B.S.YADAV, J. - (1.) THE present petitioner was prosecuted under section 16(1)(a)(i) of the Prevention of Food Adulteration Act (for short the Act) in the Court of the Sub Divisional Judicial Magistrate, Pathankot. The learned Magistrate convicted and sentenced him to undergo rigorous imprisonment for nine months and to pay a fine of Rs. 1,000/-. It was also ordered that in default of payment of fine, he would further undergo rigorous imprisonment for three months. The petitioner filed an appeal which was heard by the learned Additional Sessions Judge, Gurdaspur. He did not find any merit in the appeal and dismissed the same.
(2.) THE prosecution story, as gathered from the evidence, is that on 17.11.1979, PW 2 Dr. Mohinder Singh visited the shop of the accused, situated at Madhopur in the area of Pathankot. The petitioner was found having about 20Kg. of mixed milk, in a tin, for sale. After disclosing his identity, he purchased 660 ml. of milk from the petitioner on payment of Rs. 1.50. Usual documents were prepared. The accused and Surat Singh who had been associated in the proceedings attested the documents. The purchased milk was divided into 3 separate parts and was put into 3 neat and dry bottles. 18 drops of formalise were added to each bottle. The bottles were stopped, labelled, wrapped and sealed in accordance with the procedure laid down in the Act and the Rules. The signatures of the petitioner on each bottle were obtained. Dr. Mohinder Singh prepared 3 copies of the memorandum bearing the impression of the seal used. He deposited all the bottles and the three memos in the office of the Local (Health) Authority on that very day. On the same day, PW 1 Iqbal Singh who was posted as Head Clerk in the Office of the Local (Health) Authority, sent one sample bottle and one memo containing the impression of the seal used to the Public Analyst through a special messenger, Mehnga Ram and one memorandum containing the seal impression was also sent separately. These proceedings were conducted by him in the presence Dr. Mohinder Singh. Vide report dated 11th of December, 1979, the Public Analyst found that the milk fat contents of the sample were 5.9% while milk-solids not fat 7.6%. Thus, the milk-solids not fat were 11% deficient of the minimum prescribed standard. After receipt of the report of the Public Analyst, the Food Inspector filed the complaint against the petitioner. During the pendency of the proceedings, the petitioner exercised his right under section 13(2) of the Act. One part of sample kept with the Local (Health) Authority was sent to the Central Food Laboratory From there report Ex. CX was received to the effect that the milk fat contents were 5.6% while milk solids not fat were 8.1.%. The Director of the said Laboratory opined that sample did not conform to the standard of mixed milk laid down in clause A.11.01.11 of the Food Adulteration Act (Appendix B) of the Prevention of Food Adulteration Rules, 1955, as the milk solids not fat were below the minimum prescribed standard. After the close of the prosecution evidence, the petitioner was examined under section 313 of the Code of Criminal Procedure. He pleaded that there was a board hanging in his shop on which it was mentioned that it was tea-stall and milk was not meant for sale and tea was prepared from cow's milk. In his defence, he has examined DW 1 Surat Singh who had been associated by the Food Inspector in the proceedings. This witness supported the plea of the petitioner.
(3.) THE learned counsel for the petitioner vehemently argued that clause (c) of sub-section (1) of section 11 of the Act was not complied with by the Food Inspector. At this stage, it will be better to quote section 11(1)(c) of the Act which reads as under. "11(1). When a food inspector takes a sample of food for analysis, he shall :- (a) ... ... ... (b) ... ... ... (c) (i) send one of the parts for analysis to the public analyst under intimation at the Local (Health) Authority, and (ii) send the remaining two parts to the Local (Health) Authority for the purposes of sub-section (2) of this section and sub-section (2-A) and (2-E) of section 13." The learned counsel for the petitioner argued that the said provision is mandatory and the Food Inspector was bound to send one part of the sample directly to the Public Analyst under intimation to the Local (Health) Authority and only the remaining two parts of the sample were to be sent to the said authority. He argued that in the present case, it is an admitted case of the prosecution that all the three parts of the sample, along with the three memos containing the sample of the seal used, were deposited with the Local (Health) Authority.;