J.M.L. Sinha, J.@mdashThis revision arises out of the judgment and order dated 4-5-1978 passed by II Additional Sessions Judge, Aligarh affirming the conviction recorded against him by the trial Court u/s 7 read with Section 16 of the Prevention of Food Adulteration Act.
2. On 28th of August, 1976, at about 8.45 a.m., the food inspector, Aligarh, collected sample out of the milk in possession of the applicant when the latter was carrying it for sale. One part of the sample was sent for analysis which was reported to be adulterated. A complaint was, therefore, filed for the prosecution of the applicant. The defence set up by the applicant was that the milk was not meant for sale and that he did not receive the price thereof from the food inspector. The trial Court, accepted the prosecution case and, convicting the applicant u/s 7 read with Section 16 of the Act, sentenced him to six months'' R.I. and a fine of Rs. 1000/-. Aggrieved against his conviction and sentence, the applicant filed an appeal in the Court of Sessions. Learned Additional Sessions Judge, who heard the appeal, affirmed the conviction recorded against the applicant but reduced the sentence of imprisonment to three months'' R.I. and a fine of Rs. 500/-. Dissatisfied with it, the applicant has preferred this revision.
3. Shri Ravindra Singh, holding the brief for Sri. Kundan Singh, in the first instance, urged that since no price had been received by the applicant, the transaction of collecting sample was not a ''sale'' within the meaning of that term as used in the Act. On a perusal of the record, however, I find that, apart from the statement on oath made by the food inspector in that connection, there was also receipt Ex. Ka-2 in proof thereof. This receipt carries the signatures of the present applicant. There was thus sufficient evidence to warrant a conclusion that the price of the sample had been received by the applicant. The contention raised is, accordingly, rejected.
4. Learned Counsel then contended that the copy of the report of the public analyst was not given to the applicant as was required by law and hence the conviction recorded against the applicant stands vitiated. I have given my Careful thought to this contention but I regret my inability to accept the same. Before the enactment of Act No. 34 of 1976, the provision regarding giving copy of the report of the public analyst to the accused was contained in Rule 9J of the rules framed under the Act. It has been held in couple of cases that Rule 9J was mandatory in nature and an omission on the part of the food inspector to furnish a copy, to the person from whom the sample is collected, has a fatal effect for the prosecution. In'' the present case, the sample was collected after the enactment of Act No. 34 of 1976 by which Rule 9J had been deleted and instead the necessary provision has been incorporated in Sub-section (2) of Section 13 of the Act. It only requires that a copy of the report of the public analyst shall be furnished, to the person from whose possession the sample was collected, after the institution of the prosecution against that person. It does not prescribe any time within which the copy of the report may be furnished to the person concerned. The provision contained in Sub-section (2), therefore, does not have that mandatory effect, which Rule 9J carried. If, however, the applicant contended that the copy of the report of the public analyst was not furnished to him after the institution of the case and prejudice was thereby caused to him, it was necessary for him to raise an objection to that effect in the trial Court. It cannot be successfully urged that whether or not an objection in that regard was raised by the applicant, it was necessary on the part of the prosecution to show that compliance of Sub-section (2) Section 13 of the Act had been made, and omission on the part of prosecution in that regard vitiates the conviction. Since, no objection was raised on behalf of the applicant at any stage during the trial of the case that the copy of the report of the public analyst had not been furnished to him, it is not open to the applicant now to make any grievance out of it.
5. No other contention having been raised, I find that this revision is devoid of substance and must fail.
6. This revision accordingly fails and is hereby dismissed.
