C.S.Tiwana, J. - (1.) THIS revision is on behalf of Inder Singh who was convicted for an offence under section 16(1)(a)(i) of the Prevention of Food Adulteration Act by the Judicial Magistrate First Class, Zira, and was sentenced to undergo rigorous imprisonment for one year and to the payment of a fine of Rs. 1000/ -. The Additional Sessions Judge, Ferozepore, by his judgment dated July 18, 1978, maintained the conviction but reduced the sentence of imprisonment to six months.
(2.) DR . Haropinder Singh, Deputy Chief Medical Officer, Ferozepore, had purchased 660 ml. of milk from the shop of a halwai maintained by the petitioner. The petitioner at that time had about 8 liters of unindicated milk from which he sold the sample of milk. In compliance with the rules the purchased milk was put into three bottles and then sealed. The sample sent to the Public Analyst showed that there was milk fat to the extent of 4.4. per cent and milk solids not fat to the extent of 7.4 per cent. The standard for Cow's milk, according to the lower appellate Court, was required to be taken into consideration and the respective percentages for such milk are 4 -00 and 5. In his defence the petitioner got examined the sample of milk which had been handed over to him from the Director, Central Food Laboratory. It than transpired that the milk purchased from the petitioner had 4.1 percent fat and 7.3 per cent Milk solids not fat. The main argument of the learned counsel for the petitioner is that the report produced in defence was not referred to the Petitioner in his examination under section 313 of the Code of Criminal Procedure and for that reason the said report could not be used against him. Section 13(3) of the Prevention of Food Adulteration Act provides that the certificate issued by the Director of the Central Food Laboratory shall supersede the report given by the Public Analyst. In the face of this provision it was urged that it was not possible for any of the Courts below to fall back upon the report of the Public Analyst if the other report was liable to be ignored. The lower appellate Court took this view that the report of the Director, Central Food Laboratory, exhibit DA, having been produced by the petitioner himself no question arose to put the same to him in his examination. In this manner the non -examination of the petitioner was said to have caused no prejudice to him. This view taken, by the Court below is erroneous, as it goes against the holding in Municipal Committee, Amritsar v. Om Prakash, (1966) 68 P.L.R. 793. It is a Division Bench ruling and the position can be made clear by the following quotation from the head note: - Where the trial Court failed to examine the accused and put to him the evidence recorded after his statement was once recorded Held, that doubtlessly the trial Court is given a discretion to examine the accused at any stage other than arising immediately after the close of the prosecution evidence, but then such discretion has to be used judicially and, therefore in conformity with established principles of criminal jurisprudence. It is well settled by now that if a material circumstances emerging from the evidence in the case is intended to be used against the accused, he must be afforded an opportunity of explaining such circumstances and that if such opportunity is not afforded the trial would be vitiated if a prejudice is thereby caused to him. Held, further that, the word "prosecution," however, cannot be read into the first part of sub -section (1) of section 342 of the Code of Criminal Procedure where the language used is "any circumstances appearing in the evidence against him." It is thus clear that the principle enunciated above would apply to all circumstances which go against the accused and which are in tended by the Court to be used in convicting him. Held, therefore, that the principle which enjoins on the trial Court to offer to the accused an opportunity of explaining the circumstances appearing in the evidence against him has to be followed irrespective of the source which supplies such evidence.
(3.) IN spite of the mistaken view of the law taken by the Additional Sessions Judge there is nothing to show that any prejudice has been caused to the petitioner. In the above said reported case the position was quite different. There was a report of the Public Analyst in relation to a sample of ghee. In that report there was no moisture found. However, in the subsequent report obtained from Central Food Laboratory there was found to be moisture to the extent of 1.8 percent. This view was expressed that it was obligatory on the part of the trial Court to put to the respondent in that case that part of Director's certificate in which the percentage of moisture in the sample of ghee in question was stated to be 1.8 per cent and which formed practically the entire case against the respondent. In the instant case no additional constituent was found when the sample was examined by the Central Food Laboratory. Even though there was a slight variation shown in the constituents yet the milk was found deficient in milk solids not lat. If the petitioner had already been questioned in his examination about the deficiency nothing more was required to be asked from him in view of the fact that he himself tendered in evidence report Exhibit D.A. It was not such a case that something new was found in the report in relation to which some explanation from the side of the petitioner was required. I have thus reached this conclusion that examination of the petitioner by putting to him certificate Exhibit DA was at all not necessary and his non -examination on this point has caused no prejudice to him.;