M.C.D Vs. MEMBER SINGH

JUDGEMENT

(1.) The respondent, Member Singh, who was carrying milk for sale, was intercepted on June 6, 1969 at about 4 20 P.M. by Shri V.P. Anand, Food Inspector of the Municipal Corporation of Delhi near Queens Garden, opposite Railway Station, Delhi. The Pond Inspector after disclosing his identity to Member Singh purchased from him 660 ml. of cow's milk for purposes of chemical analysis and for this purchase paid 94 paise as price of the milk sold by Member Singh to the Food Inspector The said Food Inspector also gave notice to Member Singh as postulated by Prevention of Food Adulteration Act, 1954 and after dividing the quantity purchased into three parts put it in three dry bottles and sealed the same. Formalin was added in each bottle. An inventory was prepared on the spot which was signed and thumb impressed by Member Singh and explained to him. The inventory was also signed by the two witnesses in whose presence the sample of milk was taken. One sample contained in a sealed bottle was given to Member Singh. One sample was sent to Public Analyst the next day and one sample was kept. The Public Analyst' carried out the chemical analysis on June 9, 1969. He found that the sample analysed by him contained fat 0.5 per cent and non-fatty solids 7.06 per cent." According to the opinion of the Public Analyst the sample contained adulterated milk due to 1.44 deficiency in non-fatty solids percent which is equivalent to 16.9 percentage deficiency in non-fatty solids due to addition of water. Member Singh was prosecuted. The prosecution version stood fully established. He was, however, acquitted by Shri C.D. Sharma, Judicial Magistrate 1st Class, Delhi. The basis on which the respondent was acquitted was a judgment of the Supreme Court in Criminal Appeal Nos. 235 and 236 if 1964, The Malwa Cooperative Milk Union Ltd. Vs. Behari Lal etc. This case is reported in 1973 Prevention of Food Adulteration Cases at page 375. The Magistrate held, agreeing with the submission of the defence counsel, that inasmuch as the total solids found far exceeded the total solids prescribed for cow's milk and the fat contents found were much in excess of the prescribed minimum, the sample showing deficiency in respect of non-fatty solids could possibly be on account of the Public Analyst not being able to isolate the fat contents very successfully and leaving scope for slight variation more or less on the border line as far as non-fatty solids were concerned.

(2.) First of all we do not agree with the findings of the trial court that the deficiency was so marginal that one could conjecture about the possibility of error in calculation or analysis. Secondly, the trial court erred in relying on the case of Malwa Co-operative Milk Union Ltd. The observations of Hidayatullah, J. (as he then was) were read out of context, as has been explained by the Supreme Court itself in Municipal Committee, Amritsar Vs. Hazara Singh, 1975 (1) Prevention of Food Adulteration Cases 271, The defence of marginal error raised by accused persons in such cases is really on the basis of distorting the observations of Hidayatullal, J. and tearing those observations out of context. The observations in Malwa Co-operative Milk Union Ltd. have also been explained by a Full Bench of this Court in Municipal Corporation of Delhi Vs. Bishan Sarup, 1972 Prevention of Food Adulteration Cases 273. It has been made clear in that decision in what context Hidayatullah, J. made observations about marginal error which a Public Analyst could make. The same view has been reaffirmed by this Court in Criminal Appeal No. 109 of 1972, Municipal Corporation of Delhi Vs. Nestle Milk Products decided on Feb. 21, 1975 reported in 1975 (1) F.A.C. 242. In the last noted case the deficiency in milk solids was found at 1.30 per cent. It was held that the dictum in the Malwa Co-operative Milk Union Lid s' case was not attracted. In the present case the deficiency is 1.44 percent. In our opinion when the standards have been laid down in the rules, it is difficult to deviate from them, in any case, to any great degree. In this view of the matter we are of the opinion that the acquittal of the accused was not justified. We, accordingly, set aside the order of acquittal and convict the respondent under Sec. 7/16 of the Prevention of Food Adulteration Act, 1954.

(3.) Coming now to the question of sentence, the minimum prescribed is six months imprisonment and a fine of Rs. 1000.00. Learned counsel for the respondent urges that the offence is alleged to have been committed more than 7 years ago, the respondent was acquitted and has been a free man since March, 1970. Therefore, to send him back in prison in these circumstances would not be in the interest of justice or in keeping with the latest trends in criminology. He further submits that according to the unrebutted evidence the age of the respondent at the time of the commission of the offence was 20 years and so, he is entitled to the benefit of the "Probation of Offenders Act. We do not agree. However, keeping in view the fact that the respondent stood acquitted in March, 1970, we impose a sentence of three months imprisonment and a fine of Rs. 1000.00. In default of payment of fine, he would undergo further imprisonment of one month.