Mahavir Singh - (1.) THIS is a revision by Rameshwar alias Ramal against the order dismissing his appeal against his conviction under Section 7/16 of the Prevention of Food Adulteration Act and confirming the sentence of six months' R.I. and a fine of Rs. 1000/- imposed by the trial court.
(2.) THE prosecution case was that Food Inspector Sri H. S. Singh found the applicant selling buffalo milk in village Unche Gaon on 11-10-74 . He took sample from him on payment of Rs. 00.75 P. its price and after dividing into there parts, one part was sent to the public analyst. On report he found the sample defficient in fat content by about 15 percent and deficient in non fatty solids content by about 56%. The applicant denied to have sold the milk. He alleged that a newly born baby was entrusted to him by the village people for bringing up . He was advised by the doctor to give him diluted milk. One Mathura Singh (PW 2), who was cited by the Food Inspector, had taken milk from him but he did not charge any money from him. He examined some witnesses in his defence. The trial court as well as the appellate court believed the prosecution case and rejected the defence contention altogether and it was found that the applicant selling milk. The milk being adulterated the applicant was accordingly convicted as mentioned above.
(3.) IN revision besides taking other usual pleas, a legal point was also raised that the applicant was deprived of his right given to him by law under Section 13 (2) of the Prevention of Food Adulteration Act to get the sample analysed by the Director of Central Food Laboratory inasmuch as he received the notice of the case on 10-9-76 after eleven months of the sample being taken and then it was useless to get the sample analysed. In support of his plea the applicant has relied upon Net Ram v. State, 1966 ALJ 916. In this case it was held that as the notice for the prosecution was received by the accused after more than four months of the date of taking the sample which was the normal period of the article being kept without being decomposed, the applicant was deprived of the right given to him by Section 13 (2) of the Prevention of Food Adulteration Act for getting the article analsyed by the Director of Central Food Laboratory. The case relied upon by the applicant has however been overruled in the Nagar Mahapalika, Ghaziabad v. Gopal, 1974 CrLJ 128. It was held in that case following the Supreme Court view in Babu Lal Hargovind Das v. State, AIR 1971 SC 1277 that where a right to send a sample to Director of Central Food Laboratory is not claimed in trial court but is claimed for the first time in the appellate court, that court should not even consider that plea while deciding the case. Admittedly the applicant had not taken this plea in the trial court. He had actually not taken this plea even at the appellate stage. It is for the first time that he has taken this plea in this Court. So he cannot be allowed to raise this point here.;