(1) This appeal is directed against the order of the Judicial First Class Magistrate, Kurnool dated 20th September 1960 in C. C. No. 73 of 1960, acquitting the respondent herein of a charge under Section 7 and 16(1) read with Section 2(1)(a) and rule 44 (B) of the Prevention of Food Adulteration Act (Act 37 of 1954), hereinafter called the Act.
(2) The respondent was charge-sheeted by the Municipal Health Officer, Kurnool, under the provisions of the Act alleging that on 15-10-1959 at about 6-30 a.m. he was found in possession of adultered cow milk, which he was carrying for the purpose of sale. It is stated that three-fourth seer of milk was taken from the respondent with the usual formalities and sent to the Public Analyst on 20-10-1959. The Public Analyst gave the opinion (Ex. P-4) that the milk was adultered containing 11% of added water. The opinion was given on 14th May 1960 and subsequently a charge-sheet was laid against the respon1960. The respondent pleaded not guilty.
(3) The learned Magistrate examined the Sanitary Inspector and one more witness and found the accused not guilty mainly on the ground that there was inordinate delay in the analysis of the sample sent and also in filing of the charge-sheet. It is against this order that the appeal has been filed.
(4) The facts beyond controversy are that on 15-10-1959 a sample of cow milk was purchased from the respondent and according to the opinion of the Public Analyst it was found to be adultered within the meaning of the word used in the Act. The only contention put forth was that as the opinion was received on 14-5-1960 there was inordinate delay in the conduct of the analysis and, therefore, no weight could be attached to the opinion of the Public Analyst. The next contention has been that according to the rules eight ounces of milk had to be sent to the Public Analyst whereas the quantity of milk that seems to have been sent is only four ounces. Lastly it is urged that the necessary quantity of preservative has not been added. The learned Magistrate with reference to these technical flaws relying on the decision in Dattappa v. Secy. Buldana Municipality, AIR 1951 Nag 191, has come to the conclusion that the prosecution is untenable.
(5) It is to be noted with reference to the last two objections that the Public Analyst has not complained in his report, Ex. P-4 that sufficient quantity of the sample was not supplied nor that it did not contain the required amount of preservatives. Secondly there is nothing on record to show that the analysis was completed on 14th May 1960 i.e., the date on which the report was compiled. No doubt if as is apparent from Ex. P-4, the report was completed on the date on which the analysis has taken place, it could be urged that there was inordinate delay, which might have resulted in the deterioration of the sample and consequently the result was not to be relied upon. But, as stated above, there is nothing to warrant the conclusion lysis was conducted on 14th May 1960, the date on which the report was prepared. The rules do not contain any direction to the Public Analyst to analyse a sample with a particular period, but the presumption is that in view of the fact that the samples that are sent to him are of a perishable nature, the analysis would be normally conducted as expeditiously as possible. The idea of adding preservatives is not to prolong the life of the sample indefinitely but to keep it in its original state, for a limited period. It would therefore, be presumed that the analysis had been conducted soon after the sample was received. The delay in compiling the report does not necessarily mean that the analysis was also delayed. The learned Magistrate, I think, was not justified in concluding that the analysis of the sample was conducted on the date on which the report was drafted. If he had any doubt in regard to that aspect he could have examined the Public Analyst or got a clarification from him. So that, there is not foundation for the presumption that the analysis was conducted on 14-5-1960 with a delay of seven months as complained.
(6) In regard to the second point viz., that insufficient quantity of milk was supplied analysis, I think, it is not open to the respondent to make a complaint. The object of supplying a reasonable quantity is to enable the Analyst to conduct more than one test, if necessary. If the quantity supplied is insufficient it is for him to complain that on account of the insufficiency of the quantity he could not analyse the sample and arrive at a conclusion.
(7) Moreover on a reference to the record it appears that in the instant case 24 ounces of milk was seized from the respondent and this was divided into three equal parts. Presumably, therefore, 8 ounces of milk must have been supplied to the Public Analyst. This is substantiated by the fact that the sample in the court contained about 8 ounces of milk. The complaint of the respondent therefore, that insufficient quantity of milk waoes not seem to be well founded.
(8) The third point that requires consideration in this case is whether the prescribed amount of preservatives has been added to the samples. The Sanitary Inspector has stated that he put four drops of preservative to the quantity sent to the Public Analyst. The other witness examined has stated that only two drops were put. It is to be noted that this information has been furnished not by reference to any document but from memory. Memorandum under Form No. 7 has not been brought on record to show the exact quantity of the preservative added.
(9) The question is that if only four drops of preservatives were added to the sample as against the direction of putting one drop for each ounce (subsequently amended to two drops) it had adversely affected the opinion of the Public Analyst. The fact of adding insufficient quantity of preservative has not been considered in the case cited above nor there is any data on record to hold that merely because an insufficient quantity of preservative was added, the opinion of the Public Analyst on that account was liable to be ignored. Here again, I am inclined to hold that the complaint should have emanated from the Public Analyst viz. that as insufficient quantity of the preservative had been added the sample had deteriorated or that decomposition had set in with the result that the analysis could not proceed on safe footing. There no such complaint by the Public Analyst nor the respondent has chosen to examine the Public Analyst from this point of view. I, therefore, think that even conceding that smaller quantity of preservative was added to the sample sent it could not be concluded that the opinion of the Public Analyst could be discarded on that account.
(10) It is on record and not controverted that the sample of the milk taken from the respondent was supplied to him. If it was his case that on account of insufficiency of preservative the sample had deteriorated, he could have availed of the provisions under section 13 of tI41ent the sample to the Central Food Laboratory for an opinion. Admittedly, he has not followed this course. In the absence of it, there is no justifiable reason to arrive at the finding that merely because of the insufficiency of the preservative the sample had undergone a further decomposition. The learned Magistrate, therefore, in my opinion was not justified in acquitting the accused on this technical ground.
(11) In the last para of his judgment the learned Magistrate has referred to some discrepancies in the statements of the witnesses as being sufficient to warrant an acquittal. Both the witnesses examined have deposed that the sample of the milk was taken from the respondent while he was proceeding on his usual round. There is no reason to disbelieve their testimony. I, therefore, hold that an offence under sections 7 and 16(1) read with section 2(1)(a) and Rule 44(B) of the Prevention of Food Adulteration Act has been made out against the respondent and the is liable to punishment. P. W. I. has stated that the respondent had a previous conviction in C. C. No. 114 of 1959 and was sentenced to a fine of Rs. 75. This fact had been conceded by the respondent when examined by the Court (vide Question No. 3-page 5 of the typed papers). The respondent, therefore, is liable to enhanced punishment prescribed in section 16, sub-clause (g) (ii) of the Act. The only mitigating circumstances seems to be that there has been inordinate delay in filing the charge-sheet. Taking that into consideration, I hold the respondent guilty as above and sentence him to a term of three months' rigorous imprisonment and a fine of Rs. 50 (Rupees fifty only). In default of payment of fine, he will further suffer simple imprisonment for one month.
(12) This appeal is allowed.
(13) Appeal allowed.