A.D.V. Reddy, J.
1. This Appeal is by the State against the acquittal of the accused in C. C. No. 527 of 1969 on the file of the II Additional Judicial 1st Class Magistrate, Kakinada. on a charge under Section 16(a) and Section 7 read with Section 2(1)(a)(i) of the Prevention of Food Adulteration Act. 1964 (hereinafter referred to as the Act).
2. The accused is a milk hawker in Kakinada. On 7-3-1969 at about 11 A. M., P. W. 1 the Food Inspector of Kakinada Municipality found him carrying a tin containing 12 ltrs. of mixture of cow and buffalo milk going on a cycle near hotel Indra Bhavan on the main road at Kakinada. He stopped him and purchased from him one ltr. of milk paying Re. l/- towards its cost. Thereafter he divided the milk into three portions, put them in three clean bottles, added formlin in each of the bottles, sealed them and gave one of them to the accused and sent one to the Public Analyst and his report showed that the milk contained 5.5 per cent of fat and 6.5 per cent of solids-not-fat, whereas as per Clause (a)(II) of Appendix D to the Prevention of Food Adulteration (Amendment) Rules, 1968, it should contain not less than 8.5 per cent solids other than milk fat and therefore there was a deficiency of 23 per cent of the minimum amount of the solids-not-fat and hence as_ the milk was found adulterated, the complaint was made, In support of this complaint, two witnesses were examined.
3. The accused contended that he is an employee of the Milk Marketing Society at Kakinada. that he was carrying the milk for distribution among members and the sample was taken from him and examined one witness in his defence.
4. The Magistrate on a consideration of the evidence found that the prosecution has failed to prove beyond doubt the sale of milk by the accused to P. W. 1, that P. W. 1. did not observe the provisions of Section 10(7) of the Act by procuring disinterested witnesses as mediators, that inasmuch as the accused was an employee of the Milk Marketing Society engaged for distribution of milk, it cannot be said that he had any knowledge of the standard of the milk that was entrusted to him for delivery and as such, he should have the benefit of Section 17 of the Act and in that view acquitted the accused of the charge. Hence this appeal by the State.
5. P, W, 1 the Food Inspector had stated that he had paid Re. 1/- to the accused and took one Ltr. of milk from him for sampling purposes in the presence of P, W. 2, who is a driver in a coffee company at Kakinada. According to P. W. 2. though he went to the scene when P. W. 1. was questioning the accused and writing something, it was after he went that the accused gave the milk in a Chembu to P. W. 1, who later divided the milk into three portions and put them in three bottles and sealed them. The mere fact that P. W. 1 is friend of his master who is the proprietor of Vijaya Coffee Works, is no ground for rejecting his evidence. Section 10(7) of the Act requires the Food Inspector who takes samples, as far as possible, to collect not less than two persons to be present at the time when such action is taken and take their signatures. In Kapoor Chand v. Jabalpur Corporation. AIR 1960 MadhPra 179 where no witness was called to be present at the time of purchase or taking of samples it was observed that the provision under Section 10(7) of the Act simply regulates the manner in which the Food Inspector is to exercise his power of taking samples and an exercise of power in disregard of the direction is not rendered ineffectual, that the language shows that the provision for calling two persons as witnesses is directory and not mandatory, and consequently the irregularity in not complying with it in terms would not vitiate the entire proceedings.
In State of Mysore v. Udipi Cooperative Milk Society AIR 1960 Mya 80 also it was held that a contravention of Section 10(7) of the Act did not per se vitiate the prosecution and that the essential test is one ... of prejudice to the accused apart from the reliability of the evidence adduced. In Radakishan v State of Uttar Pradesh : (1963)IILLJ667SC it was observed that even in a search under Section 103 of the Criminal P.C. which is stricter than the provisions of Section 10(7) of this Act, if there is an illegality in the search, it would only mean that the court has to scrutinise the evidence more carefully. In this case there is the evidence of P. Ws. 1 and 2 with regard to the milk taken from the accused and merely because P. W. 1 is the Food Inspector and P. W. 2 is a person working under a person known to the Food Inspector cannot be rejected as they can have no motive to foist a case against the accused. In this case, the accused himself admitted that the milk that was subsequently sent to the Public Analyst was taken from him by the Food Inspector. The fact that the milk that was found to be adulterated was taken by P. W. 1 from the accused is therefore established,
6. It was next contended that the accused, being only the servant of the Milk Marketing Society, is not liable. It was pointed out in Sarioo Prasad v. State of Uttar Pradesh. : 1961CriLJ747 as follows:
The Legislature has. in the interest of Public health, enacted the Prevention of Food Adulteration Act and has provided that all persons are prohibited from selling adulterated food. In the absence of any provision, express or necessarily implied from the context, the courts will not be justified in holding that the prohibition was only to apply to the owner of the shop and not to the agent or servant of the owner who sells adulterated food. If the owner of a shop in which adulterated food is sold without proof of mens rea liable to be punished for sale of adulterated food, there is no reason why an agent or servant of the owner is not liable to be punished for contravention of the same provision unless he is shown to have guilty knowledge.
In view of the above decision, the contention of the accused has no substance,
7. It is also further contended that since the accused took the milk in a sealed can given to him by the society as he has no knowledge of the contents being adulterated, he should be given benefit of Section 17(1) of the Act. A similar contention was raised in Public Prosecutor v. Pasala Jogi : AIR1966AP96 and was rejected. It is clear from the pro-vision of Section 17(1) that it applies only to persons who are in charge of and responsible for the company in the conduct of its business. This is to avoid making liable every partner of a company or a firm. This certainly does not apply to servants. In this case, the accused Was admittedly the servant of the milk marketing society. No doubt the milk was given to him in a sealed can to be taken, but it was meant for sale. In view of the observations made in : 1961CriLJ747 (Supra) the contention that the servant is not liable cannot be accented.
8. Another contention that had not been put forward in the two courts below, but urged now is that there was considerable delay in filing this complaint and as this has deprived the accused of the opportunity of sending the milk to the Director of Central Food Laboratory at New Delhi under the provisions of Section 13 (2) and (5) of the Act, he cannot be prosecuted for the offence. For this contention, reliance is placed on the decision in Municipal Corporation of Delhi v. Gaisaram. : 1967CriLJ939 . In this case sample of milk taken by the Food Inspector was on 7-3-1969 and sent to the Analyst. The report of the Analyst is dated 26-4-1969. The complaint bears the date 26-5-1969 and it was actually taken on file on 1-7-1969. The accused must have appeared some time thereafter. The availing of the opportunity by the accused to have the sample sent to the Director of Central Food Laboratory New Delhi arises only after the complaint is filed against him. That is what the provisions of Section 13(2) also indicate, as it says that after the institution of the prosecution under this Act, the accused can file an application for sending the sample to the Director of Central Food Laboratory for a certificate. But what has to be considered is whether the delay in this case of nearly four months is itself fatal to the prosecution.
The case cited above concerns the sale of curds. An expert was examined in that case to show that curds, start undergoing change after a week, if kept at room temperature, without a preservative, but remains, fit for analysis for another ten days thereafter, that on the other hand if the sample is kept in a refrigerator, it will preserve its fat and non-fatty solid contents for purposes of analysis for a total period of four weeks that if a preservative is added and the sample is kept at room temperature, the percentage of fat and non-fatty solids contents for purposes of analysis will be retained for about four months and in case it is kept in a refrigerator after adding the preservative, the total period which may be available for making analysis, without decomposition, will be six months.
In the present case no such evidence has been let in with regard to the milk that has been taken. Moreover, no effort has been made in this case to have the sample, given to the accused, sent to the Director of Central Food Laboratory, for analysis at any time. The accused has not availed of the opportunity provided under Section 63 (13 ?) of the Act and he cannot now contend that he is deprived of the benefit of Section 13(2) of the Act. As pointed out in the above case, the provisions of Section 13(2) are attracted only in cases where the analysis of the sample, sent to the Director of Central Food Laboratory, has been made by him on the basis of which he issues a certificate. If an article sent to him for analysis is found decomposed or deteriorated or unfit for examination, then the benefit would go to the accused, as it is due to the deliberate conduct of the prosecution in delaying the laving of the complaint that the sample had deteriorated and prejudice has been caused to the accused.
But in cases where the accused had not chosen to avail the opportunity given to him under Section 13(2). he cannot be heard to say that any prejudice has been caused to him. Under these circumstances, the contention that as there was delay, there was prejudice to the accused and therefore he is entitled to an acquittal has no substance. As pointed out in the above decision, if for any reason no such certificate is issued by the Director of Central Food Laboratory, Delhi, the report of the Public Analyst does not cease to be good evidence merely because a certificate from the Director of the Central Food Laboratory cannot be obtained. It could have been superseded by a certificate issued by the Director of Central Food Laboratory but there being no certificate issued by the Director of Central Food Laboratory, the report of the Public Analyst is final and conclusive evidence of the analysis contained in it. Therefore in the absence of the certificate of the Director of Central Food Laboratory it is the report of the Public Analyst that has to be relied on and his report in this case shows that the milk taken from the accused was adulterated as pointed out. The accused has therefore committed the offence with which he has been charged. The order of acquittal, is therefore, set aside and the accused is convicted of the charge under Section 16(a) and Section 7 read with Section 2(1)(a)(i) of the Prevention of Food Adulteration Act.
9. Since the accused is only a servant and as the offence in this case falls under Section 2(1)(h) the ends of justice would be met if a fine is imposed. The accused is therefore sentenced to pay a fine of Rs. 100/- in default to undergo R. I. for one month.
10. In the result, the appeal is allowed accordingly.