RAJINDER KUMAR Vs. STATE & M.C.D.

JUDGEMENT

(1.) The petitioner has been sentenced to one year's rigorous imprisonment for selling adulterated cow's milk and also a fine of Rs. 1,500.00 in default of payment of the fine rigorous imprisonment for six months has been ordered. The conviction is under -Section 7 read with Sec. 16 of the Prevention of Food Adulteration Act, 1954, and the sentence has been confirmed by the Addl. Sessions Judge, Delhi, in appeal.

(2.) The prosecution case was that the sample of milk was taken from the petitioner's shop situated at Vishnu Garden. New Delhi, at 5.30 A.M. on 25th May, 1973, by a Food Inspector, Shri Kewal Krishan P.W. 2. The sample was found to be adulterated on analysis and a sample was also sent to the Central Food Laboratory, Calcutta whose report was that milk fat was only 0.7% and milk solids were 6.1%. The report of the Public Analyst, Exhibit PE showed that the milk fat was 1.9% and the milk solids were 5. 87%.

(3.) The first contention advanced on behalf of the petitioner in support of this revision directed against the conviction is that no public witness was examined at the trial. In fact, as noted by the Additional Sessions Judge, Madan Lal was a public witness associated with the lifting of the sample, but the said Madan Lal could not be produced because even after bailable warrants were issued he could not be traced out. The result is that only two witnesses who are both Food Inspectors were examined, being Shri Kewal Krishan, P.W. 2 and Shri J.P. Tyagi, P.W. 3. Sec. 10(7) of the Act requires two or more independent witnesses being associated at the time a sample is lifted. Considering the fact that the sample was taken at 5.30 A.M., and considering the nature of the sample taken, the omission to have two independent witnesses can at best amount to an irregularity unless it can be pointed out that some injustice has resulted. In the present case, I am satisfied that no injustice has resulted because the various documents are signed as well as thumb-marked by the petitioner. The defence version that this was done forcibly has not impressed the Courts below and I see no reason to disagree on this point. It is well to bear in mind that an offence under the Food Adulteration Act is really to be proved from an analysis of the sample. As the notice is in English and also signed by the petitioner in English to the effect that he was selling cow's milk and the sample had not been taken and divided into these parts as required by law, I think that there can be little doubt that the petitioner was a seller of cow's milk which was found to be hopelessly sub-standard to the extent of being almost fat free.