- (1.) J. C. Mishra, J. This revision is directed against the order dated 18-6-85 passed by the Sessions Judge, Mirzapur dismissing the appeal preferred against the judgment and order dated 17-10- 84 passed by Judicial Magistrate, Mirzapur convicting the revisionist under Section 7/16 Prevention of Food Adulteration Act (hereinafter called 'the Act') and sentenc ing him to rigorous imprisonment for nine months and to fine of Rs. 1,500.
(2.) THE prosecution case is that on 5-8-81 the Food Inspector Shailendra Kumar Singh went at the shop of the revisionist and purchased 500 gm. Ghana dal, divided it in three parts, kept in three clean and dry phials and sent one of them to the Public Analyst. THE sample was found containing 10% khesaridal, which is injurious to health. After obtaining the sanction a complaint was lodged. To prove its case the prosecution examined Hazari Singh who proved reports and sanction for prosecution and senatory supervisor Ram Bali (PW-2 ). THE prosecution also ex amined Wazir Ashraf (PW-3) who proved various documents as also Shailendra Kumar Singh (PW-4) who had taken the sample from the shop of the accused. THE learned Magistrate believed the evidence in support of the complaint and convicted and sentenced the accused as aforesaid. THE appeal preferred by the accused was dismissed and consequently this revision was filed. I have heard Sri R. C. Shukla, the learned Counsel for the revisionist and the learned AGA. The learned Counsel for the revisionist contended that the conviction is bad on account of non- compliance of Section 10 (7) of the Act. It is true that no public witness was present at the time the sample was taken but the Food Inspector has given proper explanation that inde pendent witnesses were not prepared to give evidence and, therefore, the presence of any public witness could not be procured. The explanation in this regard was believed by both the Courts below and there is no reason to take contrary view. Mere non-mentioning of this explanation in the memo by itself cannot be sufficient to discard the evidence of the Food Inspec tor, which is believed on proper apprecia tion by the Courts below. In the cir cumstances of the present case the non examination of an independent witness is hardly relevant more so when nothing could be elicited in the cross-examination to discredit the testimony of the Food In spector. Moreover, according to the Food Inspector 2 or 3 persons were present when the sample was taken. The view taken by the learned Sessions Judge ap pears to be correct.
(3.) IT has been contended that notice in Form VI was not given to the revisionist. Thus, there was breach of Section 11-A of the Act. This plea was also considered by the appellate Court and by a reasoned order the plea that the notice did not bear the signature of the revisionist was repelled. Lastly the learned Counsel con tended that the alleged sample was taken in the year 1984 and after the lapse of 15 years it would not be proper to sent the accused to jail; more so when he has served out at least few days of the sentence awarded. I find merit in this contention.;