- (1.) THIS Criminal appeal under Section 378 Cr. P. C. has been filed against the judgment dated December 19,1980 by which the learned Chief. Judicial Magistrate, Kota, acquitted the respondent in Cr. Case No. 115/1979, from the charges of offence under section 7/16 of the Prevention of Food Adulteration Act.
(2.) I have heard learned counsel for the petitioner Shri Choudhary as also Shri Kejriwal, learned counsel for the respondent. It will suffice to state for the purposes of this appeal that a complaint was filed on July 27,1978, that M/s. Sushil Flour Mill, Vijay Market, Kota, was checked on the above date. 600 Grams of processed turmeric powder was taken as specimen and cost of the same was paid. The turmeric power taken was divided into three parts and put and sealed in clean and dry bottles. These bottles were sent for chemical examination and on receipt of the report after obtaining sanction from the Collector, Kota (Ex. P. 9) a complaint under section 7/16 of the Prevention of Food Adulteration Act, 1954 was filed in Court. It is contended by Shri Choudhary, learned counsel for the appellant that from Ex. p. 8, a report of public Analyst, it is clear that on microscopic-examination, wheat starch was also found in the specimen of turmeric powder, taken from the flour mill of respondent. It is contended that the trial court has erred in acquitting the respondent inspite of the report Ex. p. 8 referred to above, It is submitted that this shows there was adulteration in the turmeric powder. It is also pointed out by the learned counsel that the respondent apart from processing the grinding mill, also sells the same. It is contended by Shri Kejriwal, learned-counsel for the respondent that from Ex. p. 8, the report of Public Analyst, it is clear that turmeric-powder conformed to the prescribed standard in all respects as mentioned in Appendix I. It is, therefore, pointed out that the question that there is any adulteration in the turmeric powder does not arise. However, in the Form III, Ex. P/8, report of Public Analyst, on microscopical examination, wheat starch also found present. It is submitted by the learned counsel that from the name of the concern, i. e. Sushil Flour Mill, it is clear that this is a flour mill, in which wheat and other grains are processed and grinded. Therefore, if in the samples of turmeric powder, microscopic quantity of wheat starch is found, it cannot be said that the material was adulterated as it conformed to all the standards as prescribed by law. It is, therefore, contended that the trial court has rightly come to the conclusion that there was no adulteration in the sample of turmeric powder sent for analysis. On comparing the report Ex. P/8 with the standard laid down in Appendix A-05-20-01, the details mentioned show that the sample conforms in all respects with the standard laid down. There is no column like microscopic examination in Appendix-I, therefore, I do not attach any importance to this remark about result of microscopic-examination. The fact that the sample was within the standard prescribed, means that there was no adulteration as such even as per the report of Public Analyst Ex. P. 8.
(3.) APART from this, it is also contended by the learned counsel that while aming the charge, the respondent-accused was not confronted with the report of Public Analyst, which was necessary to do, so that accused could understand the charge and may be in a position to face and meet the same. The learned counsel has placed reliance on Jagdish Prasad vs. The State of Rajasthan (1 ). It was held by this court in the above case that when the report of Central Food Laboratory is not put to accused in examination under Section 313, the same cannot be used against him. It may be pointed out that as back as in 1953, in case of Hate Singh Bhagat Singh Vs. State of Madhya Pradesh (2), it was held by the Supreme Court that in any circumstances in respect of which an accused was not examined under Section 342 Cr. P. C. (now 313 Cr. P. C.) the same cannot be used against him. In this case also it was, therefore, absolutely necessary that the accused-respondent should have been confronted with the findings of the Public Analyst at the time when the charge was framed so that he was aware of the offence, said to have been committed by him and he could meet the same. From the charge-sheet dated 19. 03. 1980, I find that the accused was not confronted with the report of Public Analyst. On this ground also, it can be said that the report of Public Analyst could not have been used against him. It is further contended by the learned counsel that in the charge-sheet, dated 19th March,1980, it is mentioned that the respondent was keeping the turmeric powder for sale. However , it is pointed out that the respondent runs only flour mill where the processing is made and there is no sale of the goods processed in the flour mill. It is pointed out that even P. W. 2 Laxman Das admits that he did not find customers who might have come to purchase turmeric powder or any thing from the flour mill of the respondent. It is also pointed out that D. W. 1 Jagdish Prasad and D. W. 2 Phool Chandra Jain have also stated that no sale is done from the flour mill of the respondent. When no evidence has been produced on behalf of the prosecution and on the other hand evidence has been produced on behalf of the respondent that no sale of goods is made from the flour mill of the respondent, it cannot be said that he was keeping the turmeric powder for sale. On this ground also it cannot be said that the turmeric powder was meant for sale. From the discussion above, I do not find any force in this appeal, which is, therefore, dismissed. . ;