MANJEET SINGH Vs. STATE

JUDGEMENT

(1.) The petitioner was convicted by the Judicial Magistrate 1st Class, Delhi, for an offence under section 16 read with section 7 of the Prevention of Food Adulteration Act, 1954 (hereinafter referred to as the Act; and sentenced to undergo rigorous imprisonment for two months and also to pay a fine of Rs. l,000.00and in default of payment of fine, to undergo rigorous imprisonment for a further period of three months. In appeal, the Additional Sessions Judge, Delhi, while confirming the conviction of the petitioner and also the sentence of fine of Rs. 1,000.00, however, reduced the sentence of imprisonment to one month's rigorous imprisonment. The petitioner has filed the present revision petition against the conviction and the sentence passed against him.

(2.) The prosecution case against the petitioner is that on 22-9-1972 at about 7.30 A.M, he was selling cow milk at his shop NoJ-5/10J/H, Rajouri Garden, Delhi. A sample of this milk was taken by the Food Inspector of the M.C.D. and a portion of this milk, on being sent to the Public Analyst, was found to be adulterated inasmuch as it contained only 3% of milk fat as against the minimum of 3.5% prescribed under the Prevention of Food Adulteration Rules, 1955 thereinafter referred to as the Rules). The prosecution examined 5 witnesses in the trial Court of whom P.W.2, Shri A. James, is the Food Inspector, who purchased the sample of milk from the petitioner. He testified to the fact that the petitioner was found selling cow milk at his shop and that he purchased a sample of this milk from the petitioner. He also stated that he divided the sample into three portions, put each portion in a separate bottle and sealed all of them, gave one bottle to the petitioner and sent one of the other bottles to the Public Analyst and produced the third in Court. He also proved Ex. P/E, the report of the Public Analyst, according to which the milk fat contents amounted to 3% and milk solids not fat amounted to 9.47% and starch was absent. The opinion of the Public Analyst as given in the report was to the effect that the milk was adulterated due to 0.5 deficiency in milk fat per cent which was equivalent to 14.2 percentage deficiency in milk fat. P. Ws. 3 and 4 corroborated the evidence of P.W.2 as regards the purchase of milk from the petitioner. The petitioner in his statement under section 342 Cr. P.C. (1898), while admitting that he was selling milk at his shop on 22-9-1972 at about 7.30 A.M. and also that P.W.2 had purchased a sample of this milk from him, however, stated that he was selling only toned milk. He examined two witnesses in defence who stated that petitioner was only selling toned milk.

(3.) The learned counsel for the petitioner contends that even if the prosecution case is accepted, namely, that the petitioner was selling cow milk and not toned milk on the date of offence, it could not be said that the milk sold by the petitioner was adulterated, though the milk fat contents were less than the minimum prescribed under the Rules by 0.5% inasmuch as the percentage of non-fat solids in the milk was above the minimum prescribed under the Rules by about 1 % and the total solids contained in the milk were more than the total solids prescribed under the Rules by 0.47%. In support of this contention, the learned counsel has relied upon a decision of the Supreme Court in Malwa Cooperative Milk Union Ltd Vs. Biharilal and another, Cri. A. Nos. 235 and 236 of 1964 decided on 14-8-1967 and a Division Bench judgment of this Court in Municipal Corporation of Delhi and another Vs. Asa Ram and another, Cri A. No. 50 of 1969, decided on 11.3.1972. In the case before the Supreme Court, the milk fat contents were 6% and the non-fat solids were 7.9% in one sample and in the second sample the milk fat contents were 5.9% and the non-fat solids were 7.7% against the minimum of 5% of milk fat content and the minimum of 9% of nonfat solids contents prescribed under the Rules. The Supreme Court held that the variation was border-line and it was not clear whether the Analyst was able to isolate the fat content so successfully as not to have left room for this slight variation. In the present case, however, the milk fat contents are less than the minimum prescribed, although the non for solids are more than the minimum prescribed. Further, the Supreme Court was considering a case where the Corporation had withdrawn the prosecution against the accused and the trial Magistrate had acquitted the accused and the acquittal was confirmed by the Sessions Judge and it was only the High Court which had set aside the order of acquittal. The Supreme Court considered that under the circumstances the High Court was not justified in interfering with the acquittal In the case before the Division Bench of this Court also, the milk fat contents amounted to 6% as against the minimum of 3.5% prescribed under the Rules and non-fat solids amounted to 7.28% as against the minimum of 8.5% prescribed under the Rules. Further, a request made by the accused to examine the Public Analyst as a witness to explain how the fat contents were in excess of the minimum and the non-fat solids were below the minimum was turned down by the trial Court. Under these circumstances, the Court held that the possibility of the Public Analyst making a mistake in the analysis could not be ruled out. In the present case, no request was made by the petitioner for examining the Public Analyst to explain the excess of non-fat solids.