1 S. B. Criminal Revision Petition No.140/95 Pema Ram v. The State of Rajasthan. IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR. ORDER PEMA RAM V. THE STATE OF RAJASTHAN S. B. CRIMINAL REVISION PETITION NO.140/95. DATE OF ORDER : AUGUST 12, 2010. PRESENT HON'BLE MR. JUSTICE C. M. TOTLA Mr. Suresh Kumbhat, for Petitioner. Mrs. Chandra Lekha, PP, for the State. BY THE COURT: The revision assails legality of the conviction and sentence awarded of six months simple imprisonment with fine of Rs.1000/- for the offence punishable under Section 16 (1) (a) (i) of the Prevention of Food Adulteration Act in criminal case No.21/89 before the Court of Additional Chief Judicial Magistrate, Merta and upheld by the Court of Sessions Judge, SC/ST Court, deciding appeal No.11/94 on 17.4.95. Petitioner prays that setting aside conviction, he be acquitted of the charged offence of possessing adulterated cow milk for sale. Brief facts, as emerging, are that on 13.10.88, at about 8.30 a.m., Food Inspector PW 1 in Merta city, near Charbhuja temple at or near shop of Chauhan Misthan Bhandar, found Pema Ram s/o. Budha Ram selling cow milk carried on a cycle - PW 1 giving introduction and desire to collect sample, purchased 2 S. B. Criminal Revision Petition No.140/95 Pema Ram v. The State of Rajasthan. 750 ml. for Rs.3/-, obtaining receipt of sale price Ex.P3 and giving form No.6 Ex.P4, intimating of cow milk sample being taken for analysis. The sample equally taken and sealed in bottles and attaching 20 drops of preservative formalin in each closed by stocker, wrapped by paper, each pasted label Ex.P5, affixed paper slip around it, obtained signatures and tied around by thread, sealed each of the bottles, so sealed bottles with one of the prepared copies of Form No. VII Ex.D6, bearing impression of seal, again sealed and a copy for public analyst separately sealed which a part afterwards of deposited to public analyst, obtaining received over leaf Ex.P6. Two copies with remaining part sealed and deposited in the office of local health authority, while taking samples and above proceedings, memo prepared is Ex.P7. Copies of Form No. VII Ex.P6 and keeping one copy with each bottle against closed it. Public Analyst report Ex.P8 disclosed that sample having less than fat and sold is and non-fat, was adulterated, so forwarded was copy to accused, obtaining sanction Ex.P9, complaint presented. Complainant prosecution examined Inspector PW 1 and motbirs PW 2 and PW 3. Accused appellant explains that witness telling false. Learned trial Judge arrived at conclusions and the learned Sessions Judge concurring, affirmed that accused was having cow milk for sale from which sample taken, compliance prescribed made and sample found adulterated one. Learned counsel for the petitioner very thrustly argued that mandatory is that sample be taken after making it homogenous by stirring or in any appropriate way, but 3 S. B. Criminal Revision Petition No.140/95 Pema Ram v. The State of Rajasthan. evidence, in no way, disclose that after mixing appropriately, sample was taken. Learned counsel submits that even the complaint by the Food Inspector does not aver so, which is essential, and Inspector PW 1 does not say so in his deposition. Learned counsel also argues that on the label affixed, not mentioned was that preservative added and if at all mentioned not as required by rules and that provisions of rules 15, 16 and 21 were not complied with. Also argues that not proved and very contradictory is evidence regarding how and in what container g the sample, was taken and then divided. Submits that compliance of S.13 (2) is not made and on the said a.d. receipt Ex.P10, not proved is a signature of the accused and the a.d. bears thumb impression, whereas Inspector speaks of signatures on other papers prepared. Lastly submits that if guilty as the petitioner, per record, remained in custody for about for more than three months, that is about 100 days, the incident is of 1988, so very just and appropriate is to award sentence, only to the extent indicated which exceeds to little three months. Learned counsel for the Petitioner placed reliance on (i) 1998 F.A.C. 401, Sawaran Singh v. State of Haryana (P&H); (ii) 1979 RLW 307, State of Rajasthan v. Kachab; (iii) 1989 (14) R.Cr.C. 365, Municipal Council, Kota v. Kanhaiya Lal; (iv) Labh Singh v. State of Haryana, 1998 (1) FAC 85; (v) 1991 (16) R.Cr.C.235, Mangilal v. State of Rajasthan; (vi) 1991 Cr.L.R. (Raj.) 772, Roshan v. State of Rajasthan; & (vii) 2001 Cri.L.J.2978, Rakesh Kumar v. State of Rajasthan. Postal a.d. receipt of the information to accused with of 4 S. B. Criminal Revision Petition No.140/95 Pema Ram v. The State of Rajasthan. public analyst report per PW 1 is Ex.P10 – Ex.P10 bears thumb impressions and also seems mentioned that “Nishani Pemaram Ghanchi”. The fact that on other prepared documents Exs.P3, 4, 5 and 6 per Inspector are signatures of Pemaran who is the person from whom sample taken. Inspector PW 1 deposed that he finding accused selling cow milk, introducing himself, inspected and accused disclosed the milk to be of cow and he for sample purchased 750 ml. milk obtaining receipt of price paid rupees three and also giving intimation of purchasing sample JENY, then sealed it, taking equally in three dry clean bottles and adding 20 drops of formalin in each bottle on each affixed label, one of which is Ex.P5, bearing signatures of motbirs and accused and then tightly closing it by lid – affixed upto down around bottle paper slip bearing signatures of CMHO obtaining signatures of accused and witnesses who agreed before so and then tieing by thread affixed wax seal. Form No.7 in eight copies, one being Ex.P6, prepared and one separately sealed for public analyst, two for CMHO. Inspector also deposed of doing further as above described. Per Inspector, is milk was given using a measurement, so appeared to be for sale and as accused there showed him receipt of food licence fee, so he did not inquire about licence. Inspector PW 1 has not said anything about mixing the milk in any manner. PW 2 describing of taking sample and directly pouring it into three bottles affixing memos and sealing. Bhura Ram states that milk taken in a “Bhagona” and then poured in three bottles and sealed. Both witnesses say that their signatures are on the memos. Not mentioned in 5 S. B. Criminal Revision Petition No.140/95 Pema Ram v. The State of Rajasthan. complaint Ex.P1 or in any other document, is that this milk by steering or in any other manner, made homogenous. Inspector PW 1 and/or any of two motbirs also do not say so and nothing after suggest so. Given this, this becomes doubtful if the sample of cow milk was taken after stirring or making it homogenous, in any way. For the above described reasons, giving benefit of doubt, the petitioner is to be acquitted. Therefore, other questions raised regarding sufficiency of sentence already undergone to the extent already undergone etc., need not be dealt with. So giving the benefit of doubt, the revision is accepted, the conviction and sentence of the accused petitioner are set aside. The petitioner revisionist is acquitted of the charges levelled against him. (C.M.TOTLA), J. scd 6 S. B. Criminal Revision Petition No.140/95 Pema Ram v. The State of Rajasthan. 7 S. B. Criminal Revision Petition No.140/95 Pema Ram v. The State of Rajasthan.