- (1.) THIS revision petition is directed against the Judgment of the learned Sessions Judge, Jhalawar dated 14-9-1977 affirming the conviction of the accused-petitioner u/s 16 (1) (c) of the Prevention of Food Adulteration Act, | 1954 (hereinafter referred to as the Act), as well as the sentence of six months R. I. and a fine of Rs. 1,000/-, or in default to further suffer one and a half months R. I. awarded by the learned C. J. M. Jhalawar vide his judgment dated 13-8-76. It arises in the following circumstances.
(2.) KIRPARAM (PW l) alleging himself to be the Food Inspector, Jhalawar, on suspicion that the accused petitioner, who was a vendor of milk was carrying adulterated milk for sale, wanted to take the sample of the milk from the accused, but the accused, it is alleged, refused to give the sample and spilled the milk from the cans on the ground, and thereby prevented the Food Inspector from taking the sample. A complaint was filed against the accused, and the case of the accused was that the circumstances appearing against him were not correct. On the other hand, a defence was led that the accused had given out to. the Food Inspector that there was no milk with him. The learned C. J. M. convicted and sentenced the accused-petitioner, and, as already observed above, the learned Sessions Judge affirmed the same. The main submission in this revision by the learned Advocate for the petitioner is that Shri Kirparam was not a Food Inspector on 29-12-75 for Jhalawar area, and, therefore, he was not authorised to take the sample under the Act. It may be observed here that this is particularly a question of fact as to whether the Food Inspector was authorised under the Act to take the sample on the date he took the sample, and generally if such an objection is not taken in the trial court or in the appellate court, then the same cannot be allowed to be taken in revision. The obvious reason is that the foundation for such an objection may be laid during the trial of the case either by cross-examining the Food Inspector, or by bringing on record the other material. But, if on a perusal of the complaint, it can be said that the Food Inspector was not authorised to take a sample on the date when he took a sample, than in such a case there will be sufficient material on record, and a point can be allowed to be raised as to whether the Food Inspector was or was not authorised to take the sample. Under S. 9 (1) of the Act, the State Government or the Central Gove-rnment can appoint any person as a Food Inspector only by notification in the Gazette. It can, therefore, be said that unless the appointment is notified, a person cannot be said to be appointed as a Food Inspector. Under S 10 of the Act, a Food Inspector, which term will definitely mean a Food Inspector appointed u/s 9 of the Act has power to take sample of any article of food from any person selling such article or from any person who is in the course of conveying, delivering or preparing to deliver such article to the purchaser concignee. A perusal of S. l6 (l) (c) of the Act will further show that a person can only be found guilty for having prevented a Food Inspector from taking the sample, provided the Food Inspector is authorised by the Act to take the sample* A perusal of the complaint in this case will show that it is mentioned therein that Kirparam was appointed as Food Inspector under Government Notification No. SO. 643 dated 10-12-75 published in Rajasthan Rajpatra (part IV-C) dated 8-1-76. It can, therefore, be said that the Food Inspector Kirparam was appointed as such u/s 9 (1) of the Act, and his appointment was notified in the Gazette dated 8-1-76, unless some other date from which he is appointed is given. Therefore, he could act as Food Inspector from the date his appointment was notified, i. e. from 8-1-76. In the instant case, the sample was taken on 29-12-75, no doubt, after the notification, but before its publication in the Official Gazette. It can, therefore, be said that on 29-12-75 the appointment of Kirparam as Food Inspector had not been notified in the Official Gazette, and as such he was not authorised to take the sample u/s 10 (1) of the Act. An offence under S. 16 (l) (c) will only be committed if a person prevents a Food Inspector authorised by the Act from taking the sample. It can, therefore, not be said that on 29-12-75 the accused-petitioner prevented the Food Inspector from taking the sample, as authorised under the Act. Therefore, the accused-petitioner cannot be convicted u/s 16 (1) (c) of the Act. In the result, the revision succeeds. The judgment of the learned Sessions Judge affirming the conviction and sentence of the accused-petitioner U/s 16 (1) (c) is set aside. The accused-petitioner is acquitted of the charge u/s 16 (1) c) of the Prevention of Food Adulteration Act levelled against him. He is on bail and need not surrender to his bail bonds, which shall stand discharged Fine, if paid, shall be refunded. .;