/-. His conviction and sentence of imprisonment and fine were confirmed in appeal by the Additional Sessions Judge, Farrukhabad.
(2.) ACCORDING to the prosecution case Shri Ram Singh Gangwar, Food Inspector of Municipal Board, Farrukhabad accompanied by the Chief Food Inspector Shri R. B. L. Sagar inspected the shop of the applicant in Mohalla Nala Machharhatta of Farrukhabad town. 'They found in that shop exposed for sale 8 kg. of buffalo milk stored in a 'Bhagauna'. A notice was given to the applicant that he was Food Inspector and he wanted to purchase milk for analysis by the Public Analyst. ACCORDINGly he purchased 660mili-litres of milk from the applicant after paying its requisite price. The milk was divided into three equal parts and sealed in separate phials after putting in 8 drops of formalin in each one of them as a preservative. One of those phials was handed over to the applicant. The other was sent to the Public Analyst for analysis and the third was retained in the office of the Chief Medical Officer of Health. The report of the Public Analyst disclosed that the sample contained 5% fat and 9% non fatty solids. Thus the sample was deficient in fat contents by, 17%. After receipt of this report, a copy of it was sent to the applicant. A complaint was filed before the Chief Judicial Magistrate after obtaining the sanction of the Chief Medical Officer of Health, Fateh- garh. The applicant was not satisfied with the report of the Public Analyst. He, therefore, requested the Court to send the sample retained by him for analysis by the Director, Central Food Laboratory, Ghaziabad. The result of the analysis made by the Director, Central Food Laboratory was that the sample contained 5.6% fat and 8.7% of milk solids. The opinion of the Director, Central Food Laboratory was that the sample was adulterated. The applicant claimed that he was running a tea hotel and it was the milk meant for use in tea. The sample was forcibly taken. He admitted that his signatures were obtained on the receipt and other documents, but he was not paid any price. He admitted that one of the samples was given to him. It was also claimed that the milk was purchased by him. He further claimed that the Food Inspector had demanded a sum of Rs. 100/-from him towards illegal gratification. Since he was not ready to pay that amount, false complaint was filed against him. The charge was duly framed. At the trial, the prosecution examined Shri Ram Asrey Gangwar, Food Inspector (PW 1) and Shri R. B. L. Sagar, Chief Food Inspector, Etawah (PW 2). The learned Chief Judicial Magistrate found the prosecution case established against the applicant and accordingly convicted and sentenced him. The conviction and sentence were upheld by the learned Addl. Sessions Judge in appeal. The learned counsel for the applicant has contended that in the charge framed by the trial court date and time mentioned are wrong and they have caused prejudice to the applicant and as such the conviction deserves to be set aside. I have carefully considered this contention. It appears to me that it was a clerical typing error on account of which the date and time mentioned in the charge were not correctly mentioned. However, the applicant- himself could not be under any wrong impression about the date on which the occurrence took place or about the time at which the occurrence took place. The applicant has admitted about having signed the receipt and other documents, which are on record. The applicant is a literate person. In those documents date of taking of the sample is clearly mentioned as 29th October, 1976. Apart from it in the examination of the applicant the court mentioned the date as 29th October, 1976. Thus there was no question of any prejudice being caused to the applicant. Moreover this point was neither taken in the trial court nor it was taken before the lower appellate court. I have also found that no such ground has been raised in the revision filed in this Court. Conviction cannot be set aside on any mistake in the charge unless it causes prejudice to the applicant. In my view no such prejudice had been caused to the applicant. There is, therefore, no force in the contention raised by the learned counsel for the applicant.
(3.) IT has also been contended that the provisions of Rule 9 (j) of the Prevention of Food Adulteration Rules, which were in force at the time when the sample was taken were not observed and the conviction, therefore, cannot be maintained. A Division Bench of our High Court has recently held that Rule 9 (j) as it stood after amendment in 1974, was not mandatory in nature but was only directory. The accused will have to show that prejudice was caused to him in case of non-observance of the provisions of Ruie 9 (j). So far as the facts of this case are concerned after the report of the Public Analyst was received, the applicant moved the Chief Judicial Magistrate for sending the sample in his possession to the Director, Central Food Laboratory, who also gave his opinion that the milk in question was adulterated. Thus the question of causing of any prejudice to the applicant on account of non-observance of the provisions of Rule 9 (j) would not be of any help to the applicant. Learned counsel for the applicant has also drawn my attention towards the fact that in a number of documents the Food Inspector had mentioned the word milk buff' and he had not mentioned it as 'milk buffalo'. It appears that he has only abbreviated the word 'buffalo' by using letters 'buff. On this basis the learned counsel has tried to contend that the sample of buffalo milk was not taken. However, in the receipt that was signed by the applicant himself it is mentioned as 'Bhains Ka Doodh'. Moreover there is no milk cattle like 'buff'. Thus there is no doubt about the fact that these sample that was taken was that of the buffalo milk.;