B.S.YADAV,J. - (1.) THE present respondent Jagdish was prosecuted in the Court of the Additional Chief Judicial Magistrate, Jind on basis of a complaint instituted by the Food Inspector for having committed an offence under section 7 read with section 16 of the Prevention of Food Adulteration Act, 1954 (hereinafter called the Act). The learned trial Court acquitted him of the charge framed against him. Feeling aggrieved, the State has come to this Court in appeal. It may be mentioned here that the complaint was also against Avinash Chander, but the learned trial Court discharged him.
(2.) THE prosecution case, in brief, was that on January 18, 1979 Summer Singh Yadav Food Inspector (P.W 1) visited the shop run by Jagdish and Avinash Chander at 3:10 p.m. Dr. R.S. Garg, Deputy Chief Medical Officer, Jind was accompanying the Food Inspector. The respondent was found in possession of 1-1/4 kgs. of unindicated milk for sale. The Food Inspector obtained a sample of milk in accordance with the procedure laid down in the Act and the Rules framed thereunder. On analysis by Public Analyst, it was found to contain only 5.7% of milk fat as against 6%. As the milk was unindicated, therefore, Public Analyst treated it as buffalo's and opined that the milk fat was 5 percent deficient in the sample. The accused was accordingly prosecuted. The defence was that the accused was running a tea-stall and though the milk in the vessel was unindicated, it was cow's milk. The learned trial Court held that on analysis, it was not possible to determine whether the milk was cow's or not and, therefore, the representation made by the accused that it was cow's milk should be relied upon and as the minimum prescribed standard for milk fat in cow's milk is 4 per cent and in the present case, the milk fat was found more than the prescribed standard, therefore, the milk could not be said to be adulterated. Consequently, the accused was acquitted. The learned State counsel argued that the standards of different classes and designations of milk have been given in Serial No. A. 11.01.03 in Appendix B of the Prevention of Food Adulteration Rules, 1955 hereinafter called the Rules) and Note (i) to that Serial number reads as follows :- "When milk is offered for sale without any indication of the Class, the standards prescribed for buffalo milk shall apply." He, therefore, argued that where milk is sold without any indication as to the nature of the same, the same is to be judged from the standards laid down for buffalo's milk. In support of his contention he has cited Shyam Bahadur v. State, 1980 (1) FAC 210, wherein it was remarked :- "Under the provisions of the Prevention of Food Adulteration Act, the food Inspector who takes a sample of food for analysis is authorised to give a notice in writing of his intention to do so to the person from whom the sample is taken. It is not necessary in every case that he must demand a particular type of Food. He can take any article of Food which he suspects to be adulterated or which he suspects would not prescribe to the standard laid down in the Rules. Serial No. 11.01.11 of Appendix (B) has been framed under Rule 5 of the Prevention of Food Adulteration Rules. It lays down the standard for different classes and also the designation of milk. The 'Note' which is attached to these rules is to the effect; that when milk is offered for sale without any indication of the class, the standard prescribed for buffalo milk shall apply. A perusal of this chart indicates that Buffalo Milk, Cow Milk, Goat Milk, Sheep Milk, Standardised or Mixed Milk, Refined Milk, Toned Milk, Double Toned Milk, Skimmed Milk are all mentioned there. The standards have also been prescribed. If the Food Inspector demands any of the various types of Milk, narrated above, or the vendor sells any of the above types of Milk, then the standard prescribed for that particular type of Milk will apply, but if there is no indication either way as to the type of milk which the sample is taken by the Food Inspector, then under the 'Note' referred to above, which in my opinion is nothing more or less than a rule itself, indicates that the standard to be applied for analysis of such milk will be that which has been prescribed for buffalo milk". He has also relied upon Vishnu Dutt v. State of U.P and another,1981 (II) FAC 70, wherein it was held :- "Counsel for the applicant has argued that since the accused had not given out the nature of the milk which he was carrying, therefore, the Public Analyst committed error of law in judging it from the buffalo milk standard. In my opinion, there is no merit in this contention. The note which is attached to the Appendix B of Food Adulteration Rules, clearly indicates that when the sample of milk, offered for sale does not specify or disclose the class to which it belonged the standard prescribed for buffalo milk shall be applicable. That appears to be the correct legal position." The learned State counsel further pointed out that it was not the plea of the accused that the Food Inspector had demanded a particular kind of milk or that while selling milk to him, he (i.e the accused) had told him that it was cow's milk. He drew our attention to the following question put to the accused in his examination under section 313 of the Code of Criminal Procedure and the answer given by him :- "Q. It is in evidence against you that you had 1-1/4 K.G. unindicated milk in a vessel at that time, which was meant for sale. A. It is correct. It is cow's milk." The learned State counsel argued that when the accused had admitted that the milk was unindicated, therefore, the plea taken by him at a later stage that it was cow's milk, cannot be given any weight.
(3.) WE are of the opinion that the above argument has force. Both Sumer Singh Yadav, Food Inspector (PW 1) and Dr. R.S. Garg have stated in cross-examination that the accused did not indicate at the time of sale of milk that it was cow's milk. In fact, as noticed earlier, it is also not the plea of the accused that at the time of sale of milk for analysis, he had told the Food Inspector that it was cow's milk. Ex PA is FORM VI which was singed by the accused and the detail of the sample of food purchased for analysis, by the Food Inspector is given as "U/Milk". Ex. PB is the receipt which was signed by the accused when he received the price of milk taken for sample.In this receipt also, milk is described as "U/Milk," (the letter 'U' appears to stand for un indicated milk). If the accused had disclosed at the time of taking of the sample of milk that it was cow's milk, then he would not have signed the said form and the receipt. Hence, in such circumstances it will have to he held that the accused had sold un indicated milk to the Food Inspector.;