- (1.) Y. R. MEENA, J.- This revision petition is directed against the judgement of Addl. Sessions Judge, Bhilwara dated 11. 3. 81 by which he convicted and sentenced accused petitioner under Section 7 read with Section 16 of the Prevention of Food Adulteration Act, though he reduced the sentence of rigorous imprisonment from six months to three months and fine from Rs. 1000/- to 500/- and in default of payment of fine to further undergo one month's imprisonment. Relevant facts are that on 23. 6. 76, Food Inspector Pushti Ballabh Pandey took sample of milk by purchasing 650 ml. milk from the accused petitioner. The sample was taken in three bottles. It was sealed and sent to Public Analyst and as per the report of the Analyst is was found as follows :- 1. Fat content 4. 3% 2. Solids non-fat 4. 6. % 3. Test for Starch Positive 4. Test for cane sugar Negative 5. Starch present 0. 6%
(2.) THE report further reveals that milk contained 45% added water and also 0. 6% stretch. Permission was obtained for initiating the Criminal action against the accused petitioner. Statements of Pushti Ballabh Pandey were recorded by the Magistrate. Accused was charged under Section 7/16 of the Food Adulteration Act. Accused denied the charge and claimed to be tried. In trial, Prosecution examined two witnesses. Accused in his statement denied of having committed any offence. After considering the evidence on record and statements of the prosecution witnesses, Magistrate was of the view that accused had committed the offence and held him liable for punishment under Section 7 read with Section 16 of the Food Adulteration Act. He convicted the accused and sentenced him six month's R. I. and fine of Rs. 1000/ -. Accused carried the matter in appeal before learned Addl. Sessions Judge, Bhilwara. The learned Addl. Sessions Judge after considering the issues, sustained the conviction of the accused petitioner, however, he reduced the sentence from six months' to three months and fine from Rs. 1000/- to 500/ -. Being aggrieved from the Judgement of the learned Addl. Sessions Judge, accused petitioner has filed the revision petition in this court. Learned counsel for the accused petitioner Shri Rastogi argued that milk was not purchased from the accused petitioner nor the milk in question was found in possession of the accused petitioner. His second argument was that the sample was not taken after stirring the milk. The third argument was that the specimen impression of the seal was not sent separately to the Public Analyst i. e. in violation of Rules 7, 17 and 18 of the Act, no conviction should be there for such violation. His last argument was that the Act regarding sample reaching intact to the Analyst was hot supported by complete evidence, therefore, there is no justification in convicting the accused petitioner. On the other hand, the learned Public Prosecutor Shri Choudhary submitted that before the Courts below, the issue regarding violation of Rules 7,17 and 18 was considered in detail and it was found that there was no violation of Rules 7,17 and 18. The seal was found intact by the analyst. The sample taken from the milk in question was found to be adulterated. Further, on record it is proved that milk was purchased from the accused petitioner and payment was made, therefore, there is no substance in the submissions, the conviction was justified. After hearing the rival submissions and perusing the record, I found no substance in the argument of the learned counsel for the petitioner that milk was not purchased from the accused petitioner. The milk was purchased from the accused petitioner Ex. P. 2. is the receipt on record which is signed by accused Motilal. There is no substance in the argument of learned counsel Shri Rastogi that the action of Food Inspector was in violation of Rules 7,17 and 18. From the sufficient evidence on record it is clear that the sample was properly sealed, compared and found intact by the public analyst. Regarding no proper steps being taken, while the samples were taken from the milk and sealed, Shri Rastogi submitted that samples were taken without stirring the milk, therefore, the samples did not represent the true picture of the milk to be tested. I agree with the submission that Inspector had taken the sample without mixing the milk thoroughly either by stirring milk by long handle deeper or shaking gently so that the sample to represent the true picture of the milk. That has not been done and nothing was found on the record that Inspector had taken the steps so that the sample taken represented the correct picture of the milk which was to be tested. When the Inspector has failed to take the steps for the correct representation of the sample, the conviction of the accused petitioner is not justified. That has been held by this Court in ease of State Vs. Kachab (1) (Rlw 1977 307 ). There the view has been taken that the Food Inspector while taking the sample of the milk did not take steps to ensure that the milk out of which the sample was taken, represented the milk to be tested as it was not taken either by mixing milk with long handle deeper or by pouring from one vessel to another and held that the acquittal on that ground was justified. Therefore, following the view taken in the case of State Vs. Kachab (supra), there is no justification for conviction as proper steps were not taken while obtaining the sample from the milk to be tested. In the result conviction and sentence sustained by the learned Addl. Sessions Judge, Bhilwara is set aside. The accused is acquitted of the charge levelled against him. He is on bail. His personal bond and sureties shall stand discharged forthwith. . ;