ASHIQ Vs. STATE

JUDGEMENT

(1.) THE applicant Ashiq has been convicted under section 7/16, Prevention of Food Adulteration Act and sentenced to six month's RI and a fine of Rs. 500/- in default S. I. for two months.

(2.) THE prosecution case was that on 26-5-1977 at about 10 A. M. the applicant was carrying some cans of milk for sale. A sample of milk was obtained by the Pood Inspector and on alaysis by the Public Analyst it was found containing only 3.8% fatty solids as against the prescribed 4.5% for buffalo milk. THE applicant was accordingly prosecuted. THE defence was a denial and the applicant pleaded that no sample was taken from him and it was false case. Both the courts below have disbelieved the defence and accepted the prosecution evidence regarding taking of sample.

(3.) TO revert to the question in hand, when can it be said in a prosecution under the Prevention of Food Adulteration Act that "Milk is offered for sale without any indication of the class ?." The Rules do not prescribe any manner for indication of the class. In Part VII of the Rules there are certain rules about labels on articles of food but these would be applicable only to packaged foods and not to food article sold loose. In the absence of any specific provision of law it will not be proper to imply a legal duty on the vendors selling articles of food loose to place any labels on the containers in which the articles are kept or carried. This would also not accord with the prevailing trade practice in which such labels are seldom found even in shops. Milk is usually carried by vendors in cans and buckets and the class of milk therein may change from day to day. Therefore, any requirement of labelling the can with the class of milk would be a major duty which could not be imposed except under an express and specific legal mandate. When there is no label on the container the ordinary method of deciding the class of milk being offered for sale may be any one of these (1) The vendor may himself give out the class voluntarily or in answer to query of some customer including the food inspector, (2) There may be an implied representation by the vendor such as when the customer wants a particular class and the vendor by his conduct affirms that the same class was being sold and (3) the customer may know from the appearance or otherwise believe what was the class of milk being sold and buy it in that belief without inquiring as to the class. In practice the third alternative will be rare and generally whether the vendor has buffalo milk or some other kind of milk in his containers would come to be known by either the vendor volunteering this information or the customers eliciting it by an appropriate question. It would follow that until there is some evidence of this kind it would not be possible to say what class of milk (buffalo, cow or some other kind) was being offered for sale. If the customer buys without caring to ascertain or under some belief of his own it will not be a case where then; is no indication of class. Before failure to indicate there should be an occasion to indicate. There is no such occasion when the purchaser buys without caring to ascertain the class or asking for a particular class because there is no legal (obligation on the vendor to disclose the class suo-moto when any one wants to buy the article. It will, therefore, not be possible to say that the class of milk is not indicated in cases where the vendor says nothing and there is no evidence or any attempt to elicit the same. Only cases where notwithstanding such attempt the vendor chooses not to disclose the class of milk or is unable to disclose it will be correctly the class offered for sale without indication of the class. This view is fortified by Rule 9 (f) which imposes a duty on the Food Inspector "to make such enquiries and inspections as may be necessary to detect the manufacture,, storage or sale of articles of food in contravention of the Act or Rules framed thereunder." The Food Inspector has, therefore, to find out whether the milk is being offered for sale as buffalo milk, cow milk or of any other class of milk or merely as milk without any indication of the class.