- (1.) C. A. Rahim, J. This revision has been directed against the judgment and order of the District and Sessions Judge, Kanpur dated 7-10-1983 dismissing the appeal against the order dated 20-4-1983 passed by the Chief Metropolitan Magistrate, Kanpur in case No. 3433 of 1981. The learned Chief Metropolitan Magistrate convicted the applicant under Section 7/16 of Prevention of Food Adul teration Act and sentenced him to six months' R. I. and pay a fine of Rs. 1,000/ -. Both the judgments have been challenged in this Revision.
(2.) SRI Radhey Shyam, appearing for the revisionist has submitted that the revisionist was not a vendor. Accordingly the milk was not for the purpose of sale or exposed for sale. So the prosecution is not maintainable. He has also submitted that there is no independent witness' in this case and in view of the decision reported in 1983 AWC 92 the evidence of the public witnesses cannot be relied on. Whether the revisionist is a vendor or not that has been discussed fully at internal page 6 of the judgment. The learned judge has also discussed the evidence of the defence witnesses. The defence case was that the milk was being carried for the purpose of preparing Panchamrit, in the house of D. W. 1 Vinod Kumar. D. W. 2 Dinesh Narain Pandey has admitted that Panchamrit is not prepared with goat's milk. Admittedly the milk which was collected as sample by the In spector was mixed milk of cow, goat and she-buffalo. Discussing the evidence of the defence witnesses, the learned Judge has rightly held that the defence version is not true. Moreover, when both the Courts below after going through the evidence have come to a finding that it was exposed for sale, no other opinion can be passed during revision after reassessing the evidence. As to the point whether the prosecution case would suffer for non-ex amination of public witnesses, in the decision Fateh Bahadur Srivastava and another v. State 1983 AWC 92, it has been held that if any independent witness is not available or is not prepared to give evidence the said fact should be mentioned in the memo prepared at the spot by the Inspector. This decision is not applicable in the instant case as one witness was procured at the place of the occurrence who witnessed the incident. The learned Judge at page 4 of the judgment has held that the Inspector was careless in not noth ing down address of this witness, though his signature appears on the memo prepared at the spot. Moreover, in this case besides the Food Inspector one Kalika Prasad (Safai Naik) has appeared as a witness. The learned counsel did not challenge the evidence of these two wit nesses showing that they cannot be relied on. Moreover, in this case the fact of col lecting sample from the place of the occur rence has been admitted by the defence. It was their case that the milk was being carried out for the purpose of sale but for preparing Panchamrit. Considering these facts I do not consider that the prosecution was unable to prove that the milk was exposed for sale and sample was collected therefrom.
(3.) LEARNED counsel has referred the case of Nagar Swasthya Adhikari v. Guru Prasad, 1982 ALJ 149, there it was held that when the milk was deficient of non-fatty solids and not in milk fat and the incident took place six years ago, the ends of justice would meet if the accused is sentenced to pay a fine of Rs. 250/ -. The learned counsel has submitted that the incident took place in the year 1981 and there was variation of non-fatty solds only, so this case is covered by the said decision and the benefit should go to the accused-revisionist. After going through the said decision I find that the leniency showed to the accused in that case will not be avail able to the revisionist as the date of the occurrence of the said case was on 26-1 i-1975. Section 16 of the Prevention of Food Adulteration Act has been amended after the said date, w. e. f. 1-4-1976 to the extent that penalty should be an imprisonment for a term which would not be less than six months but which may extend to three years and the fine which shall not be less than Rs. 1000/- (Rs. one thousand ). The date of the occurrence of this case is dated 25-8-1981, so after the said amendment the principle of the citation cannot be founded. Accordingly, if the conviction is sustained there is, no way left open to a Court but to impose the minimum sen tence provided under the Act. Having all the points failed, the Revision is dismissed. Revision dismissed. .;