Decided on May 14,1963



Amaresh Roy, J. - (1.)This appeal has been preferred by a complainant, the Chairman of the Rishra Municipality, against an order of acquittal passed by the learned Magistrate of Serampore in a prosecution for an alleged offence under Section 7, read with Section 16 of the Prevention of Food Adulteration Act, 1954. The prosecution case was that the accused persons, namely, Madhusudan Dey and Sm. Manjuri Bala Dey, who were the seller and the proprietor respectively of a confectionery shop, had sold curd (Dahi) which, on chemical analysis, was found not to conform to the standard of quality prescribed by the Rules framed under that Act. The charge for storing and selling and exposing for sale adulterated Dahi in that confectionery shop at 78 Grand Trunk Road West, within Rishra Municipality. In the petition of complaint, besides the two accused named above there was another accused person Nishakar Modak, who was said to be an employee at that shop. The Food Inspector of Rishra Municipality, P. W. 1, visited the shop in the morning of December 4, 1958, and took samples of the curd (Dahi). Madhusudan himself wrote out and granted to the Food Inspector a receipt for the price of those samples, which was Ext.3, and the Food Inspector served the notice, Ext.2, on Madhusudan. In both of these documents, 'Dahi' is only mentioned without mentioning the source of milk from which Dahi was prepared. Prosecution alleged that the accused Madhusudan, on being asked, said that, as he had purchased the milk from elsewhere., he could not say if the Dahi was prepared from cows' milk or buffalo-milk. Originally, the three accused persons were tried. At that trial accused Madhusudan Dey pleaded guilty and he was convicted.
(2.)Upon an appeal preferred, the learned Sessions Judge of Hooghly set aside the order of conviction and sentence and sent the case back for retrial. At that retrial, the present respondents Madhusudan Dey and Sm. Manjuri Bala Dey were convicted and each were sentenced to pay a fine of Rs. 50/-, in default, to suffer rigorous imprisonment for one month by the Magistrate of Serampore. Against that order, this Court was moved in revision in Criminal Revision Case No. 436 of 1960 and, by an order dated June 15, 1960, the Rule was made absolute and a retrial was directed by my learned brother Debabrata Mookerjee, J. Thereupon, a fresh trial was held by another Magistrate, Sri A. K. Pain. At the trial, P.W.1, the Food Inspector, gave evidence to the effect that to his question at the time of taking the samples Madhusudan Dey, who was in the shop, could not say whether the curd, that is Dahi was of cows' milk or buffalo's milk. In cross-examination, he denied that there was any signboard outside the shop showing that only cow's milk and cow's milk products were sold there. Other P.Ws. corroborated him on that point. But D.Ws. 1 and 2 deposed that there was sign-board in front of the shop declaring that cow's milk and cowmilk products were sold in the shop and accused Madhusudan told P.W.1 that the sample taken was made of cow's milk. In cross-examination, D.W.1 also said that in the seizure list, Madhusudan wanted to write curd from cow's milk, but the Food Inspector, P.W.1, said that it was not necessary. He did not speak about the receipt, Ext.3. The report of the Public Analyst, Ext.5, shows the result of the analysis was that the curd contained 3.9 of milk-fat and 9.77 of milk solids and the Public Analyst was of the opinion that the sample of Dahi was adulterated. It was not stated in the Public Analyst's report, Ext.5, nor is there any evidence, that there was any examination to ascertain whether the Dahi had been prepared from cow's milk or buffalo's milk. In that state of evidence, the defence contended that as the sample of Dahi was made from cow's milk, on the report of the Public Analyst itself, conformed to the standard prescribed for cowmilk and cowmilk Dahi in Schedule B of the Rules and, therefore, no offence had been committed.
(3.)Prosecution, however, contended that as it was not disclosed whether the Dahi was prepared from cow's milk or buffalo milk, the standard prescribed for buffalo milk as prescribed in Clause A. 11.06 and Clause A 11.01.02 of Schedule B shall apply and, by that standard, the sample was adulterated and an offence has been made out. The learned Magistrate said:
"Now the amendment which requires that any 'dahi' should conform to the standard of dahi from buffalo's milk, unless otherwise declared, became effective only by Govt. Notification D/- 7-12-58. The occurrence is of 4-12-58. The report of the Chemical Examiner shows that if the standard of cow's milk be applied, the dahi is upto the standard. I, therefore, find accused Madhusudan Dey and Nayan Manjuri Dey not guilty of the offence Under Section 16 (1) (a), P. F. A. Act and acquit them Under Section 245 (1) Cr. P. C."
In this order, the learned Magistrate did not consider evidence or come to any finding on the point whether there was any sign board on the shop declaring that only cow's milk and cow-milk products were sold in the shop or whether at the time of taking of the samples, the seller declared that the Dahi was made of cow's milk. Against that order of acquittal, the present appeal has been preferred.

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