S.D. Singh, J.
1. This is a State appeal against an order of the Bench Magistrate, First Class, Moradabad, by which the present respondent Angan was acquitted in a case under Section 7 read with Section 16 of the Prevention of Food Adulteration Act (No. XXXVII of 1954).
2. The respondent is a dealer in milk. A sample of his milk was taken by the Food Inspector, I.P. Apan, on 24th September 1963 and when the sample of milk was examined it was found to be deficient in fat contents by about 17 per cent and in non-fatty solids by about 2 per cent. The respondent was then prosecuted by the Medical Officer of Health of Municipal Board, Chandausi, as aforesaid.
3. During the hearing of the case against the respondent, it was urged that Sri I.P. Apan was not qualified to be appointed a Food Inspector under Section 9 of the Prevention of Food Adulteration Act, 1954 (hereinafter called the Act) read with Rule 8 of the Rules framed thereunder. This contention found favour with the learned Bench Magistrates with the result that the respondent was acquitted and hence this appeal by the State.
4. Section 9 of the Act empowers the State Government to appoint Food Inspectors having 'the prescribed qualifications.' Under Rule 8 of the Rules framed under the Act, the State Government has prescribed the qualifications for a Food Inspector. The qualifications of Sri I.P. Apan, who was appointed Food Inspector on 80th March 1963 could fall only under Cl.(3) of Rule 8 aforesaid. When his qualifications were challenged in cross-examination, he tried to bluff the court and to pose as if he had all the qualifications which are prescribed for appointment of a person as a Food Inspector; but when the point was pressed in cross-exemination he had to admit though in a round about manner, that he did not possess the required qualifications. Sri I.P. Apan'a statement is from that point of view full of perjury and it is a little surprising that the Bench Magistrates did not think of prosecuting him under Section 193 of the Indian Penal Code. If he had been appointed Food Inspector without possessing the required qualifications, it was not probably so much of his fault as of those who made the appointment; but all the same he should not have debased himself in the witness box by stating facts which were not correct--which were not only not correct but were false to his knowledge. In examination-in-chief he made a wonderful statement that he was a qualified Food Inspector according to certain G. O. That G. O. to which reference was made by him is No. 4575/XVI-II-1788-1952 dated lst November 1952. It only refers to the further training of these Sanitary Inspectors who did not have the required qualifications and permits the unqualified Sanitary Inspectors to continue on their posts as a stopgap arrangement. This G. O. has nothing to do with the qualifications of a Food Inspector which qualifications are prescribed by Rule 8 of the Prevention of Food Adulteration Rules 1955.
Under the Proviso to Cl. (3) of Rule 8, an-unqualified person could be appointed Food Inspector within a period of four years from the date of the commencement of the Act and under the second Proviso to the same clause a person so appointed as Food Inspector within the period of four years could be allowed to hold his post even after the expiry of that period if the State Government was satisfied that he continued to possess adequate knowledge and competence as Food Inspector. The-appointment of Sri I.P. Apan was made on 80th March 1968, while the Prevention of Food Adulteration sot, 1954 came into force on 1st June 1955. The appointment was, therefore, after the expiry of the period of four years and since Sri I.P. Apan ultimately admitted in his cross-examination that by the time of his appointment or even by the time the sample of milk was taken by him, he had not acquired the required qualifications, his appointment as Food Inspector was definitely against the provisions of law and consequently invalid Sri I.P. Apan could not, as such exercise any of the functions of a Food Inspector.
6. The milk for the purpose of being tested under the act was purchased by Sri I.P. Apan on 24th September, 1968, on which date he was not a validly appointed Food Inspector and the sample could not as such be taken by him under Section 11 of the sot. Section 12 of the Act, however, empowers even a private citizen to purchase milk for being sent to the Public Analyst. That section reads:
12. Purchaser may have food analysed: Nothing contained in this act shall be deemed to prevent a purchaser of any article of food, other than a food inspector, from having such article analysed by the public analyst on payment of such fees as may be prescribed and from receiving from the public analyst a report of his analysis:
Under the section, as it stands, a purchaser of any article of food other than a Food Inspector may have such article analysed by the public analyst on payment of such fees as may be prescribed and receive a report of such analysis. Even if, therefore, Sri I.P. Apan was not a. Food Inspector properly so called, be was a purchaser of an article of food who could purchase the milk from the respondent and have it sent to the Public Analyst for analysis. It is true that when a private purchaser sends an article of food for analysis to the public analyst, he has to pay such fees as may be presecribed for the purpose, and in this case since Sri I.P. Apan was purporting to act as a Food Inspector no fees may have been paid by him. but that is a matter between the State and the purchaser of the article of food. If the State does not care to recover the prescribed fees from him and the Public analyst sends the report of the analysis without payment of any fees, that would not make the report inadmissible in evidence or otherwise vitiate the proceedings.
6. The next question for consideration in the case is whether a Magistrate could take cognizance of on offense under the act under Sub-section (1) of Section 20. Sub-section (1) of Section 20 aforesaid reads:
20. Cognizance and trial of offences:
(1) No prosecution for an offence under this Act shall be instituted except by, or with the written consent of, the State Government or a local authority or a person authorised in this behalf by the State Government or a local authority:
Provided that a persecution for an offence under this Act may be instituted by a purchaser referred to in Section 12, if he produces in Court a copy of the report of the Public analyst along with the complaint.
The prosecutions under the Act are normally launched under Sub-section (1) aforesaid by or with the written consent of the State Government or a local authority or a person authorised in this behalf by the State Government or a local authority. But even a purchaser of the sample of an article of food under Section 12 may prosecute the vendor under the proviso to Sub-section (1) aforesaid if he produces in Court a copy of the report of the public Analyst along with the complaint. In this particular case the complaint was made not by Sri I.P. Apan who could as I have said earlier, be regarded as a private purchaser under B. 12 of the Act, but by 'the Medical Officer of Health and Food Inspector' whose name it is difficult to decipher from the record. It was not the contention of the respondent that the Medical Officer of Health hid not the authority to file the complaint against him. What was urged before me during the hearing of this appeal was that if the sample of the article of food is taken by a private person under Section 12 of the Act only he can fila a complaint under the proviso to Sub-section (1) of Section 20 and not the Medical Officer of Health as Food Inspector.
I do not, however, think there is anything lin the Act which porhibits a complaint being filed under the main clause of Section 20 of the Act even in cases where the article of food may have been purchased as a sample by a private purchaser under Section 12. Sub-section (l) of Section 20 does not lay down that a complaint may be made under that sub-section only when the procedure prescribed under Section 11 of the Act has been followed by the Food Inspector himself. The procedure prescribed under Section 11 is to some extent made applicable even to the taking of a simple of article of food by a private purchaser under Section 12. If to that extent the provisions of Sections 11 and 12 of the Act have bean complied with, there is nothing in the act to prohibit the filing of a complaint under the main clause of Sub-section (1) of Section 20 even in case the sample of the articles of food is taken by a private purchaser. This was also the view taken in two Calcutta cases, Sawai Ram Agarwala v. Emperor AIR 1934 Cal 858 and Manindra Nath Banarji v. Jyotish Chandra Datta : AIR1937Cal60 . These two decision were under the Bengal Food Adulteration Act, 1919, and the relevant provisions thereof are not before me, but the principle which was followed in the two cases would be applicable to the facts of this case. In those cases samples were taken by the Sanitary Inspector who was not authorised to act as such under the relevant provisions of the Bengal Act. It was held that the person who held the post of Sanitary Inspector could take the samples and send them to public analyst for examination as a private individual.
7. A case under the Prevention of Food Adulteration Act (37 of 1954) and relating to the very same Inspector, Sri I.P. Apan, came up before Ramabadran, J. in Criminal Appeal No. 2482 of 1964. He too took the view that the Food Inspector as a private individual was not debarred from taking the sample and submitting the same to the Public Analyat and that on the basis of that report and the complaint filed by the Medical Officer of Health the Court was within its jurisdiction in taking cognizance of the offence.
8. It was pointed out by the learned Counsel for the respondent that the sample of milk was not sent to the Analyst by Sri I.P. Apan but by the Medical Officer of Health. The report of the Public Analyst however indicates that the sample was received by him from 'the Food Inspector c/o the Medical Officer of Health, Municipal Board, Chandausi.' The report thus distinguishes between the Food Inspector and the Medical Officer of Health and since it was Sri I.P. Apan who was holding the post of Food Inspector though, as I have said earlier, the appointment was invalid, it can eisily be inferred that the sample was sent by him and not by the Medical Officer of Health.
9. It was contended by the learned connsel fot the respondent that if this is the view I take in this case there is no other question of law or fact which would require further consideration as the sample of milk which was sent to the Public Analyst was sold by the respondent and found to have been adulterated, which makes the provisions of Section 7 read with Section 16 of the Prevention of Food Adulteration Act applicable.
10. It was urged that in passing the sentence a lenient view may be taken and to some extent that is passible. The sample of food was taken on 24th September, 1963 and the case against the respondent has been hanging for over 4 years. I, therefore, consider it a fit case in which a substantial sentence of imprisonment may not be awarded.
11. The appeal is allowed. The respondent Angan is convicted under Section 7 read with Section 16(1)(i) of the Act and is sentenced to pay a fine of Rs. 50/-. In default of payment of fine he will undergo one month's simple imprisonment. One month's time is allowed for payment of fine.