G.D. Srivastava, J. - (1.) This appeal has been preferred by the Food Inspector, Nagar Palika, Gnaziabad against the order of acquittal of opposite party Bodey passed by the Magistrate first class, Ghaziabad.
(2.) According to the prosecution case, on 7-9-1966 the opposite party was found in possession of cow milk which he had exposed for sale. Sri M.B Lal, Food Inspector took a sample of the milk, filled it in three bottles after mixing formalin. The opposite party was given price of the milk and a receipt was taken from him. From the report of the Public Analyst it appears that the milk was deficient in fat contents by about 91 per cent and was also deficient in non-fatty solids by about 11 per cent. The opposite party pleaded that the Milk was not meant for sale and he also pleaded that it was skimmed milk and he told about it to the Food Inspector. The opposite party also denied having received any price of it. The Magistrate found that the opposite party was not agreeing to sell the milk and, therefore, it was a forced sale. He also observed that because the opposite party had told the Food Inspector on the spot that it was skimmed milk, he could not be convicted. On the basis of these findings, he recorded a finding of acquittal. On behalf of the prosecution, there are three witnesses, namely, Ramji Lal, Food Inspector (P.W. 1) Rishi Ram (P.W. 2) and Mangal Sen (P.W. 3). All these witnesses stated that a sample of the milk in possession of the opposite party was taken in their presence. The Magistrate has observed that because the opposite party was contending before the Food Inspector that it was skimmed milk and, therefore, the sample had been taken forcibly. This appears to be a totally unjustified conclusion. P.W. 2 Rishi Ram simply said that the accused was arguing with the Food Inspector that it was skimmed milk. The witness never said that the accused had refused to accept any price and that he was forced to accept the price and give the sample. I fail to understand how from this statement of P.W. 2 this inference has been drawn. The Magistrate has then observed that from the mere fact that the accused and P.W. 2 had put the thumb impressions on Exts. Ka-1 and Ka-2, it could not be said that they were aware of the contents of the notice and the receipt. This is again a faulty argument. The Food Inspector deposed that he read out the contents of the receipt and the notice to the accused and to the same effect is the statement of P.W. 2. In view of these statements, it was erroneous on the part of the Magistrate to come to the conclusion that the accused was not aware of the contents of these documents. The opposite party cannot escape merely by saying that it was skimmed milk. The fact that the opposite party told the Food Inspector at the time of taking of sample that it was skimmed milk docs not absolve him of the liability to be convicted for selling adulterated milk. There is no such thing known to law as "skimmed milk". The Magistrate did not take the trouble of examining the defence evidence on the point. The learned counsel for the opposite party argued that the milk was not being sold and, therefore, the opposite party could not be convicted. It is not necessary that the milk should be in the actual process of being sold when the sample is taken. It would be enough if the prosecution succeeds in showing that the milk was meant for sale. In his statement, the opposite party said that he was taking the skimmed milk to his cream separating machine and he also said that he was taking milk to one Hari Shanker. It is not clear why the opposite party was taking skimmed milk to the machine. His statement appears to be self contradictory inasmuch as he first said that he was taking milk to the machine and then he said that he had gone to deliver the milk to Hari Shanker. The Food Inspector stated that on enquiry the accused told him that he was taking the milk for sale. From the statement of P.W. 3 it would appear that the quantity of milk found in possession of the opposite party was fifteen seers. It does not appear to be believable that fifteen seers of milk was meant for consumption by an ailing person as sought to be proved by the defence. The order of acquittal passed by the Magistrate is based on erroneous approach and on flimsy grounds. From the evidence it is, therefore, established that the milk was meant for sale and that it was adulterated. For these reasons, the finding of acquittal should be set aside. 1 he matter being already more than eleven years old, I think it would not be proper to send the opposite party to jail for a short period and a sentence of fine alone would meet the ends of justice. In the result, the appeal is allowed. The order of acquittal is hereby set aside. The opposite party is convicted under section 7/16 of Prevention of Food Adulteration Act and he is thereunder sentenced to pay a fine of Rs. 500/-, in default to undergo rigorous imprisonment for six months. The fine should be paid within a month from the date of the receipt of the record by the Court concerned. Appeal dismissed.;