JAIN, J. - (1.) THIS revision petition is directed against the judgment of learned Addl. Distt. and Sessions Judge, Rajsamand dt. 24. 7. 84 whereby he upheld the conviction u/s. 7/16 of the Prevention of Food Adulteration Act passed against the petitioner by the learned Addl. Chief Judicial Magistrate, Rajsamand on 15. 3. 84 but reduced the sentence from six months S. I. to three months S. I. with a fine of Rs. 500/- and in default of payment of fine to undergo further one and a half month's S. I.
(2.) BRIEF facts of the prosecution case are that on 28. 4. 79, one Harishanker, Food Inspector, Udaipur checked the petitioner near bus stand and took the sample of milk. The sample was found to be adulterated vide Public Analyst report dated 4. 5. 79. A complaint was filed on 28. 12. 79. The petitioner in his statement u/s. 313 has stated that milk contained in 'kothi' did not belong to him but it was of some other person who left it at the place of incident and he has been falsely implicated and pleaded not guilty. The learned Magistrate after conclusion of the trial found the petitioner guilty and sentenced him to six months with a fine of Rs. 500/ -. On appeal, the conviction of the accused was maintained but his sentence was reduced as stated above. Mr. D. S. Shishodia, learned counsel for the petitioner has submitted that the conviction of the petitioner cannot be maintained as solid non fat found in the milk is less 0. 5% only to the prescribed limit and placed reliance on State vs. Kasturilal (1), M. C. D. vs. Jawaharlal (2) and Revta vs. The State (3 ). I have heard learned counsel for the petitioner and perused the record. As per Notification dated 31. 7. 79, the prescribed standard of milk fat is 4. 5% and solid non fat is 8. 05% whereas in the present case as per the report of the Public Analyst, the fat content was 6. 6% and solid non-fat was 8%. In M. C. D. vs. Jawaharlal (supra) it has been held that when percentage of fat was higher than standard and percentage of solid non-fat was slightly lower, and the aggregate of the two was more than the aggregate of the standard, the inevitable inference was that either the test was erroneous or that there was imbalance in the fodder fed to the cow which resulted in high percentage of fat while giving lower percentage in solids non-fat and that, therefore, the accused was rightly acquitted. In the instant case, the admitted position is that solid non fat is 0. 5% less than the prescribed standard. There is no positive evidence regarding the adding of water in the milk by the petitioner and in the absence of evidence it cannot be said that water had been added to the milk. Learned Public Prosecutor has not been able to controvert these facts. The inference that the milk was adulterated, due to negligible difference in solid non-fat cannot be drawn only on the basis of Public Analyst report, particularly when milk fat has been found 6. 6% instead of 4. 8%. Therefore, the possibility of the test being erroneous or the cow was not properly fed cannot be ruled out on account of such a meagre difference of 0. 5% in solid non fat. In view of the case law discussed above and under the facts and circumstances of the case in hand, the conviction of the petitioner cannot be maintained and the orders passed by the learned courts below deserve to be set aside.
(3.) IN the result, this revision petition is allowed. The conviction of the petitioner Heersingh u/s. 7/16 of the Prevention of Food Adulteration Act is quashed. The orders passed by the learned courts below are set aside. The petitioner is already on bail, so he need not surrender. .;