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The Public Prosecutor Vs. Baratam Paparao and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtAndhra Pradesh High Court
Decided On
Judge
Reported in1968CriLJ247
AppellantThe Public Prosecutor
RespondentBaratam Paparao and anr.
Excerpt:
.....it is levied, it would be justified. expressum facit cessare tacitum sections 4 & 3: [v.v.s. rao, n.v. ramana & p.s. narayana, jj] meaning when there is express mention of certain things, then anything not mentioned is excluded. - 1 and 4, (the food inspector and his maistry), and the magistrate held that in view of the fact that the evidence is not clear, it would be unsafe to connect the accused with the crime, and gave the benefit of doubt to them......a-2 was taking three cans of milk tied on to the cycle and a-1 was following a-2. then the food inspector, p.w. 1 asked the two accused to sell the milk for the purpose of analysis in the presence of p.ws. 2 and 3, and thereupon a-1 and a-2 who were keeping two cans separately, took out one can and were pouring milk in the bottles. at this stage, both the accused ran away, with the result that the consideration for the sample purchased could not be paid to either of them. the sample was divided into three parts and one bottle was sent to the public analyst. the public analyst found that the sample contained 4.1 per cent solids and that 54 per cent extraneous water.3. therefore, the food inspector laid the complaint before the lower court.4. the learned magistrate was of the view.....
Judgment:

Obul Reddi, J.

1. The State has preferred this appeal against the acquittal of the two respondents (accused) of an offence under Sections 16(1) and 7 read with Sections 2(i) and (1) of the Prevention of Food Adulteration Act, 1954 read with Rule 44(b) and Rule 50 of the Prevention of Food Adulteration Rules, 1965 by the Additional District Munsif-Magistrate, Srikakulam.

2. The case against the two accused persons is this. A-2 is the servant of A-1 and on 21.5.1964 A-2 was taking three cans of milk tied on to the cycle and A-1 was following A-2. Then the Food Inspector, P.W. 1 asked the two accused to sell the milk for the purpose of analysis in the presence of P.Ws. 2 and 3, and thereupon A-1 and A-2 who were keeping two cans separately, took out one can and were pouring milk in the bottles. At this stage, both the accused ran away, with the result that the consideration for the sample purchased could not be paid to either of them. The sample was divided into three parts and one bottle was sent to the Public Analyst. The Public Analyst found that the sample contained 4.1 per cent solids and that 54 per cent extraneous water.

3. Therefore, the Food Inspector laid the complaint before the lower Court.

4. The learned Magistrate was of the view that there was no sale of milk to P.W. 1 and that the identity of the two accused has not been established. It should be remembered that the sale of a sample of any food article to a Food Inspector is also a sale within the definition of Section 2(xiii) of the said Act which runs as follows:

'Sale' with its grammatical variations and cognate expressions, means the sale of any article of food, whether for cash or on credit or by way of exchange and whether by wholesale or retail, for human consumption or use, or for analysis, and includes an agreement for sale, an offer for sale, the exposing for sale or having in possession for sale of any such article, and includes also an attempt to sell any such article.

Whatever be the lingering doubt, if any, as to whether 'sale' for analysis is a sale within the definition of Section 2(xiii) of the Act, the Supreme Court has set at rest that doubt and laid down in K. Mangaldas Raghavji Ruparel v. State of Maharashtra : 1966CriLJ106 , as follows:

The Act gives a special definition of 'sale' in Section 2(xiii) which specifically includes within its ambit a sale for analysis. A sale for analysis must be regarded as sale even if the transaction contains an element of compulsion.

5. The fact that the accused persons ran; away without accepting the sale consideration; will not make any difference in this case, as; whoever be the Vendors they agreed to sell the milk and in fact delivered the milk by pouring it in the bottles.

8. The next question that arises for consideration is whether the identity of the two accused has been established. P.Ws. 2 and 3 were the mediators who turned hostile to the prosecution in the lower Court. P.W. 2 stated that he was not present at the time of the seizure of the milk, and that he was only asked to come and sign the report. According to him, A-1 was not present and he was unable to identify A-2. To the same effect, is the evidence of P.W. 3. Therefore, the case rests on the evidence of P.Ws. 1 and 4, (the Food Inspector and his maistry), and the Magistrate held that in view of the fact that the evidence is not clear, it would be unsafe to connect the accused with the crime, and gave the benefit of doubt to them. I have no reason to come to a different conclusion.

7. In this view of the case, I am unable to interfere with the acquittal of the accused. The State appeal is, therefore, dismissed.


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