Decided on June 18,1969


Cited Judgements :-



- (1.)This is an appeal by the State against the order of acquittal of the respondent of an offence under section 16 (1) read with section 7 (1) (a) and (1) of the Prevention of Food Adulteration Act and Rule 44 (b) of the Prevention of Food Adulteration Rules. The prosecution case is briefly as follows : On 22nd August, 1966 at about 7 A.M. P.W. 1 the Food Inspector of Narasapur saw the accused carrying buffalo milk in a brass pot. He called P.W. 2, a delay at in the Court of the District Munsiff, and, in his presence purchased sample of milk from the accused paying him the price for it. He them followed the precedure prescribed by Section 11 of the prevention of Food Adulteration Act, divided the sample into three parts after adding preservative, put each part into a clean dry bottle, gave one bottle to the accused, sent one bottle to the Court and sent one bottle to the public Analysist for analysis. The report of the Public Analysist showed that the samples contained 4:3 percent of solids not fat as against the standard of 9 per cent solids not-fat prescribed by the rules. The Analysist was of opinion that the sample contained 52 percent of extraneous water.
(2.)The prosecution examined three witnesses P.W. 1 being the Food Inspector who took the sample, P.W. 2 the mediator and P.W. 3 the Food Inspector who succeeded P.W 1. The accused denied the offence and stated that the milk belonged to his landlord and that the Food Inspector caught him when he was taking the milk to him. He examined his landlord as a defence witness. DW. 1 stated that about a year prior to the date on which he gave evidence in Court, the accused came to his house and told him that while he was getting milk for D.W. 1 the Food Inspector caught him and that the Food Inspector wanted D.W. 1 to meet him. D.W. 1 went to the Food Inspector and told him that the milk belonged to him and that the accused was bringing it for him. The Food Inspector, however, prepared a statement that the accused used to sell milk to D.W. 1 and wanted him to sign on it. As it was not a true statement he refused to sign. The learned Magistrate thought that it was the duty of the prosecution to establish that the accused was vendor of milk and that on the day in question he was carrying the milk for the purpose of sale. He observed that there was not an iota of evidence to establish that the accused was a vendor of milk. On the other hand basing on a statement in the cross-examination of P.W. 2 that the accused told P.W. 1 that he was carrying the milk for the purpose of sale and that the milk belonged to Somayajulu his master for whom he was carrying it, he held that at the earliest moment the accused came out with the version that the milk was not intended for sale. The learned Magistrate also relied upon the evidence of D.W. 1 as supporting the version of the accused. The learned Magistrate observed that though a sale to a Food Inspector for Analysis was a sale under section 2 (xiii) of the Act, such a sale was made under compulsive authority of the Food Inspector and therefore it was open to the accused to establish that he was not a milk vendor and that the Milk was not intended for sale. He found that in the present case the accused had established that the milk which he was carrying and from which a sample was taken was not intended for sale, but that it was intended for the personal use of D.W.1 and that the Accused was not a milk vendor. On those findings the learned Magistrate acquitted the accused.
(3.)The learned Public Prosecutor urges that the entire approach of the learned Magirate to the question at issue was wrong and is misconceived. He submits that once sale for analysis is established no further question arises except whether the sample was adulterated. The question whether the article of food which was sold to the Food Inspector was intended for sale or not is entirely irrelevant. It is not necessary for the prosecution to establish that the article of food was intended for sale, nor is it permissible for the accused to attempt to prove that it was not intended for sale. There is great force in the submission of the learned public prosecutor and I find that a plain reading of the provisions of the Act compel me to agree with those submissions.

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