R.L.Gulati, J. - (1.) This is a criminal appeal by the Nagar Mahapalika, Agra, against the order of the Magistrate, First Class, Agra, dated 28th March 1966, acquitting the accused of the charge under section 7/16 of the Prevention of Food Adulteration Act. According to the case of the prosecution, the accused Jamuna Dass was found soiling adulterated milk in Mohalla Namak Ki Mandi within the limits of the Nagar Mahapalika, Agra on 20th of April, 1965 at about 6.15 a.m. The accused denied the allegation and stated that he was not selling the milk but was carrying it to a patient. Shri V.N. Singh was the Food Inspector, who took the sample of the suspected milk from the accused. According to him, he divided the sample into three parts and filled the same in three bottles with adequate quantity of formaline by way of preservative. The bottles were duly sealed. One of the samples was given to the accused and the other was sent for analysis to the Public Analyst, Lucknow. According to the report of the Public Analyst, the milk was found to be deficient in fatty contents.
(2.) The learned Magistrate has acquitted the accused on the ground that one Sri Kishan, who had been cited as a witness, had not been examined by the prosecution in spite of several opportunities having been allowed for that purpose. He has, therefore, concluded that the witness has been withheld intentionally and if he had appeared, he would not have supported the prosecution case. The other reason given by the learned Magistrate is that the Inspector had not stated in his statement that the bottles in which the sample of the milk was taken were neat, clean and dry and were not dirty. He has relied upon the decision of the Calcutta High Court reported in Cr. LJ. 1963 at page 448 in which it was held that the accused was entitled to the benefit of doubt, if the Food Inspector did not describe that the sample was taken in dry and clean bottles.
(3.) After having heard Sri B.C. Saxena, learned Counsel for the appellant, I am of the opinion that this appeal must fail because of the non-compliance with the provision of section 10(7) of the Prevention of Food Adulteration Act which provides:- "Where the food Inspector takes any action under clause (a) of sub-section (i), sub-section (2) and sub-section (4) or sub-section (6) he shall call one or more persons to be present at the time when such action is taken and take his or their signatures." Sri Kishan was mentioned as a public witness is the complaint but the prosecution has failed to produce him. It appears that besides the signature of Sri Kishan, the signature of another witness Mewa Singh was also procured by the Food Inspector, but this witness has also not been produced by the prosecution. Unfortunately, the Food Inspector himself has nowhere stated is categorical terms that in compliance with the provisions of section 10(7) he called one or more witnesses at the time he took the samples. Mr. B.C. Saxena, learned counsel for the appellant, stated that it was not necessary to produce any witness because the accused himself has admitted the taking from him of the samples. I am afraid, he is not quite right in this behalf. The accused Jamuna Dass has stated that the samples were taken by the Food Inspector from the milk which he was carrying in a can for a patient and that too forcibly, whereas the prosecution case is that the samples were taken from a which he was carrying about 20 seers of milk. There is therefore no such admission, as has been asserted by Mr. Saxena.;