BABU LAL HARGOVINDAS Vs. STATE OF GUJARAT

JUDGEMENT

(1.) The Appellant Babu Lal Hargovindas carries on business of selling milk in the City of Ahmedabad. On 2-12-1965 at about 8 a. m the Food Inspector Mangulal C. Mehta visited the Appellant's shop, disclosed his identity and intimated to him that he was purchasing the milk for analysis. Thereafter 700 ML. milk which was being sold as cow's milk was purchased from him. It was divided into 3 parts and poured into three bottles in each of which he added sixteen drops of formalin as preservative. The bottles were then corked, sealed and wrapped and signatures of the Panch one Adambhai Rasulbhai were taken on the seals and wrappers. Of the three bottles that were then sealed one was given to the Appellant, one was kept by the Food Inspector to be produced in the Court as inquired by the provision of Food Adulteration Act 1954. Hereinafter referred to as 'the Act') and the third one was handed over that very day at 11.30 a.m. to the Chemist Laxmansingh Vaghela who being authorised by the Public Analyst Dr. Vyas analysed it. The analysis of the sample by Vaghela revealed that the milk was adulterated as it continued total nonfat solids of 7.4% instead of 8.5 per cent which was the minimum prescribed. After the receipt of the report of the Public Analyst the Food Inspector filed a complaint on 6-4-1966 with the written consent of the Medical Officer of Health of the Ahmedabad Municipal Corporation. After examining the Food Inspector Mehta, the Chemist Vaghela and the Panch Adambhai Rasulbhai the City Magistrate, 6th Court, Ahmedabad convicted the Appellant under Section 16 (1) (a) (i) read with Section 7 of the Act for selling adulterated milk and sentenced him to undergo rigorous imprisonment for one month and a fine of Rs. 1,000/-, in default to undergo a further period of 3 months rigorous imprisonment Against this conviction and sentence the Appellant appealed to the High Court of Gujarat which confirmed the conviction. This Appeal against that Judgment is by Certificate under Article 134 (1) (c) of the Constitution of India.

(2.) It is contended before us Firstly that requirements of Section 10 (7) of the Act have not been complied with. Under this provision when the Food Inspector takes any action as specified in sub-sections (1) (a) , (2) , (4) or (6) he shall call one or more persons to be present at the time such action is taken and take his or their signatures. The Panch witness however did not support the case of the complainant that he was either present at the time when the sample was obtained from the Appellant or that his signatures were taken when the bottles were said to have been sealed. In these circumstances. it is submitted, the conviction cannot be sustained Secondly the Appellant was not afforded an opportunity to send the sample of the milk left with him to the Director of Central Food Laboratory for a certificate inasmuch as the complaint itself was lodged after a lapse of over 4 months from the date of taking the samples. In these circumstances the milk could not have been preserved for the Appellant to have taken the opportunity afforded to him by sub-section (2) of Section 13 by sending it to the Director, Central Food Laboratory for a certificate. Thirdly the Food Inspector who filed this complaint was not competent to file it because the Medical Officer of Health who gave written consent to file it was not validly authorised as required under Section 20 (1) of the Act inasmuch as under the relevant provisions of the Bombay Provincial Municipal Corporation Act LIX of 1949 (hereinafter referred to as the 'Corporation Act') as applied to the State of Gujarat it was the Municipal Commissioner and not the Municipal Corporation that should have authorised the giving of written consent to prosecuted Fourthly even if the Medical Officer of Health can be said to be validly authorised by resolution of the Municipal Corporation dated 17-10-55 the complaint is not in accordance with that resolution since the resolution authorised the filing of to complaint in the name of the Municipal Corporation but the complaint filed does not disclose that it is filed on behalf of the Corporation Lastly Rule 7 (2) of the Prevention of Food Adulteration Rules (hereinafter called the 'Rules) which permits the Public Analyst to cause the sample to be analysed is ultra vires because it is beyond the scope of Section 23 (e) of the Adulteration Act. Most of these contentions were urged before the learned Single Judge of the Gujarat High Court who in a lengthy Judgment held them to be untenable. In our view also the submissions of the learned Advocate for the Appellant are without force and must be rejected.

(3.) It may be observed that Section 10 (7) of the Act originally required that the Food Inspector, when be taken action either under the provisions of suctions (1) . (2) . (4) or (6) , to call as far as possible not less than two persons to be present at the time when such action is taken and take their signature but that provision was amended by Act 49 of 1964 and instead it was provided that the Food Inspector shall call one or more persons at the time when such action taken and take his or their signstures. It appears that the person who witnessed the taking and sealing of the sample did not support the Food Inspector's version that the signatures of the Panch witness were taken on the receipt Ex. 5 and on the label and wrappers of the bottles at the time when the sample were obtained.