Decided on July 31,1964



- (1.) This appeal by the State is against the order of acquittal in a Food Adulteration case. The first accused is the Secretary of a Cooperative Society who sent the milk through his servant accused 2 to be sold to the Cooperative Milk Supplies Union, Kottayam. Pw. 1, the Food Inspector purchased 24 ozs. of milk from the second accused on payment of the price thereof. The purchase and the sampling and the service of the notice on accused 2 were all done in the presence of two witnesses and they have attested Ext. P 2 memo prepared by the Food Inspector noting the details of the action taken by him. The sample bottle was handed over to accused 2 and he has acknowledged receipt of it. On analysis the milk was found to be adulterated with not less than 7% of added water. The Food Inspector as well as the attestors gave evidence regarding the steps taken by the Food Inspector in purchasing, sampling etc. Accused 1 admitted having sent the milk through accused 2, but according to him it was pure milk that he sent and accused 2 could not have sold the milk as the pot containing the milk was locked. Accused 2 admitted the sale as well as the signing of the mahazar but contended that no sample was given to him as stated therein.
(2.) The learned District Magistrate accepted the evidence of Pws. 1 to 3 and held that the purchase and sampling were done in conformity with the provisions of S.10(7) and also that the milk was adulterated and convicted the accused. In appeal the learned Sessions Judge while confirming the findings of fact set aside the conviction accepting the defence contention that the failure to get the attestors to sign the intimation given to the accused is fatal to the prosecution. He appears to have relied upon the decision of this court in 1959 KLT 657 .
(3.) The correctness of the findings of fact is not challenged before me by the learned counsel for the accused. His only attempt was to support the acquittal on the strength of 1959 KLT 657. That was a case of an appeal against an order of acquittal. The charge against the accused was that he sold adulterated dahi and the plea of the accused was that what was sold was only skimmed butter milk and not dahi. The accused further contended that no witnesses were present at the time of the purchase and sampling and they had not signed the duplicate of Ext. P 1 intimation. The real question that came up for consideration & was actually considered in that case was the effect of non compliance with the provisions for taking action under S.10, viz., not taking action in the presence of two witnesses & not getting their attestation to the record evidencing such action; the court was not addressing itself to the question as to what is the particular record on which attestation has to be taken. It so chanced that the record that came up for consideration in that case was the duplicate of the intimation form.;

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