- (1.) S. K. Agarwal, J. Heard the learned Counsel for the applicant and the learned AGA. This revision arises out of an order of conviction under Sections 7/16 of the Prevention of Food Adulteration Act (hereinafter referred to as the Act') dated 26-9-1984, passed in Criminal Appeal No. 138 of 1984, by the learned Sessions Judge, Farrukhabad, confirming the aforesaid conviction by the Munsif Magistrate Vlth, Farrukhabad. The applicant was sen tenced to 6 months RI and also a fine of Rs. 1,000 was imposed upon him. In default of payment of fine, another sentence of 3 months RI was imposed upon him.
(2.) THE facts of the case, in brief, are that a sample of milk was taken by PW 1 Mewa Ram Sharma, Chief Food Inspec tor, from the applicant, Brijbhan. Accord ing to the information conveyed by the applicant that it was she-buffalo milk. THE milk was found to be adulterated. After analysis it was found that only 15% fat contains in it. In this case the sample as taken on 2-2-1982. After receipt of the report of Public Analyst, notice was sent to the ap plicant along with report of the Public Analyst for sending his sample to the Central Food Laboratory (in short called as 'cpu) for analysis as required by the provision of Section 13 (2) of the Act. This notice was sent to him on 23-10-1982. The applicant made an application for sending the sample lying with the Chief Medical Officer (hereinafter called as the 'cmo') for re-analysis to the CFL on 12-11-1982. The report of the CFL was that the sample of buffalo milk was adulterated and did not conform to the prescribed standard. It ap pears from the judgments that this report was not made a basis of prosecution of the applicant. The applicant was continued to be prosecuted on the basis of the report of the Public Analyst. The law as laid down in the Act is that on receipt of the report of the CFL, the report of the Public Analyst will stand superseded. In none of the judg ments it has been brought before the Courts below that what was the result of the analysis of CFL. The percentage-wise result regarding contents of fatty and non-fatty solids was not quoted in ajiy of the two judgments. The Courts below ought to have tried the applicant on the basis of the report of the CFL. Since none of the two judgments contain the said percentage, this Court is at a loss to record any finding on that account. , Except a bald stage state ment that CFL too reported the sample to be adulterated, there is nothing before me. This report should have also been put to the applicant before a conviction could have been recorded against him. Accord ing to the j udgment of the learned Sessions Judge the sample was found deficient in fatty solids only by 15%. The variation in the fat content is, thus, very marginal. It can be for any reason. It may be due to some mistake of calculation made by the Public Analyst as well. The conviction on the basis of Public Analyst's report, thus, become unsustainable for this defect. . The applicant has taken a defence that he was carrying this milk to one Harnath Singh, whose daughter was going to be married. Harnath Singh required 10 Kg. of milk just a day before taking of the sample. Harnath Singh has appeared as a defence witness as DW 1 and has sup ported the case of the applicant. He has stated that the bucket in which the milk was being brought was his and he has also paid a sum of Rs. 25 to the applicant. He has further stated that when the applicant came to him he told him that the sample of this milk was taken by the Food Inspector. He further added that the card for the marriage of his daughter was also extended to the applicant. He further said that he had also met the Inspector and informed him of this fact. According to this witness the applicant does not indulge into busi ness off of milk. He has a grocery shop. He lives in the vicinity of his house. He has also filed the marriage card of his daughter. The learned Sessions Judge has discarded the evidence of this witness on the ground that the Food Inspector has stated that the applicant was also pos sessed of the measurement with him while carrying the milk. The Food Inspector ac cording to the learned Sessions Judge, has stated that the milk in the bucket was 12 Kg. He has given the reason for discarding the evidence of DW 1 that he had asked for only 10 Kg. of milk then why the applicant has carried 12 Kg. of milk.
(3.) IN my opinion these are not strong enough reasons to discard the evidence of this defence witness. The evidence of this witness appears to me reliable. The ap plicant was only carrying this milk for being used in the marriage of the daughter of DW1. As such, the milk from which the sample was taken, was not meant for sale. The applicant according to the defence witness was not engaged in the business of sale of milk. He is engaged in grocery busi ness. Thus, this conviction in view of the above discussion and facts and circumstan ces cannot be sustained. Accordingly, this revision is al lowed and his conviction and sentence are hereby set aside. He is on bail. He need not surrender. His personal bond and surety bonds are hereby discharged. Revision allowed. .;