- (1.) INSTANT revision has been preferred against the judgment and order dated 17-7-1985 passed by learned 2nd Additional Sessions Judge, Rampur, in Criminal Appeal No. 172 of 1984, Maqsood v. State and another, by which the appeal was dismissed and judgment and order dated 24-9-1984 passed by learned Judicial Magistrate, Special Court No. 3, Rampur, was confirmed. The learned Judicial Magistrate, Special Court No. 3, Rampur, has passed order of conviction of the revisionist accused under Section 7/16 of the Prevention of Food Adulteration Act and has sentenced him to undergo R. I. of six months and also a fine of Rs. 1000/ -. It was also directed that in default of payment of fine the accused was further required to undergo three months' R. I.
(2.) HEARD Sri Apul Mishra, learned counsel for the revisionist and learned AGA. The fact of the case is that Sri P. K. Saxena, Food Inspector (PW 1) checked the accused revisionist Maqsood at Stadium Road, Rampur with buffalo milk for sale on 24-5-1982 at about 8 a. m. He served a notice upon the revisionist and purchased 660 Ml. milk after making payment of Rs. 2. 25. The milk was divided into three equal parts and was kept in three dried phials. The phials were sealed. One of the phials was sent to the Public Analyst, Lucknow, along with Form No. 7. The rest two phials were sent to the Chief Medical Officer, Rampur. It was reported by the Public Analyst that the milk was adulterated. After obtaining sanction from the Chief Judicial Magistrate the Food Inspector lodged a complaint against the accused, who pleaded not guilty. The prosecution examined P. K. Saxena, Food Inspector, PW 1, who had taken the sample, Sri R. C. Srivastava, another Food Inspector, who had taken charge from Sri P. K. Saxena on his transfer and has lodged complaint against the revisionist. PW 3 is Maqbool Ahmad Khan, who was with P. K. Saxena, Food Inspector, while taking sample of the milk from the revisionist and PW 4 Gyan Chand, who has proved service of notice on the accused revisionist under Section 13 (2) of the Prevention of Food Adulteration Act (hereinafter referred to as the Act) and entry in the dispatch register. The accused did not examine any witness. After appreciating the evidence of the parties the learned Magistrate arrived at the conclusion that the milk was adulterated. It was reported that there was deficiency of 63% Fat and 67% non-fatty solids. It was also held that the revisionist had no licence to sell the milk and therefore, the order of conviction and sentence was passed. Aggrieved there from appeal was filed, which too was dismissed, hence this revision has been preferred.
(3.) LEARNED counsel for the revisionist has submitted that the Public Analyst report was not legally proved as the original was lost. Duplicate was to be proved, which was not proved. It is also submitted that Prevention of Food Adulteration Act contains mandatory technical procedure and in case secondary evidence is not proved the order of conviction could not be passed. A perusal of the record shows that the Munsif Magistrate Court No. 3, Rampur, sent letter to the District & Sessions Judge, Rampur, for the record of Case No. 570 of 1982, State v. Maqsood, under Section 7/16 of the Act, police station Kotwali, Rampur and three other, which were lost by the accused persons. A letter was also sent by him to Superintendent of Police that accused persons of these cases were residents of police station Munda Pandey, district Rampur, and after getting the file lost they were absconding, hence they were required to be arrested. The accused persons were arrested and were bailed out in pursuance of the order passed by the learned District & Sessions Judge, Rampur. Papers were obtained from the office of the Chief Medical Officer and the files were reconstructed. The original papers were proved. The Magistrate reported that reconstruction of the file was got done on the basis of the record available in the office of the Chief Medical Officer. Memorandum to Public Analyst, Lucknow, sent by the Food Inspector on 24-5- 1982, report of the Public Analyst dated 17-6-1982 showing deficiency in milk of 63% fat and 67% non- fatty solids, sanction for prosecuting the accused revisionist made by the Chief Medical Officer on 11-11- 1992, complaint filed by Sri R. C. Srivastava, Food Inspector, Nagar Palika, Rampur on 14-12-1982, postal receipt of the notice sent to the accused revisionist under Section 13 (2) of the Act and original statements of witnesses mentioned above is on the record. When reconstruction was made by the Magistrate after seeking permission from the District & Sessions Judge and report was submitted that lost papers were reconstructed. These papers have rightly been read in evidence by the Courts below. Only copy of the notice served on the accused under Section 13 (2) of the Act was missing and there is specific statement of the PW 2 R. C. Srivastava, Food Inspector, PW 4 Gyan Chand, who was clerk in the office of the Chief Medical Officer, Rampur. The statements of these witnesses are consistent and natural and it cannot be disbelieved. Therefore, the concurrent findings made by both the Courts below that sample of the milk was taken by the Food Inspector from the revisionist and was examined by the Public Analyst, Lucknow, who reported that there was deficiency in the milk, hence it was adulterated and this findings based on evidence, which has been rightly appreciated by both the Courts below. The next submission of the learned counsel for the revisionist is about sentence awarded to the revisionist. 2001 SCC (Criminal) 111, Laskari Ram v. State of U. P. , is cited in which it has been held by Hon'ble the Apex Court that food article, which was sold to the Inspector was sent to the Public Analyst, who after examining the same reported that it had fallen below the standard prescribed for milk regarding fat and non-fat contents. It was observed that the milk being the primary food and adulteration being due to natural causes and not due to human agency, it was proper that minimum sentence should be awarded to the accused. Identical position exists in the instant case. Milk being a primary food and deficiency being result of natural causes and not due to conduct of the accused revisionist. It would be proper if the minimum sentence is imposed on the revisionist and the sentence passed by both the Courts below is modified accordingly.;