1. This is an appeal against the acquittal of the accused in CC. 209 of 1965 on the file of the Munsif-Magistrate, Visakhapatnam, of an offence of the sale of adulterated curd to the Food Inspector, punishable under Section 16(1) of the Prevention of Food Adulteration Act, 1954 (Central Act 37 of 1954), hereinafter to be referred to as the Act.
2. The facts of the case were that the accused was a regular curd vendor and known as such to the Food Inspector, Visakhapatnam Municipality, P. W. 1. On 23-6-1965 at 10-15 a.m. he (P. W. 1) saw the accused at Door No. 13-9-18 in Dandu Bazaar Road, carrying buffalo curd in two aluminium vessels. He stopped him and tested the said curd and suspected it to be adulterated. He called the residents of the house, P. W. 2 and another, to be mediators and purchased 3/4 seer of the said curd paying the accused 19 paise and obtained Ex. P. 4 receipt. He then served on the accused Form 6 notice, duplicate copy of which is Ex. P. 5. Then he put the curd purchased in three clean dry bottles, sealed and labelled them after adding 16 drops of Formalin to each of the bottles. He gave one such bottle to the accused. He then seized the Aluminium vessels with the remaining curd under the mediators' report, Ex. P. 6. He forwarded one of the sample bottles to the Public Analyst, He received the report, Ex. P. 8, that the sample contained 80% of extraneous water and was therefore adulterated. He then initiated proceedings against the accused.
3. At the trial, P. Ws. 1 and 2 deposed to the facts of the case and the documents. Exs. P4, P5, P6 and P7. The accused, when questioned under Section 342, Cri. P. C. denied the sale of curd. He denied that he received the sample bottle. He said that he did not know anything about the Public Analyst's report. He pleaded not guilty to the offence of selling adulterated curd.
4. The Magistrate, who tried the accused, believed the prosecution case and disbelieved the accused's plea in defence. But he rejected the report of the Public Analyst in the view that the Public Analyst was not examined. He held that the prosecution did not prove the guilt of the accused beyond doubt.
5. The learned Public Prosecutor has contended that the Magistrate has disregarded the special rule of evidence enacted under Section 13(5) of the Act, and that the view of the Magistrate is also contrary to what was expressed in Mangaldas Raghavji v. State of Maharashtra : 1966CriLJ106 , that the prosecution would not fail solely on the ground that the Public Analyst had not been called in the case.
6. There can be no doubt that having accepted the prosecution case, the Magistrate disregarded the specific rule of evidence enacted under Section 13(5) of the Act and deemed it necessary that the Public Analyst be examined in this case. These views are clearly unsupportable. On going through the evidence, I have no doubt that the prosecution has established that the accused sold adulterated curd.
7. Ex. P 8 is the report of the Analyst which also states that the sample was preserved with Formalin and that no change had taken place in the article since purchase that would interfere with the analysis. It is wrong therefore to presume that the article of food was not fit for analysis when the Public Analyst conducted the analysis and sent the report.
8. The accused's denial of sale of curd cannot be accepted as true as against the credible evidence to the contrary.
9. The acquittal of the accused is therefore set aside and the accused is convicted under Section 16(1) and Section 7 read with Section 2(1)(i) of the Prevention of Food Adulteration Act, 1954 and sentenced to a fine of Rs. 500/- or in default to rigorous imprisonment for three months. Time for payment of fine one month.