K.D Sharma, C.J:— This is an application in revision filed by Govind Narain against the judgment of the Sessions Judge Jaipur City, by which his conviction and sentence under section 7 read with section 16 of the Prevention of Food Adulteration Act, hereinafter referred to as the Act, were confirmed and upheld. The petitioner was prosecuted for selling adulterated Deshi Ghee at Hinda-ki-Mori, Galta Road, Jaipur, in the court of the Chief Judicial Magistrate, Jaipur City, who by his order dated September 29, 1976, found the petitioner guilty of the offence under section 7 read with section 16 of the Act and sentenced him to udergo rigorous imprisonment for six months and to pay a fine of Rs. 1,000/-, in default of payment of fine to suffer further rigorous imprisonment for three months.
2. The brief facts giving rise to this revision petition are as follows:
On March 11, 1974, Ram Gopal Food Inspector visited the shop of the petitioner situated at Hinda-ki-Mori, Gulta Road, Jaipur, at 11 a.m and saw about 70 kgs. of Deshi ghee being kept by the petitioner at his shop for sale in a container. The Food Inspector suspected the Deshi ghee to be adulterated. So he disclose his indentity to the petitioner and purchased 450 gms. Deshi gee for Rs. 9.67 p. from the petitioner. The Food Inspector obtained a receipt Ex. p. 2 for the price of the ghee. The receipt was in the hand of the petitioner's son Ghanshyam. Therefore, the Food Inspector divided the sample of 450 gms. of Deshi ghee into three equal parts and filled each part in a dry and clean bottle which was corked and sealed properly at the spot in the presence of Motbirs, namely, Kundan Singh and Shivaji. The Food Inspector then prepared the necessary memos there and then and later on, sent one bottle containing sample of Deshi ghee to the Public Analyst, Rajasthan, Jaipur, for analysis vide Form No. VII. The Public Analyst analysed the sample and declared the result of the analysis as follows:
“B.R reading at 40°C 41.3 Reichert value 31.5 Fresh fatty acid as oleic acid 0.56% Moisture content 1.43% Baudouin test Negative Added colouring matter Nil Sediment Nil.”
3. In the opinion of Public Analyst, the sample, of Deshi ghee was found adulterated, as it did not conform to the prescribed standard of purity, because of excess of moisture content in it. After obtaining the report of the Public Analyst, the Food Inspector made a complaint against the petitioner in the Court of the Chief Judicial Magistrate, Jaipur City, under section 7 read with section 16 of the Act. The Chief Judicial Magistrate proceeded to try the petitioner for the aforesaid offence. In the course of the trial, the petitioner being dissatisfied with the report of the Public Analyst requested the trial court to send the other sample of Deshi ghee to the Director, Central Food Laboratory for further analysis. The petitioner's request was accepted and the other sealed bottle containing the sample of Deshi ghee was sent to the Director, who also opined that the sample of Deshi ghee was adulterated. The result of his analysis was as follows:
“Butrorefractometer reading at 40 deg. C 41.0 Reichert value 31.2 Free fatty acid as olecie acid 7.7% Baudouin test (for sesamo oil) Negative Test for cotton seed oil Positive added coal tar absent Moisture 3.0”
4. The trial court concluded the trial and eventually came to a conclusion upon evidence on the record that the petitioner was selling adulterated ghee at his shop. He, therefore, convicted and sentenced the petitioner as stated above. The petitioner preferred an appeal against his conviction and sentence but, it was dismissed by the Sessions Judge, Jaipur City. Hence the petitioner has challenged his conviction and sentence in this court by way of this revision petition. I have carefully perused the record and heard Mr. S.N Bhargava assisted by Mr. N.K Maloo and S.B Mathur, Public Prosecutor for the State. Firstly, it has been contended on behalf of the petitioner that the result of the analysis of the sample of ghee as given in the report of the Director, Central Food Laboratory, Calcutta, widely differed from the result of the analysis as shown in the report of the Public Analyst. The quantity of the moisture shown in the report of the Public Analyst dated March 19, 1974, was 1.43% while the report received from the Director, Central Food Loboratory, Calcutta, revealed that moisture in the sample of Deshi ghee was 3%. Like-wise free fatty acid was reported by the Director, Central Food Laboratory to be 7.7% in the sample while the report of the Public Analyst disclosed it to be 0.56%. The Director, Central Food Laboratory found cotton seed oil also in the sample while the report of the Public Analyst is negative for such presence. According to the submission of the learned counsel for the petitioner, the variance between the two reports could not have been possible if the two samples were actually taken from the ghee at the same time.
5. I have considered the above contention. In my opinion, it is not tenable because so far as the report of the Public Analyst is concerned, it stands superseded by the certificate of the Director, Central Food Laboratory which is final and conclusive evidence of the facts stated therein. The Director of the Central Food Laboratory, Calcutta, has given detailed data in his report on the basis of which this court can easily come to a finding that the sample of Deshi ghee taken from the petitioner did not conform to the standard of purity prescribed under the Rules and could safely be held to be adulterated. The Ses sions Judge Jaipur, City, considered the entire evidence on the record and, rightly held that the sample of Deshi ghee sent to the Director, Central Food Labora tory Calcutta was from the same Deshi ghee of the petitioner from which the sample sent to the Public Analyst was taken. Upon close and careful scrutiny of the entire evidence on the record, I find no substantial ground for dis urbing the above finding of the Sessions Judge. Hence, no importance can be attached to the difference found in the two reports regarding the degree of moisture ontents and the acids.
6. Another contention put forward by the learned counsel for the petitioner is that both the courts below committed an error in not placing reli ance on the testimony of Shivaji, P.W 2, who was an independent witness and in whose presence the sample was taken by the Food Inspector. He further urged that Shivaji, P.W 2, clearly stated in his deposition at the trial that the Deshi ghee was in the process of being heated at the time when the sample was taken from it. He further deposed that bottles were cleaned at the shop by water and sample of hot ghee was filled therein immediately thereafter and so the possibility of high degree of moisture in the sample could hot be eliminated altogether. The above contention raised by the learned counsel for the petitioner has been considered and rejected by the Sessions Judge for reasons with which I fully agree and which I need not reproduce for fear of repetition. Suffice it to say that Kundan Singh, P.W 3, who was present at the time of taking the sample did not say in his deposition that the Deshi ghee was in the process of being heated at the time when the sample was taken out of it. Like wise, P.W 4 Bhag Chand also negatived the contention of the learned counsel for the patitioner by stating in his crossexamination that when the sample was taken the Deshi ghee was not hot. Hence, the evidence of Shivaji, P.W 2 that Ghee was in the process of being heated at the time when the sample was taken and the bottles were cleaned with water at the spot is of no material significance in view of the credible evidence of the Food Inspector Ram Gopal and Kundan Singh P.W 3.
7. Mr. S.N Bhargava, learned counsel for the petitioner, further contended that an application was presented by the petitioner to the trial court for sending the part of the sample to the Director, Central Food Laboratory for a certificate. On receipt of an application the trial court was bound to ascertain that the mark and the seal for fastening as provided under clause (b) of sub-section (1) of section 11 of the Act were intact, but the trial court des patched the part of the sample seal to the Director, Central Food Laboratory without ascertaining that the mark and the seal for fastening were intact and not tampered with in any manner and so there was non-compliance with the mandatory provisions of sub-section (2) of section 13 of the Act resulting in great prejudice to the petitioner and causing miscarriage of justice. In support of his above contention, he placed reliance on Rajkumar v. State, 1976 (II) FAC 18. Tezpur Municipality v. Mohanlal, 1977 (II) FAC 167, Modi Dhyabhai v. Jayantilal, 1973 FAC SN 20, Satyanarain v. State of Maharashtra, 1978 (I) FAC 250, and Harchand Gajpal v. The State, 1976 (I) FAC 15.
8. The above contention is devoid of substance, because the Director, Central Food Laboratory clearly stated in his report that the seals were intact on the container and its covering and the sample was in a fit condition for analysis. The trial court sent a Memorandum No. 447 dated 1-7-1974 along-with the sealed sample of Ghee. In the Memorandum No. 447 it is written that a copy of the memorandum of the specimen of the seal used to seal the container and the cover were sent separately by registered post. Hence, the contention of the learned counsel for the petitioner that the trial court did not ascertain that the mark of the seal for fastening on the container and the outer cover of the sample were intact cannot be accepted.
9. The other contention put forward by the learned counsel for the petitioner is that there is no evidence from the side of the prosecution that the samples taken on March 11, 1974, remained intact and were not tampered with by the Food Inspector or by anybody else and so the possibility of their being tampered with cannot be eliminated altogether. In support of his above contention he cited Nihala alias Nihal Singh v. The State of Rajasthan, 1980 Rajasthan Criminal Cases 355 and State of Rajasthan v. Dauiat Ram, 1980 (I) FAC 215. The above contention also has no force, because the Food Inspector definitely stated in his deposition at the trial that soon after taking the sample of the Deshi ghee from the shop of the petitioner, he divided it into three equal parts and filled each part in a dry clean bottle which was duly ccrkedand sealed there and then. Thereafter, on the very day he prepared Form No. VII in his office after giving one bottle to the petitioner. One of the remaining two bottles was deposited by him in the office of the Public Analyst for analysis vide receipt Ex. P. 6. The third bottle was kept by him in safe custody with the Chief Medical and Health Officer which was, later on, produced in the court. Ram Gopal Food Inspector was not crossexamined on this point. Hence, there is no reason to disbelieve his testimony especially when upon careful and close scrutiny it is found credible and there is nothing on the record to contradict it. Lastly, it was argued by the learned counsel for the petitioner that even if the petitioner is held guilty of the offence punishable under section 7 read with section. 16 of the Act, the sentence passed against him is severe in the circumstances of the case and the ends of justice would be met, if the sentence of imprisonment awarded to him by the trial court is reduced to a term already, undergone by him and the fine of Rs. 1000/-, is considerably reduced. In support of his above contention he relied upon Baidya Nath v. State, 1980 (I) FAC 222 and State of Tamil Nadu v. S. Shanumugham Chettier, 1980 (II) FAC 187.
10. I have given my earnest consideration to the above contention. The offence was committed by the petitioner, in the yeay 1974 i.e, 7 years ago. He has already undergone rigorous imprisonment from December 6, 1977 to December 15, 1977. He is not a previous convict for a similar offence. Apart from this, he is an old man of about 69 years. In my opinion, the ends of justice would be met, if his sentence of six months' rigorous imprisonment is reduced to a term already undergone by him. However, the sentence of fine of Rs. 1000/-, and in default to undergo three month's rigorous imprisonment imposed on him by the trial court and confirmed in appeal by the Sessions Judge, Jaipur City, should be maintained. However, I do not consider it a fit case for granting benefit of the provisions of the Probation of Offenders' Act to the petitioner looking to the peculiar facts and the circumstances of this case
11. In the result, I partly accept the revision petition and while maintaining the conviction of the petitioner Govind Narain under section 7 read with section 16 of the Prevention of Food Adulteration Act, reduce the sentence of imprisonment awarded to him by the trial court to a term already undergone by him. The sentence of fine of Rs. 1000/-, and in default to further rigorous imprisonment for three months is however maintained. Two months' time is given to the petitioner to deposit the amount of fine in the trial court, failing which action will he taken against him in accordance with law.
12. Sentence reduced.
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