M.S.JOSHI,J. - (1.) Shri Udey Singh Dabas, a Food Inspector of Municipal Corporation of Delhi, purchased a sample of cow's milk from Hari Chand. On a reference made to him in this behalf, the Public Analyst reported that it was adulterated due to 2.79 deficiency in milk solids not fat per cent and 1.7 deficiency in milk fat per cent which was equivalent to 33.6 percentage deficiency in milk solids not fat 9% added water and 14.9 percentage deficiency in milk fat. Hari Chand was found guilty of an offence punishable under section 16 read with section 7 of the Prevention of Food Adulteration Act not only because the milk was adulterated but also because he was not in possession of a licence for dealing in milk. On a complaint lodged by the Municipal Corporation of Delhi Shri J.D. Kapoor, Metropolitan Magistrate, Delhi, sentenced the accused to one and a half years' rigorous imprisonment, Rs. 1,500/- fine and six months' rigorous imprisonment in default for the first mentioned offence and to a fine of Rs. 500/- and three months' rigorous imprisonment in default for the other one. On an appeal taken to the court of Session, Shri K.B. Andley acquitted him of the charge of being not in possession of the licence and reduced his punishment to imprisonment till the rising of the Court and a fine of Rs. 2,500/- and rigorous imprisonment for one year for non-payment of the fine for adulteration of the milk. The Municipal Corporation is aggrieved by the reduction of the sentence and has sought redress by way of the present revision petition.
(2.) This is a case to which the proviso to sub-section (1) of section 16 of the Prevention of Food Adulteration Act admittedly applies and consequently it was competent for the learned Additional Sessions Judge to impose a punishment less than six months' rigorous imprisonment for special and adequate reasons. The reasons given by Shri Andley are in the following para : "It is contended that the appellant is not a previous convict and is a young man aged about 27 years. The case also admittedly falls within the proviso to Section 16 of the Act. The record of the case further indicates that though according to Ex. PE the report of the Public Analyst who initially examined the sample in this case, the milk fat contents were found to be 1.8% still when the said sample was sent to the Director C.F.L., Calcutta, such fat contents in the sample were found to be 2 0%. This difference in the two reports of the same sample also, prima facie, shows that either the lifting of sample by the Food Inspector was not proper or the Public Analyst who initially examined the said sample did not make sincere efforts to correctly analyse the said sample. The appellant has been facing trial in the case for the last more than 11/2 years. Under all these circumstances, I feel that the ends of justice would be met in case the appellant is sentenced to only a fine of Rs. 2500/- for selling adulterated milk."
(3.) The fact that the appellant was not a previous convict was certainly relevant to the matter of quantum of sentence but his ripe age of 27 years did not constitute a mitigating circumstance. There was divergence between the opinion of the Public Analyst and that of the Director of Food Laboratory, Calcutta. This divergence is, however, to be found in almost all the cases for reasons which I am not called upon to explain but as the law stands it is not taken to mean that the lifting of the sample by the Food Inspector was not proper or that the analyst did not make sincere efforts to arrive at a correct conclusion. That upto the time of the decision of the appeal the case had been pending for one and a half years was again not a ground enough for not sending the accused person to jail. And yet I would not interfere with the discretion exercised by Shri Andley because at the moment the matter is more than four years old and I am acting as a revisional court. It is also to be considered that although the appellate Judge's awarding imprisonment till the rising of the Court amounted to erring towards leniency, the amount of fine, Rs. 2,500/-, was quite substantial and the two put together did satisfy the ends of justice more or less.;