Sharfuddin Ahmed, J.
1. The respondent was prosecuted for contravening the provisions of Section 16 (1) and (7) read with Section 2(1)(a) and (1) of the Prevention of Food Adulteration Act and Rule 44 of the rules framed under the Act. The allegation against him was that on 26-6-65 at about 9 a.m. be was found in possession of a mixture of cow and buffalo milk intended for sale near Power pet, Railway Station, Eluru, P. W. 1, the Food Inspector purchased 3/4 seer of milk for 47 P. and issued a receipt, Ex. P.1. He also served a notice on the accused, copy marked Ex. P-2. Thereafter the milk was divided into three empty clean bottles and after adding 16 drops of formalin, one of the simples was sent for analysis to the Public Analyst. Another bottle was given to the accused and the third sent to the Court. The Public Analyst reported that the sample sent to him contained 53 per cent of extraneous water as calculated from Solids-not. fat and was thereforeadulterated. On that basis a report was laid against the respondent for contravening the provisions of Prevention of Food Adulteration Act.
2. The accused pleaded that the milk was not intended for sale. He was taking it to a Veterinary Compounder. The prosecution examined three witnesses to substantiate the charge against the accused. The learned Magistrate, however, acquitted the accused with reference to the discrepancy in the statements Of P. Ws. 1 and 2 on one side and P. W. 3 on the other. He found that the milk was not intended for sale. In that view, he gave him the benefit of doubt.
3. P. W- 1 is the food Inspector and P. W. 2 is the Sanitary maistry while P. W. 3. is supposed to be an independent witness. P. Ws. 1 and 2 deposed that the accused was carrying the milk on a cycle contained in two vessels near the Powerpet Railway Station. He was stopped by P. W. 1 near 2 Town Police Station and when questioned the accused told him that the milk was for sale. Thereupon, he purchased 3/4 seer of milk. The accused was having 1/4 seer measure with him. Be paid the price 47 P under a receipt and then divided the milk into three bottles adding 16 drops of formalin to each bottle and one such sample was sent to the Public Analyst. The Maistry also has corroborated his statement. P. W. 3 however while stating that the accused was carrying milk has revealed in the crocs-examination that the accused had stated that the milk that he was carrying was not for sale and that he was taking it for supplying ill to a veterinary compounder No doubt if the milk was not intended for Bale and was being taken by the accused for the specific purpose of supplying to a particular individual, the purchase by the Food Inspector would not be consistent with the provisions of the Act. It has been held by the Supreme Court and even laid down by the Act itself that the sale to the Food Inspector is a, sale within the meaning of theAct. Therefore, unless it is pleaded that the Food Inspector had forcibly taken the sample under the colour of his office the mere assertion that the milk was not for sale is not acceptable. In the instant case, it has come on record that the milk was purchased and a sum of 47 P. was given to the accused under a receipt. Therefore, even though the accused might have pleaded that it was not meant for sale, the purchase by the Food Inspector would amount to sale. I think, the learned Magistrate was not justified in giving the benefit of doubt to the accused on that ground.
4. However, there are some other noticeable irregularities in this case. The first one is that the offence was committed on 26-6-65 and the sample was tested as evident from the report of the Public Analyst on 23rd July 1965. In spite of that the complaint was laid on 13.11-65, i.e., after a lapse of nearly four month?. The delay has not been explained with the result that if the accused wanted to challenge the finding of the Public Analyst he would not have been in a position to do so due to lapse of time. Farther as has been observed in some other cases, the test conducted by the Public Analyst seems to be not N. F. S. test, Particularly, on the ground of delay I am not inclined to interfere with the order of the learned Magistrate. The appeal is accordingly dismissed.