PUBLIC PROSECUTOR Vs. MEENAKSHI ACHI

JUDGEMENT

(1.) THE State has preferred this appeal against the acquittal of the accused in C. C. No. 172 of 1964 on the file of the Additional First Class Magistrate II, Madurai. The Food Inspector, Madurai Municipality, filed a complaint against the respondents under Section 16 (1) (a) (i) read with Sections 2 (1) (a), (j) (h), 2 (ix) (j), 7 (1) of the Prevention of Food Adulteration Act, hereinafter called 'the Act' and Rule 28, clause A, 11, 11, in Appendix B to Rule 5 of the rules framed under the Act, for having sold ice-cream which on analysis was deficient in fat to the extent of 50 per cent and also contained coaltar dye which is not of the permitted variety. P. W. 1, Narayanan, Food Inspector, Madurai Municipality, went to the said ice-cream company at about 9-50 a. m. on 22-7-1964 and purchased 600 grams from the second accused on payment of Rs. 3 and he adopted the usual procedure of dividing the icecream into three equal parts, retaining one part with himself giving one part to the second accused and sending the third to the Public Analyst for analysis. The report of the Public Analyst, Exhibit P-7, shows that; the sample sent to him is deficient in fat : to the extent of 50 per cent and it contains coaltar dye which is not in the list of dyes permitted to be used upon food. During the course of the trial, the sample given by the accused was sent to the Director of Central Food Laboratory and his report, Exhibit C-2 also is to the effect that the ice-cream is adulterated as the total fat content was only 2. 8 per cent and the coal-tar dye (rose in shade) which is not permitted, was present. The learned Additional First Class Magistrate acquitted both the accused on the ground that the first accused is the "technical owner' and that the business was really managed by her husband and that the case against the second accused has not been satisfactorily proved as according to him he is only a clerk in the ice-cream company and it is not definitely known who exactly sold the icecream to P. W. 1. I may at once state that the reasons given by the learned Additional First Class Magistrate are wrong and this evidently has led the State to file this appeal. The learned Additional First Class Magistrate could have given valid reasons for acquitting the accused.

(2.) THE fact that the first accused does not actually manage the business is irrelevant, so long as she is the owner of the company. The fact that she left the management of the company in the hands of her husband could be taken into consideration in awarding the sentence. So far as the second accused is concerned, it is true that he has adduced the evidence of D. W. 1, the husband of the first accused, and D. W. 1, an employee in the company, in support of his case that he has nothing to do with the sale of the ice-cream and that he is only an employee in the company. But having regard to the receipt, Exhibit P1 signed by the second accused, notice Exhibit P-2 served on the second accused, the acknowledgment Exhibit P-23 signed by the second accused for receipt of the sample and the statement Exhibit P4 given by the second accused admitting the fact that he sold the ice-cream the evidence of P. W. I ought to have been accepted by the Additional First Class Magistrate. In fact, the learned Magistrate has not referred to any of these documents. His finding that the second accused did not sell the ice-cream is opposed to the oral and documentary evidence in this case. It is not possible to accept the interested testimony given by D. W. 1, the husband and D. W. 2, the employee of the first accused, in support of the belated defence of the second accused that he did not sell the ice-cream. I find that the second accused did sell the ice-cream to P. W. 1.

(3.) THE accused has let in the evidence of D. W. 3 to prove that the skimmed milk had been purchased from him to make the ice-cream. Skimmed milk cannot be expected to contain milk fat, though it would contain milk solids. In Crl. As. Nos. 212, 291, 729 and 277 of 1965, Public Prosecutor v. Sethuvel Chettiar reported in 1968 Mad LJ (Cri) 501, preferred by the State against the acquittal of the accused in those cases, Krishnaswamy Reddy J. has found that the ice-cream made of skimmed milk need not contain milk fat, but it should contain not less than 8. 5 per cent of milk solids and dismissed the State appeals. It is unnecessary to repeat the reasons given in that judgment, as I entirely concur with the same. The prosecution has not let in any evidence to show that the accused purported to sell ice-cream made of pure and not skimmed milk. Hence, the accused could not be convicted for having sold ice-cream which did not contain milk fat, as it is the case of the accused that ice-cream was made of skimmed milk.