NAGAR SWASTHYA ADHIKARI Vs. CHAKKHAN SINGH

JUDGEMENT

(1.) This appeal has been filed by the Nagar Swasthya Adhikari, Agra against Chakkhan Singh who has been acquitted of an offence punishable under Sec. 7/16 of the Prevention of Food Adulteration Act by a Magistrate first class, Nagar Mahapalika, Agra.

(2.) According to the prosecution case on 23-12-1971 Shyam Manohar Lal, Food Inspector, saw the respondent selling milk on the crossing of Ajit Nagar Gate at 8 a.m. The Food Inspector purchased 660 millilitre of milk on payment of 00.66 paise and obtained a receipt Ext. Ka-2. This milk was filled up in three bottles in which formalin was added. One bottle was given to the respondent and the other was sent to the public analyst whose report shows that the sample was deficient in fat content by about 16 per cent and deficient in non-fatty solids content by about 17 per cent. The respondent admitted that the sample of his milk was taken, but his defence was that the milk was not meant for sale, and that the respondent was taking it to his uncle Sher Singh for use of his ailing child. He admitted his thumb marks on Exts. Ka-2 and Ka-4. He also admitted that the milk was kept in three bottles, but according to him only four drops of formalin was added in each bottles. The trial Court relying on certain contradictions, came to the conclusion that the prosecution had failed to prove its case and, therefore, passed an order of acquittal.

(3.) The Food Inspector was examined as P.W. 1 and the other witness is Harish Chandra food Beldar. The respondent examined his uncle Sher Singh who said that the milk was being brought to him for preparing 'Kheer'. The first contradiction referred to by the trial court is that according to the Food Inspector, the respondent was found selling milk at Ajit Nagar Gate crossing while according to P.W. 2 he was coming from the side of Ajit Nagar Gate. It seems that the Magistrate did not read the statements carefully. P.W. 2 has also said that when the milk sample was taken, the milk was being actually sold. The fact that P.W. 2 saw the respondent coming from the side of Ajit Nagar Gate is thus not in any way inconsistent with the statement of P.W. I. The other contradiction referred to is that according to P.W. 1 two or three other persons saw the above proceedings, but according to P.w. 2 there was no other man. Here again the trial court has committed an error by not examining the evidence carefully. P.W. 2 also said that some persons of the public were seeing the proceedings although they did not stop at the spot. The Magistrate has then referred to another contradiction according to which P.W. 1 deposed that the accused had a Tanki and no can, while P.W. 2 said that the accused had a Tanki as well as can. It is not clear what is the real difference between a Tanki and a can. Both the witnesses consistently stated that the sample was taken from a Tanki. This contradiction, therefore, seems to have no importance. Lastly, it has been said that according to P.W. 1, the accused did n*;t say that the milk was being taken to Sher Singh while P.W. 2 said that the accused said that the milk was not meant for sale. This is in fact no contradiction at all because the two witnesses are deposing two different things on two different points. It has been observed in the judgment that "the prosecution did not prove that the accused had a licence of milk seller." I have not been able to understand the meaning of this observation probably the Magistrate wanted to say that the prosecution did not prove that the accused had no licence. Whether the accused had licence or not seems to be immaterial simply because it is not a case of selling milk without liecence, but a case of selling adulterated milk. The acquittal is, therefore, based on irrelevant considerations and a faulty appreciation of evidence. The respondent admitted that he had made his thumb marks on Exts. Ka-4 and Ka-5. The respondent said in his statement that he was taking the milk for the ailing child of his uncle, but the uncle came forward to state that the milk was being brought to him for preparation of Kheer. This material discrepancy goes to falsify the plea that the milk was not meant for sale. Exts. Ka-4 and Ka-5 prove that the sample was purchased from the respondent and was properly filled in three bottles and sealed. The report of the public analyst was that the milk was adulterated. The respondent should have, therefore, been convicted for selling adulterated milk. So far as the question of sentence is concerned, I think that the matter is about six years old and it would not be proper to send the respondent to jail after the lapse of such a long period. A sentence of fine alone would meet the ends of justice. The respondent seems to be a petty milk seller.