MATHURA DASS Vs. STATE

JUDGEMENT

(1.) This revision petition has been preferred against the order of Shri G.R. Luthra, Additional Sessions Judge, Delhi, dated Aug. 30, 1974 whereby he maintained the order of Shri S. N. Kapur, Metropolitan Magistrate dated June 27, 1974. Under the last mentioned order, the petitioner Mathura Dass sentenced to undergo rigorous imprisonment for 9 months and to pay a fine of Rs. 1500.00and in default of payment to undergo further rigorous imprisonment for three months for selling skimmed milk misbranded as cow's milk. He was also sentenced to suffer rigorous imprisonment for six months with a fine of Rs. 1000.00 and in default of payment to suffer further rigorous imprisonment for two months for selling milk without a licence. The learned Additional Sessions Judge upheld the conviction of the petitioner on the two charges and maintained the sentences to except for the modification that the sentence of rigorous imprisonment for selling misbranded milk was reduced from 9 months to 6 months.

(2.) Mathura Dass worked in premises Nos. 836, New Rajinder Nagar, New Delhi licensed for trade in Desi Ghee. Shri M. L. Kakra and Shri J. P. Tyagi, Food Inspectors of Delhi Municipal Corporation, went to this shop on 19th July, 1973 at 9.25 A.M and the first mentioned official purchased from him a sample of milk measuring 660 ML. for Re. 1/-. The sample came out of a can containing about 20 litres of milk and bearing a label as to its being cows's milk. The sample was got examined by the Public Analyst and the report received showed that it had 0.1 per cent milk fat and 9.05 per cent milk solids not fat and that it was skimmed milk misbranded as cows milk. Guided by this report the Municipal Corporation set afoot prosecution of the vendor, Mathura Dass, under section 16 read with section 7 of the Prevention of Food Adulteration Act, 1954 (hereinafter called 'the Act'). The accused was found guilty and sentenced in the manner stated above.

(3.) The accused noted down even at the time the sample of milk was purchased on the receipt, EX. PA, as well as the memo, EX PC, that what had been sold to the Food Inspector was skimmed milk and it is urged on the basis of this protest lodged at the earliest opportunity that the accused has indulged in no misbranding. But it is undisputed that the milk bought by the Food Inspector was contained in a can and that can represented it to be cows' milk. The fact that Mathura Dass told the Food Inspector when the latter expressed his intention to purchase the milk that it was skimmed milk could not constitute a valid defence. If that were permissible a shopkeeper may be cheating all the genuine customers by selling them skimmed milk under the garb of cow's milk and come out with the truth if and when somebody came for a checking contemplated by the law. The fact remains that the can spoke of the milk contained in it being cow's milk whereas in fact it was skimmed milk and was declared by the public Analyst and acknowledged by the accused himself as such.