BHAGWAN DAS JAIN Vs. STATE OF PUNJAB

JUDGEMENT

(1.) The appellant was prosecuted on a complaint of the Health inspector, Dr Bajaj, that he was selling milk ice containing 4.16% fat. Item A. 11. 02. 09 of Appendix 'b' read with Rule 5 of the Prevention of food Adulteration Rules, 1955 (the 'rules') stipulates that milk ice containing more than 2. 0% milk fat would be an adulterated article within the meaning of Section 2 (m) of the Prevention of Food Adulteration Act, 1954 (the 'act').

(2.) There is no dispute that the sample of the article sold by the appellant contained 4.16% fat. What is seriously disputed is the nature of the article that was being sold by the appellant when the complainant health Inspector took the sample of the same. According to the appellant, he was selling "milk ice cream" and not "milk ice". Admittedly, Appendix 'b' in question does not mention any article called milk ice cream. The articles nearest in description mentioned there are ice cream or milk ice. For ice cream, under Item A. 1 1. 02. 09 of the Appendix, not less that 10% of fat is prescribed whereas for milk ice, as stated above, what is prescribed is not more than 2. 0% fat.

(3.) Although the complaint lodged made an allegation that the appellant was selling milk ice, in his substantive evidence in the trial court, the Health Inspector stated that "after disclosing his identity and serving notice on the appellant, he purchased nine cups of golden milk ice cream weighing 90 grams each for Rupees nine only". That was also the defence of the appellant in his statement under Section 313 of Criminal Procedure Code, viz. , that he was selling "milk ice cream" and not "milk ice". The trial court on the basis of this evidence, in para 11 of its judgment stated as follows: