BALIRAM FERU PAUL Vs. THE STATE

JUDGEMENT

(1.) This is an appeal by original accused No. 2 against his conviction under section 16(l) read with s. 7(1) of the Prevention of Food Adulteration Act, 1954, and the sentence of two months' rigorous imprisonment and a fine of Rs. 750 passed against him by the Presidency Magistrate, 24th Court, Borivli, Bombay.

(2.) The facts of the case are that one Amdekar, who is a Food Inspector under the Act, visited a milk-shop at Malad in which the appellant was present, and after disclosing his identity, and his intention to purchase milk for analysis, purchased from the accused a certain quantity of milk, stirred the milk, took sample, and then divided it into three equal parts, and packed, labelled the bottles. It is the case of the prosecution that a panch named Yusuf Mahomed was present throughout this process, and that one sample bottel was sent to the Public Analyst on the same day, and the report of that Analyst was that it contained extraneous water 15.5 per cent., and fat deficiency 16.2 per cent. The present appellant, as well as the original accused No. 1 who has been absconding, were thereupon prosecuted. It may be men tioned that it is not disputed that the present appellant was the servant of the original accused No. 1 who owned the said milk-shop.

(3.) The learned advocate for the appellant has raised three contentions before me for the purpose of assailing the judgment of the trial Magistrate. They are: (1) that the Act requires that a sample should be drawn in the presence of a panch, and it, is the case of the prosecution itself that a panch named Yusuf Mahomed was actually present at the time when samples were drawn in this case, but the said parch has not been examined as a witness in the trial Court; (2) that the Rules framed under the Act require that a specimen impression of the seal with which the samples have been sealed must be sent to the Public Analyst separately, and it is the duty of the Public Analyst on receipt of a package containing a sample for analysis from the Food Inspector to compare the seal on the container and the outer cover with the specimen impression of the seal received separately, and note the condition of the seals thereon. It is the prosecution case that the sample was sent to the Public Analyst by the Food Inspector by personal delivery with a peon, but that peon has not been examined as a witness in the trial Court; and (3) that, under section 7 of the Act, it is only the owner who sells adulterer food, either himself or through a servant, who can be prosecuted, and not the servant.