I.D.Dua, J. - (1.) Shiv Ram has preferred this revision from his conviction under Sec. 16(i)(a) of the Prevention of Food Adulteration Act (hereinafter called the Act) and sentence of rigorous imprisonment for four months and a fine of Rs. 100 in default of which he is to undergo further rigorous imprisonment for a period of two months.
(2.) On 31-5-1961 Shri Ram Datt, who was also tried with Shri Shiv Ram was found with milk which he was to sell to Mukandi Lal at Kandaghat. Shri M. K. Dhir, Food Inspector, served a notice on Ram Datt in accordance with law and purchased 3/4 seers of Milk on payment of price. The sample was duly sealed into three separate phials and the formalities were gone into. The Public Analyst found the sample to be adulterated with 23 per cent of added water. Shiv Ram and Ram Datt were both tried and the Magistrate found Shiv Ram to be guilty of an offence under section 16(i)(a) for selling adulterated milk in contravention of the provisions of the Act; Ram Datt was, however, acquitted because being a servant the Act, was held not to apply to him. For this view reliance was placed on a Madras decision. So far as Shiv Ram is concerned reliance was placed on the statement of Ram Datt, the co-accused at the time of taking sample from him that the milk belonged to Shiv Ram Son of Ram Saran (appellant in this court). The Magistrate, however, noticed that in his statement under section 342, Cr. P C. Ram Datt did not admit this fact to be correct but stated instead that one Shri Devi Ram was the owner of the milk. This Devi Ram appeared as D.W. 3 and deposed that the milk which was entrusted by him to Ram Datt actually belonged to his cousin Shiv Ram accused. The court also took into consideration the statements of D.W.1 Shiv Ram, D.W. 2 Hem Ram and D.W. 3 Devi Ram who stated that Shiv Ram keeps a buffalo and a number of cows, even though he has a very small family consisting of himself, his wife and a minor daughter. It is virtually on this material that the Magistrate found Shiv Ram guilty of the offence under Sec. 16(i)(a) of the Act.
(3.) It is obvious that the learned Magistrate was wholly wrong in considering the statement said to have been made by Ram Datt at the time of securing sample from him as evidence against Shiv Ram.;