BADLOO RAM Vs. STATE

JUDGEMENT

(1.) On May 8, 1975, at 4.45 A.M., Food Inspector, P.N. Ralhan, purchased 660 ml. Itrs. of milk from the accused-petitioner in Dev Nagar Karol Bagh, New Delhi, while he was carrying 35 litres of cow's milk for sale in three cans on a bicycle. The Food Inspector then, divided it into three parts, out of which one was sent to the Public Analyst. He also found that the accused was selling milk without a licence. The Public Analyst reported on May 12, 1975, that the sample of cow's milk contained .2% milk fat and 9.1% milk solids not fat and, therefore, he was of the opinion that it conformed to the standard prescribed for skimmed milk and as such was misbranded as cow's milk. The learned Magistrate convicted him under section 16 of the Prevention of Food Adulteration Act, 1954, (hereinafter, the Act), and sentenced him, (i) for sale of a misbranded article, to undergo rigorous imprisonment for six months and to pay a fine of Rs. 1,000.00 in default whereof to undergo rigorous imprisonment for three months, and (ii) for selling milk without a licence, to pay a fine of Rs. 500.00. In default of payment whereof to suffer rigorous imprisonment for three months. The orders of the Magistrate are dated July 20, 1976, and Nov. 15, 1976. On appeal, the learned Additional Sessions Judge, Delhi, upheld the conviction for selling misbranded milk and maintained the conviction and sentence on that count but set aside the sentence in respect of sale without a licence. The order of the learned Additional Sessions Judge is dated Feb. 18, 1978. Hence, this revision.

(2.) The statements of the Food Inspector, P.N. Ralhan (P.W. 1), and other two witnesses. S.K. Bhardwaj (P.W. 3), and P.S. Awasthi (P.W. 4), are that the milk, which the petitioner was carrying, was cow's milk. The documents of sampling and sale which bore his thumb impressions described it as cow's milk. The Food Inspector did depose that the can also bore the writing purporting to show that it contained cow's milk, but other witnesses and the documents prepared do not support this fact. The first question put to the accused as whether he was carrying cow's milk for sale and his answer was that it was correct. But, in reply to yet another question he said that he was innocent; the milk was skimmed milk.

(3.) It was urged on his behalf that the accused was carrying skimmed milk. Therefore, he had committed no offence and deserved to be acquitted. It was also pointed out that the accused could not engage a counsel and no legal aid was provided to him. The prosecution witnesses were not subjected to cross-examination. Therefore, he was deprived of an effective defence. The case be sent back for retrial. If it is held that what he purported to sell was cow's milk without having been skimmed, then too it is not a case of misbranding, but of adulteration within the meaning of sub-clause (1) of clause (i) of see. 2 of the Act, and in that event, his sentence called for reduction under the proviso to clause (a) of Sub-sec. (1) of Sec. 16 of the Act as it stood before amendment. He has been in jail for about 20 days after his conviction. Prayer for grant of probation was also made. The view that prevailed in the lower courts was challenged as erroneous.