- (1.) THIS revision petition is directed against the judgment of learned Additional Sessions Judge, Bhilwara. The learned Additional Sessions Judge has sustained the conviction of the accused petitioner under Section 7/16 of Food Adulteration Act He, however, reduced the sentence to three months' imprisonment and a fine of Rs. 500/- in default of payment of fine to further undergo one month's imprisonment.
(2.) THE prosecution case is that on 27,11,1975, Food Inspector, Gangapur purchased 660 ml. milk from accused petitioner. It was not pointed out by the accused whether the milk was of buffaloes or cows, therefore, it was taken to be that of buffaloes. Sample was obtained from the purchased milk and sent to public analyst for analysis. It was found that 48% was water in the milk, therefore it was adulterated. A complaint was filed against the accused in the Court of Munsif & Judicial Magistrate, Padampur. Accused was charged-under Section7/16 of the Food Adulteration Act. In trial, prosecution examined P. W. 1 Prakash Chand, Food Inspector, P. W. Bheru Singh and PW 3 Chhaganlal. In defence, witnesses Banshilal and Gopal were examined. Learned Magistrate came to the conclusion that offence under Section 'j/16 of the Food Adulteration Act has been committed by the accused and convicted him under the said section end sentenced him to nine moths' simple imprisonment and a fine of Rs. 1500/-, in default of payment of fine to further undergo simple imprisonment for three months. Against his conviction and sentence, accused cared the matter before learned Additional Sessions Judge, Bhilwara. THE learned Add. Sessions Judge upheld the conviction, however, he reduced the sentence to three months' imprisonment and a fine of Rs. 500/-, in default to further undergo one month's imprisonment. I have heard the learned counsel for the accused petitioner and learned public prosecutor. Learned counsel for the accused petitioner Mr. Rastogi submits that Food Inspector was not entitled to inquire the case as he was not notified in the gazette. Further, the sample was not taken afte,r stirring the milk, therefore, the result of analysis could not be correct. The third submission that no specific section was mentioned in the charge, therefore, no case of conviction. He further submits that APP was not impotent to file challan and no conviction can be based no such challan. On the other hand, learned public prosecutor, Mr. Choudhary, submits that whether the name of Food Inspector was notified or not, was not taken before the lower courts, he can to take this plea now. For sample, whether it was taken after stirring the milk or not, is not known record. The authority for signing the charge has signed after due application of mind therefore, the allegation that no specific section was there and it was without application of mind, is not correct. Instead of dealing all the points, it is to be seen whether there is any material which leads to believe that while taking the sample, the steps were taken by the Food Inspector to ensure that the milk out of which the sample was taken, was mixed throughly either by stirring milk by long handle deeper or by pouring from one vessel to another or shaking it jointly so that sample to represent the correct picture of milk be teste. This has not been found. I do not find any material which reveals that Food Inspector has taken steps to ensure so that the sample may represent the correct picture of the milk is to be tested. A similar question was considered by this Court in the case of State of Rajasthan Vs. Kechab (1 ). NO contrary decision was shown by the learned Public Prosecutor. The before, following the case (supra) of this Court, I find no justification in sustaining the conviction of the accused when no record it cannot be that Food Inspector has taken the steps to ensure that the sample represented correctly, the milk to be tested as it was not taken either by mixing milk either with long handle deeper or by pouring from one vessel to another. On this basis alone I am inclined to accept the claim of counsel that it is not a fit case for conviction.
(3.) IN the result conviction and sentence sustained by the learned Additional Sessions Judge, Bhilwara are set aside. Accused is acquitted of the charge levelled against him. He is on bail. His personal bond and sureties shall stand discharged forthwith. The revision petition is allowed. .;