Om Parkash vs Northern Railway And Ors.
1983 Latest Caselaw 22 Del

JUDGMENT

M.L. Jain, J.

1. This is a revision petition which has arisen in the following circumstances.

2. On 25-9-1978 at about 6.16 p.m. the Food Inspector purchased a sample of cow's milk from Om Parkash, petitioner, who was selling milk in the Railway Colony, Kishan Ganj, Delhi. Upon analysis, the milk was found to be adulterated because it was deficient in non-fatty solids. Second part of the sample was sent to Central Food Laboratory but the bottle was found leaking and the contents decomposed. Upon the third sample bottle being sent to the Central Food Laboratory, the Director reported that the sample was adulterated because the solids non-fat were below the prescribed minimum. The petitioner was convicted under Section 16 read with Section 7 of the Prevention of Food Adulteration Act, 1954. Upon appeal, the judgment was set aside and the case was remanded to the trial court for fresh disposal as it appeared that proper examination under Section 313 Cr.P.C. with regard to certificate of the Director was not made. The trial court then examined the appellant under Section 313 Cr.P.C The accused also led one more witness. The learned Magistrate again held him guilty and sentenced him to rigorous imprisonment for two years and to pay a fine of Rs. 2000/-in default whereof to suffer further rigorous imprisonment for a period of six months. On appeal the conviction was upheld by the learned Addl. Sessions Judge by his order dated 9-12-1982, but he reduced the sentence to rigorous imprisonment for one year and maintained the fine. Hence, the present revision petition.

3. The petition was admitted only on the question of sentence. I have gone through the record of the case and there is nothing that can be urged in favor of the accused. It appears to me that it is not a fit case in which even the sentence should be reduced. Though there is difference between the reports of the Public Analyst and the Director, Central Food Laboratory with regard to the percentage of deficiency in solid non-fat, all the same the sample remains adulterated. It was contended that the third part could be sent to the Director only if the second part was lost or damaged within the meaning of Section 13(2-C) of the Act. In this case, it was neither lost nor damaged, but was only found to be decomposed and, therefore, it was argued that the Director's report should not be given any credence. This contention was raised before the learned lower court also, but it was rejected because the second part became decomposed as the Director noticed leakage and that was certainly a case of damage and the court was entitled to send the third counter part for analysis.

4. The learned counsel urged that the accused has undergone the trial for four years, the deficiency in the non-fat solids was marginal and the petitioner may be given the benefit of probation. He relied upon N.D. M C. v. Bhopal etc. 1981 RLR 409, Ghanshyam Das v. Municipal Corporation of Delhi, 1975 RLR (SC) 278, and Satar Masiah v. The State, 1982 Cr.L.J. 2246. The other side relied upon to the contrary decisions : Municipal Corporation of Delhi v. Mangu Ram, 1975 (2) FAG 16. The learned appellate court has already taken a lenient view in the matter of sentence and I do not think it is a case in which probation be given.

5. I agree with the court below and uphold the impugned judgment and sentence. The revision is, therefore, rejected.