1989 Supreme(Raj) 935
RAJASTHAN HIGH COURT
S.C.Agrawal, J.
Banshi Lal - Appellant
Versus
State of Rajasthan - Respondent
S. B. Cri. Revision Petition No. 200 of 1981.
Decided On : 29-11-1989
For the Petitioner:M.C. Bhandari, T.S. Champawat, Advocates.
For the State: S.S. Vyas, Public Prosecutor.
The purchase of a sample by a Food Inspector in his official capacity cannot be regarded as a purchase under Section 12 of the Prevention of Food Adulteration Act, 1954.
Headnote:
PREVENTION OF FOOD ADULTERATION ACT, 1954 - SECTIONS 9(1), 10, 12, 20 - FOOD INSPECTOR - APPOINTMENT - EFFECTIVE DATE - PURCHASE OF SAMPLE BY FOOD INSPECTOR IN PRIVATE CAPACITY - VALIDITY.
Fact of the Case:
The petitioner, a KIRANA merchant, was convicted under Section 7/16 of the Prevention of Food Adulteration Act, 1954 (the Act) for selling adulterated DESHI GHEE. The Food Inspector, Nakul Singh, had taken a sample of the GHEE from the petitioner's shop on 19th August 1974. The petitioner challenged the conviction on the ground that Nakul Singh was not a Food Inspector on that date as his appointment was effective only from 21st November 1974, the date of publication of the Government Notification in the Gazette.
Finding of the Court:
The Court held that Nakul Singh was not a Food Inspector on 19th August 1974 and his action in taking the sample of GHEE could not be treated as a sample taken under the provisions of the Act. The Court further held that the purchase of the sample by Nakul Singh could not be regarded as a purchase under Section 12 of the Act as it was not made by him as a private person but in his official capacity as Food Inspector.
Issues: 1. Whether the appointment of Nakul Singh as Food Inspector was effective from the date of the Government Notification or from the date of its publication in the Gazette? 2. Whether the purchase of the sample of GHEE by Nakul Singh could be regarded as a purchase under Section 12 of the Act?
Ratio Decidendi: 1. The Court held that the appointment of Nakul Singh as Food Inspector was effective from the date of publication of the Government Notification in the Gazette, relying on the decision of this Court in Madholal v. State, 1980 RLW 55. 2. The Court held that the purchase of the sample of GHEE by Nakul Singh could not be regarded as a purchase under Section 12 of the Act as it was not made by him as a private person but in his official capacity as Food Inspector, relying on the decision of the Punjab & Haryana High Court in State of Punjab v. Shersingh, 1984 (1) FAC 140.
Final Decision: The Court allowed the revision petition, set aside the conviction of the petitioner under Section 7/16 of the Act, and discharged the bail bonds.
JUDGMENT
1. - This revision is directed against the judgment dated 26th May, 1981 passed by the Sessions Judge, Pratapgarh, Camp Chittorgarh in Criminal Appeal No.28 of 1977. The Sessions Judge, while maintaining the conviction of the petitioner under Section 7/16 of the Prevention of Food Adulteration Act, 1954 (hereinafter referred to as the Act), has reduced the sentence awarded to him to six months 'rigorous imprisonment and a fine of Rs. 1,000/-, and in default of payment of fine to undergo rigorous imprisonment for two months.
2. The petitioner carries on business as KIRANA merchant at Chittorgarh, On 19th August, 1974 Nakul Singh, PW-1, Food Inspector, Municipal Committee, Chittorgarh went to the shop of the petitioner and after giving him notice (Ex-P 1) purchased 450gm of DESHI GHEE after paying him Rs. 10.80 as price for the same. The said sample of DESHI GHEE was put in three separate bottles and on of the said bottles was sent for chemical examination to the Public Health Laboratory, Udaipur. The Public Analyst, in his report (Ex-P. 5) expressed the opinion that the sample of DESHI GHEE was adulterated. After obtaining the sanction of the Administrator, Municipal Council, the Food Inspector filed a complaint in the Court of Chief Judicial Magistrate, Chittorgarh. The complainant examined two witnesses-Nakul Singh, the Food Inspector, PW-1 and Kaluram, PW 2. The Chief Judicial Magistrate convicted the petitioner for the offence under Section 7/16 of the Act, and sentenced him to rigorous imprisonment for 7 years and to pay a fine of Rs. 2,000/- and in the event of non-payment of fine to further undergo one year's rigorous imprisonment. On appeal, the Sessions Judge, while maintaining the conviction of the petitioner under Section 7/16 of the Act, reduced the sentence to rigorous imprisonment for six months and a fine of Rs. 1,000/- and further directed that in the event of non-payment of fine, he will undergo two months' rigorous imprisonment.
3. I have heard the learned counsel for the petitioner in support of the revision and the learned Public Prosecutor.
4. The learned counsel for the petitioner has urged that on 19th August, 1974 when the sample of DESHI GHEE was taken Nakul Singh was not a Food Inspector and all proceedings that have taken place on the basis of the said sample were without authority of law and the petitioner cannot be convicted on the basis of the same.
5. In this connection, it may be mentioned that Nakulsingh, P.W.1 was appointed as Food Inspector by Notification of the Government of Rajasthan dated 4th July, 1974 which was published in the Rajasthan Gazette dated 21st November, 1974. Now, the question which requires consideration is whether the appointment of Shri Nakulsingh has to be treated as effective from the date of the Notification dated 4th July, 1974 or from 21st November, 1974 when the said Nonfiction was published in the Rajasthan Gazette. If the appointment of Nakul Singh is taken to be effective from 4th July, 1974 then there is no infirmity in the action of Nakulsingh in taking the sample of GHEE from the petitioner's shop on 19th August, 1974, but, if the appointment of Nakulsingh is treated to be effective from 21st November, 1974. his action cannot be treated as having been taken in exercise of his powers as a Food Inspector.
6. Section 9 (1) of the Act empowers the Central Government or the State Government, by Notification in the Official Gazette, to appoint such persons as it thinks fit having the prescribed qualifications for the post of Food Inspector as may be assigned to them by the Central Government or the State Government, as the case may be. The aforesaid provisions have been considered by this Court in Madholal v. State, 1980 RLW 55 . In that case, the Government Notification appointing Kirparam as Food Inspector was issued on 10th December, 1975 and it was published in Rajasthan Rajpatra dated 8th January, 1976. It was held that the appointment of Kirparam as Food
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