Prosecution of accused persons not sustainable.

Accused 1 and 2 in C.C. No. 425 of 1977 on the file of the Chief Judicial Magistrate, Kumbakonam, who were charged and under sections 7 (1) and 16 (1) (i) read with section 2 (1-a) (a) and (m) of the Prevention of Rood Adulteration Act (XXXVII of 1954), as amended (hereinafter referred to as the Act) and sentenced to suffer rigorous imprisonment for one year and to pay a fine of Rs. 2,000 in default to suffer rigorous imprisonment for one year, have filed the above revision.

2. The facts of the case are, as follows: The petitioners are running a hotel under the name and style of “Arya Bhavan” in Big Street, Kumbakonam. Both the petitioners are partners in the said hotel. On 30th March, 1977 at 12-10 p.m. the Food Inspector of Kumbakonam Municipality who has been examined as P.W. 1, went to the hotel of the petitioners. The first petitioner (first accused) was looking after the business and the second petitioner (second accused) was not present. Finding five litres of rose mixture made up of milk, water, essence and sugar for sale, the Food Inspector purchased 660 ml. of rose mixture on payment of Rs. 1.80 for the purpose of analysis, after serving the Form VI, notice to the accused which is marked in this case as Exhibit P-1. A cash receipt was also obtained from the first petitioner, which is marked as Exhibit P-2. Both Exhibits P-1 and P-2 were attested by P.W. 2. The mixture that was purchased by P.W. 1, was divided into three parts and was filled up in three separate clean bottles, as required by law, and sixteen drops of formalin were also added to each bottle and the sample bottle were then sealed and packed as per rules. The signature of the first petitioner was also obtained over the slip. One of the sealed bottles was sent to the Public Analyst for analysis, along with Form VII notice which is marked as Exhibit P-3. Another Form VII notice was also sent to the Analyst by separate post. The Public Analyst sent his report Exhibit P-4 to the effect that the rose mixture, that was sent to him for analysis was found deficient in solids not fat to the extent of 41 per cent. A copy of the Public Analyst’s report was sent to the first petitioner under section 13 (2) of the Act, which was acknowledged and the said acknowledgment is marked as Exhibit P-5. Thereafter, P.W. 1 filed a complaint against the petitioner under the aforesaid sections of the Act on 15th June, 1977. After filing the complaint in June, 1977, a notice as contemplated under section 13 (2) of the Act was served on the petitioners on 29th August, 1977, and this is marked as Exhibit P-6. It is not denied that at the time of taking the sample, the first petitioner gave a statement Exhibit P-7 to P.W. 1 that himself and the second petitioner are the partners of the hotel. On the basis of the Public Analyst’s report, charges were framed against the petitioners under the aforesaid sections of Central Act XXXVII of 1954, as amended.

3. When the trial Court examined the petitioners, the first petitioner admitted having sold the rose mixture to P.W. 1. He also stated that it was made up of sugar, water and milk. The second petitioner also admitted that he is one of the partners of the hotel. However, both of them denied that they committed the offence as alleged by the respondent warranting their conviction under the, Act. The petitioners also examined on their behalf D.W. 1 who is a person working in the hotel.

4. The trial Court, on the evidence adduced by the prosecution, came to the conclusion that the petitioners had committed the offence and accordingly convicted them and sentenced each of them to suffer rigorous imprisonment for one year and also imposed a fine of Rs. 2,000 on each of them. Aggrieved by the said conviction, the, petitioners preferred Criminal Appeal No. 202 of 1977 before the Sessions Judge, Thanjavur. The learned Sessions Judge, after scrutinising the entire evidence adduced in this case, confirmed the conviction and sentence impose