STATE OF KERALA Vs. A P ABDUL KHADER

JUDGEMENT

(1.) THE respondent was running a hotel and tea shop at Vythiri, On 17-1977 at about 4 P. M. the Food Inspector Kalpetta circle inspected the respondent's hotel and demanded 675 Ml of boiled milk from the respondent for the purpose of sampling. This was taken out from 10 litres of boiled milk stored in a brass vessel for the purpose of preparing tea. The sample so taken was sent for analysis and on the certificate of the Public Analyst that the sample was adulterated with 47 per cent of added water the complaint was laid before the Magistrate. According to the accused the milk purchased from him was kept for the purpose of preparing tea and therefore no sample ought to have been taken from it. The learned Magistrate found that the sample was kept in the tea shop for the purpose of manufacturing tea and not for sale as such milk, that it was primary food and as such the sample ought not to have been taken under Sub-section (2) of Section 10 of the Prevention of Food Adulteration Act Accordingly the accused was acquitted under Section 255 (1) of the Cri. P. C. The appeal is filed by the State against the Judgment of the Magistrate.

(2.) THE Judgment mentions that even according to the complainant the milk taken from the hotel of the accused was kept there for the purpose of manufacturing tea and not for sale as milk. There is no dispute on this point here also. But it is said that nevertheless since that milk has been sold to the Food Inspector such sale is of adulterated milk and as such the offence has been committed by the accused. Reliance was placed on the decision of the Supreme Court in Food Inspector V. Gopalan, 1971 Ker LT 462 : 1971 Cri LJ 1277 (SC ). That the article of food which has been purchased by the Food Inspector need not have been taken out from a larger quantity intended for sale and that the person from whom the article of food has been purchased by the Food Inspector need not be a dealer as such in that article are principles stated by the Supreme Court in that case. If there was a sale and that happens to be of adulterated material that is sufficient to constitute an offence.

(3.) WHAT was held by die learned Magistrate was that the Food Inspector should not have taken the sample at all and the taking of sample was in contravention of the statute. If that be so, no conviction could be entered on the basis of the analysis of such sample.