ORDER Shiv Shanker, J.
1. This Criminal Revision has been directed against the impugned judgement and order dated 25.5.1987 passed in Criminal Appeal No. 191 of 1984, Rajendra Prasad Sharma v. State of U.P. by Sri D.M. Arya, III Additional District Judge, Bulandhahr, whereby the appeal was dismissed and impugned judgement and order passed by the trial court regarding conviction for the offence under Section 7/16 of the Prevention of Food Adulteration Act was confirmed.
2. Brief facts, arising out of this revision, are that on 14.12.1974 at about 7.45 A.M. accused was going through bicycle with buffalo milk for sale. He was checked at Balipura within the local limits of police station Kotwali by the Food Inspector. On the basis of suspicion, Food Inspector purchased 660 Ml. Milk after payment and same was filled in three phials according to the rules, wherein one sample was sent for Public Analyst. After getting Public Analyst Report, Lucknow, the same was found adulterated as fatty solid 63% and non-fatty solid was less than 63%. Thereafter, complaint was filed by the Food Inspector after obtaining sanction from Chief Medical Officer, Bulandshahar, against accused Rajendra Kumar Sharma and Sukhpal, whose name was disclosed by Rajendra Kumar Sharma, as an owner of the said milk. Both the accused were charged for the offence under Section 7/16(1)(a)(i) P.F.A. Act, 1954, who pleaded not guilty and claimed to be tried.
3. After considering the evidence produced on behalf of the parties, accused Sukhpal was acquitted for the said charge but accused Rajendra was found guilty for the above charge and he was convicted for the said charge. He was sentenced to undergo for a period of six months R.I. with file of Rs. 1,000/- Thereafter, accused Rajendra preferred Criminal Appeal No. 191 of 1984, Rajendra v. State of U.P. and Ors., which was dismissed by the appellate court and conviction and sentence was affirmed.
4. Feeling aggrieved by it the accused Rajendra preferred the present revision in this Court.
5. Heard the arguments of learned Counsel for both the parties and perused the record.
6. It is contended on behalf of the revisionist that second sample of the revisionist was not sent to Center Food Laboratory for its test as the order was passed by the trial court to send the same. Therefore, there is no compliance of mandatory provision under Section 13(2)(d) of the P.F.A. Act. It is further contended that Rule 9(j) of the Act now Section 10(7) of the Act was not followed at the time of taking sample by the Food Inspector. In these circumstance, revisionist could not be convicted for the said charge. It is further contend that the milk from the samples, which were relating to one co-accused Sukhpal, who sent the revisionist as carrier to supply the milk to his friend. He was not the servant of co-accused Sukhpal. This fact was stated to the Food Inspector at the time of taking the sample. Same was also stated at the stage of statement recorded under Section 313 Cr. P.C. but the main accused Sukhpal has been acquitted by the trial court. Therefore, revisionist was also entitled to get benefit of the acquittal. No any other argument made on behalf of the revisionist.
7. On the other had, it is submitted that court below has not committed any illegality and incorrectness in passing the impugned judgement and order.
8. So far as the first contention is concerned that whether Section 13(2) of the Act was complied by the Food Inspector. It is important, to note here that there is no dispute that the copy of the Public Analyst Report was received by the revisionist within time. After filing the criminal complaint, the Public Analyst Report dated 27.1.1975 was received in the Local Health Authority. However, no any application was moved on behalf of the revisionist for the test of second phial from the Center Food Laboratory. According to para 25 of the judgment of the trial court, it appears that order dated 9.10.1975 and 22.11.1975 were passed upon the application of the revisionist for getting test of the second phial. Above sample of adulterated milk was taken on 14.12.94 and order to send for test of the second phial was passed on 9.10.1975 just after ten months. It is important to note here that the milk sample after nine months could not be put for second opinion. In these circumstance, there was no ground to send the second phial of the sample to the Central Food Laboratory. The same will be sent and result would come that the sample is useless. Therefore, no benefit can be given to the revisionist for not sending the second phial of the sample with a delay of ten months. The copy of the Public Analyst Report was received after filing the complaint within time. Thereafter, prayer for sending second sample was to be made before the trial court immediately so that the second phial would be tested by Central Food Laboratory immediately. However, no application was moved immediately after receiving the copy of the Public Analyses Report, therefore, there is no violation on the part of the Food Inspector regarding non-compliance of Section 13(2) of P.F.A. Act.
9. So far as the second contention is concerned. Rule 9(j) of the Act is not mandatory but directory, such finding has been given by the trial court as well as the appellate court on the basis of the observation made in (1) Nanha v. State 1981 ACC 329 (1982 Cri LJ 158)(2) Jai Singh v. State 1980 F.AJ. 10 : 1980 All LJ 394 (3) Ramasrey v. State 1982 ACC 206 1982 All LJ 1138, Nagar Swasthya Adhikari v Ram Kailash 1982 (2) F.A.C., 127 : 1982 Cri LJ 1261. Although, there was sufficient compliance of the Rule 9(j) of the Act according to the evidence of Food Inspector but non-compliance of this rule the accused cannot be acquitted as it is not mandatory but directory.
10. So far as. third contention is concerned. Revisionist is only stated against the co-accused Sukhpal at the time of taking sample and at the time of recording his statement under Section 313 Cr. P.C. that co-accused was the owner of the said milk. Both the courts below have observed that in absence of other evidence, the co-accused Sukhpal was acquitted for the charge and he could not be convicted only on the basis of statement of accused, who is revisionist presently. Finding given by both the courts below is based upon the testimony of P.W. 1 and P.W. 2 that the milk was purchased from the revisionist by the Food Inspector after payment and same was distributed in three phial, wherein one has been sent for public Analyst. Therefore, it is not liable to be deemed that the adulterated milk was not purchased from the revisionist. Therefore, he could not be acquitted with the co-accused Sukhpal. All the three contentions have no force advanced on behalf of the revisionist.
11. I have also perused the judgement and order of the court below. However, there is no illegality and incorrectness in the impugned judgement and order. Thus this revision has no force and is liable to be dismissed.
12. In the result, this revision is hereby dismissed. Impugned judgement and order passed by the courts below are upheld.
13. Interim order, if any, passed is hereby vacated.
14. The accused revisionist is on bail in this revision. His bail is cancelled and the sureties are discharged. He will be taken into custody forthwith and be sent to jail to serve out the sentence awarded by the trial court.
15. The office is directed to send a copy of this order to the court concerned for immediate compliance.