Shri Kant Tripathi, J. - (1.) THE Appellant, Nagar Swasth Adhikari, Nagar Mahapalika, Agra, (now Nagar Nigam, Agra) has preferred this appeal against the judgment and order dated 20.4.1979, passed by Sri N.K. Sharma, Additional Chief Judicial Magistrate, Agra in the Case No. 3454 of 1977, whereby the learned Magistrate acquitted the Respondent Mahendra Singh of the charge under Section 7/16 of the Prevention of Food Adulteration Act 1954, hereinafter referred to as the Act.
(2.) THE facts leading to this appeal are that on 4.3.1976 at about 12.15 p.m., the concerned Food Inspector took a sample of 660 ml. milk from the Respondent after conforming to the formalities enjoined by the Act. The Food Inspector divided the sample into three equal parts and added 18 drops of Formaline of the 40% strength in each part by way of preservative and labelled and sealed them in accordance with the rules and forwarded one sealed bottle of the sample to the Public Analyst for analysis and also delivered one sealed bottle to the Respondent. The Public Analyst submitted his report Ex. Ka -1 to the effect that the sample of the milk was adulterated and deficient both in fat contents and non -fatty solids, respectively, by about 12% and 14%. On receiving the report of the Public Analyst, the Appellant, i.e., Nagar Swasth Adhikari accorded sanction for prosecution of the Respondent and accordingly the complaint was filed against him in the Court of the concerned Magistrate. The Respondent denied the charge and contended that the milk was not for sale. He was taking two litres of cow milk for his brother. The Respondent further denied that he was given any notice or paid any price for the milk. The Respondent has however, admitted that a sealed bottle of the sample was also given to him.
(3.) THE Appellant examined two witnesses, namely, Sri N.N. Srivastava Food Inspector and Sri Mahendra Singh, Sanitary Supervisor. Both these two witnesses supported the prosecution story. The learned Additional Chief Judicial Magistrate acquitted the Respondent on the ground that the Respondent was not given any copy of the report of the Public Analyst and as such he could not exercise his rights under Section 13(2) of the Act. The learned Additional Chief Judicial Magistrate further held that the Rule 9(j) of the Prevention of Food Adulteration Rules, hereinafter referred to as the Rules, was mandatory and its non -compliance was fatal to the prosecution. The learned Magistrate further held that it was the duty of the Food Inspector to send a copy of the report of the Public Analyst to the Respondent within ten days of its receipt. The learned Magistrate found that the Food Inspector had admitted that copy of the Public Analyst's report was not sent to the Respondent in his presence and he had not himself sent it to the Respondent. The learned Magistrate, therefore, acquitted the Respondent due to non -compliance of Rule 9(j) of the Rules as well as Section 13(2) of the Act.;