- (1.) K. D. Shahi, J. This revision has been filed by the revisionist, Angnu against the judgment and order dated 2-4-1983 passed by Sri S. R. Bhargava, the then District and Sessions Judge, Farrukhabad in Criminal Appeal No. 19 of 1983 affirm ing the judgment and order dated 5-1-1983 passed by Sri V. K. Maheshwari, the then Vth Judicial Magistrate and Special Magistrate (Economic offences), Farruk habad convicting the appellant under Sec tion 7/16 of Prevention of Food Adultera tion Act and sentencing him to undergo R. I. for six months and a fine of Rs. 1. 000/- (rupees one thousand) and in default of payment of fine to undergo R. I. for three months.
(2.) THE brief facts of the case are that on 2nd December, 1980 at about 11. 00 a. m. the revisionist was apprehended by Sri D. D. Pal (P. W. 1), Food Inspector while he was selling Ghee in Mohalla Noniyaganj Kaimganj. He took sample of the said Ghee and sent it for examination before the public analyst. THE public analyst found that the sample tested by him con tained vegetable fat or oil in sufficient quanity, which was foreign to Ghee. After initiation of proceedings a notice along with a copy of report of public analyst was sent to the revisionist. He pleaded not guilty of the charges levelled against him and claimed to be tried. It was argued by the learned coun sel for the revisionist that the provisions of Rules 17 and 18 of the Rules framed under the Prevention of Food Adulteration Act, 1954 has not been complied with. The provisions of Rule 9 (A) has also not been complied with. It was further argued that provisions of Section 10, sub- section (7) have also been ignored. I wanted to peruse the records. The adulteration in respect of Ghee, only one witness i. e. Food Inspector was examined in this case, no independent witness was examined. The judgment of the appellate Court as well as the lower Court does not show that any independent witness was procured. The judgment of the lower Court reveals that Sri D. D. Pal, Food Inspector has tried to call a witness but nobody was agreeable meaning thereby that the statement of the Food Inspector is conclusive and if it is to be believed, he will always say that no witness was agreeable. At any rate, for the compliance of Rules 9 (A), 17 and 18of the Rules I wanted to see the record of the lower Court but it was alleged that the entire records of the lower Court with regard to the instant case have been totally weeded out and re-construc tion was not possible. The records of the lower Court to indicate whether provisions of the aforementioned Rules have been complied with or not was neces sary to be seen. If there is any doubt that these provisions have not been complied with, the benefits shall go to the accused-revisionist and not to the prosecution. The learned counsel for the revisionist referred a ruling reported in 1980 (17) ACC page 237, Awadesh and others v. State, wherein it has been held that where the record of the lower Court has been burnt in fire and reconstruction of the records was not possible, the only course open to the appellate Court was to acquit the appellants. The learned counsel for the revisionist also referred the ruling reported in 1992 (29) ACC 89, Phoolsingh v. State of U. P. and another, to show that where the records do not show any receipt that the sample and form No. 7 were sent to public analyst, by Registered Post A/d and if the references do not show that the samples, copy of the memorandum and specimen impressions of the seal were sent to the public analyst, the prosecution has to fail because provisions are mandatory. In the absence of the records such a categorical finding cannot be given, there fore, it is safer to acquit the'accused.
(3.) IN the result the revision is allowed. The revisionist Angnu is hereby acquitted of the offence under Section 7/16 of Prevention of Food Adulteration Act and the judgment and order of both the Courts below is hereby set aside. Revision allowed. .;