R.K.Shukla - (1.) THIS appeal filed on behalf of the Nagar Swasthya Adhikari, Nagar Mahapalika, Allahabad under section 378 (4) CrPC, is directed against the judgment and order dated 25-4-1938 passed by Sri K. P. Mathur, Special Judicial Magistrate, Allahabad whereby he has acquitted Asharfi Lal Yadav, accused-respondent of the charge under section 7/16 of the Prevention of Food Adulteration Act (hereinafter referred to as Act).
(2.) BRIEF facts of the case are that on 19-12-1975 at 1.30 P. M., at Allahpur Matiara Road, Allahabad, Tulsi Ram Dubey PW 1, Food Inspector, Nagar Mahapalika, Allahabad disclosed his identity to the accused and told him that he would take sample of the mills for analysis. After giving notice to the accused in from VI, the Food Inspector took 660 ml., of milk on payment of its price. The Food Inspector has further stated in his cross- examination that he did not purchase 660 ml. milk in one bulk, but he first took 500 ml. then 100 ml. and thereafter 60 ml. approximately. Thereafter he filled the whole 660 ml. milk thus purchased from the accused-respondent in three phials equally after mixing formaline. It is not noted in form VI as to what was the class of the milk purchased as sample. The Public Analyst tested and reported treating it as buffalo milk. On analysis, the Public Analyst found fatty contents 2.6% and non-fatty solids were found 9.9%. Thus there was a deficit of 57% in fatty contents. After obtaining sanction, complaint was filed. The prosecution examined two witnesses, namely, Tulsi Ram Dubey Food Inspector PW 1 and S. C. Srivastava PW 2 in support of its case. The accused-respondent denied sale of milk sample and said that the: Food Inspector did not take milk sample in bulk but each phial was separately filled from the can one by one. After considering the entire evidence, the Special Judicial Magistrate, Allahabad acquitted the accused-respondent on the following two grounds :- 1. That it cannot be said that the prosecution has proved that formaline was added to the milk sample as required under rules 20 and 21. 2. Compliance of Section 11 (1) (b) has not been made out. The Food Inspector did not take milk sample in bulk to be divided in three equal parts. Such sample cannot be said to be worthy of reliance. Tulsi Ram Dubey PW 1, Food Inspector has clearly stated that on 19-12-1975, at about 1.30 p. m. he purchased 660 ml. milk from Asharfi Lal Yadav, the accused respondent and sealed it in three phials after mixing formaline. In the cross-examination, he has stated as under :- "-......Mulzim ke pas 220 ya 660 ml. ka napna nahi tha. Formalin bhi apne satn rakhta hon 660 ml. dudh ikattha nahin liya tha alag alag le kar teno shishion me barabar bhara tha. Mulzim ke pas can tha usi me liya 500 ml. fir 100 ml. liya fir 60 ml. andaz se liya.........."
(3.) FROM the above statement, it is quite clear that the Food Inspector first took 500 ml. milk then 100 ml. and thereafter 60 ml. milk, as there was no pot from which he could measure 660 ml. milk in one bulk, therefore, he took 500 ml. and 100 ml. milk from Napna and 60 ml. milk from his estimate. He mixed the whole 660 ml. milk -and thereafter mixed formaline. Then he divided the sample in 3 equal parts and filled the milk in 3 phials as required by law. Thus there was no contravention of Section 11(1) (b) of the Act. It is not the requirement of Sec. 11 (1) (b) that all the milk should be purchased in one bulk. The only requirement is that the sample milk should be filled in three phials in equal quantity. That has been done in this case. According to Section 11 (1) (b) of the amended Act, the Food Inspector has to divide the sample then and there into 3 parts, mark and seal in such manner as its nature permits and take signatures or thumb impression of the person from whom the same has been taken in such place and in such manner as may be prescribed. According to Section 11 (1) (c) of the Act, he should send one of the parts for analysis to the Public Analyst under intimation to the local Health Authority and send the remaining two parts to the local Health Authority for purpose of preserving the same.;