Hari Swarup, J.
1. This revision has been filed by the applicant against his conviction under Section 7/16 of the Prevention of Food Adulteration Act and the sentence of four months' R. I. and a fine of Rs. 300 awarded to him for the offence. The case of the prosecution in brief was that the accused was found carrying milk in a container exhibiting the same for sale. The Food Inspector after disclosing his identity purchased 660 milli-litres of milk on payment of price and divided the same into samples as required by law. At the time of the purchase the accused had told the Food Inspector that it was a mixture of cow milk and goat milk in equal proportions. The sample of milk was sent for analysis and the Public Analyst found the milk deficient in non-fatty solids contents by about 25%. Fat contents were 3.9% and non-fatty solids were 6%. The Public Analyst had applied the standard derived from the statutory standards for cow milk and goat milk mixed in the proportion specified by the Food Inspector i.e. 1:1,
2. The prosecution examined the Food Inspector and the Octroi Superintendent who had witnessed the sale by the accused to the Food Inspector at the time of the taking of sample, They supported the prosecution case. The plea of the accused in his defence was that he was carrying this milk for a relation and the milk was not meant for sale. The accused produced a witness in support of his defence version who also stated that he had asked the accused to bring the milk for him as he needed the same in connection with the betrothal ceremony of his daughter.
3. The trial court after considering the evidence came to the conclusion that the accused had sold milk to the Food Inspector and the sample was proved to be adulterated. The Court accordingly convicted the accused. However, without assigning any adequate or special reason the learned Magistrate awarded a sentence below the minimum prescribed by law. The accused went up in appeal. The appeal was dismissed. The appellate court also did not give any reason for justifying the sentence awarded by the trial court which was below the minimum prescribed by law. The accused has now come up in revision to this Court.
4. The first contention raised by the learned Counsel is that the accused could not be held guilty as the fatty contents in the milk were not below the minimum prescribed, There is no merit in this contention as the non-fatty solids were below the minimum prescribed. I need not repeat the reasons for holding that such a milk will be deemed to be adulterated within the meaning of the Prevention of Food Adulteration Act as the reasons have already been given in my decision in Rajan Lal v. State Criminal Revision No. 1224 of 1972 : reported in 1976 Cri LJ 516 (All). In that case after reviewing the relevant law I deduced the following principles for determining if a particular sample of milk is adulterated or not. Those principles are as follows:
1. That if the deficiency is either in the fat contents or non-fatty contents, the article of food would be deemed to be adulterated.
2. That if the aggregate of the fat and non-fatty solids contents in the milk is more than the aggregate of the minimum prescribed and the deficiency in one of the contents is marginal, the courts may not punish the accused on the ground that the marginal deficiency may be due to the error in the analysis by the Public Analyst.
3. That in the case of deficiency in one of the contents namely fat or non-fatty solids and the aggregate is also below the aggregate of the two as prescribed in the rules, the article would be deemed to be adulterated.
4. That if the deficiency in either of the two contents namely fat and non-fatty solids contents is such that the deficiency cannot normally be assigned to the error in analysis by the Public Analyst, benefit may not be available to the accused by holding that the milk was not adulterated.
The present case is covered by principles Nos. 1, 3 and 4 and is not covered by principle No, 2. The milk will accordingly be deemed to be adulterated within the meaning of Section 2 of the Prevention of Food Adulteration Act.
5-6. The next contention of the learned Counsel is that the requirements of Sub-section (7) of Section 10 of the Prevention of Food Adulteration Act have not been complied with. That provision requires that when a Food Inspector takes sample he must call one or more persons to be present at the time when the sample is taken. The contention is that an independent person has not been called to witness the transaction. Learned Counsel in support of his argument relied on the decision of the Supreme Court in Ram Labhaya v. Delhi Municipality : 1974CriLJ672 .
In that case the Supreme Court held that the intention of law was to require an independent witness, It appears that a person who is a member of the Food Inspector's staff should not normally be considered an independent person, but his presence could be taken to be sufficient compliance of law in case of non-availability of better witnesses. In that case there was evidence to the effect that other persons were not willing to appear as witnesses. The present is also a similar case. Here also the evidence of Food Inspector is that nobody was available to witness the sale as there was none present on the occasion except other employees of the Municipal Board.
7. Further, in the present case the witness cannot be said to be not an independent witness. He is a Toll and Terminal Tax Superintendent. The learned Counsel contends that because he is an employee of the same Municipal Board, he cannot be deemed to be an independent person. There appears however to be no reason for holding that every employee of the Municipal Board would be not an independent person. An independent person is a person whose will is not dependent on the will of the Food Inspector. The Tax Superintendent is not a subordinate of the Food Inspector. He does not belong to his staff. His will cannot be deemed to be controllable by the will of the Food Inspector. The Food Inspector and the Tax Superintendent cannot be deemed to have the common objective to see that the prosecution succeeds. The success of the prosecution can bring no benefit to the Tax Superintendent. It is thus not possible to hold that the Tax Superintendent was not an independent person within the meaning of Sub-section (7) of Section 10 of the Prevention of Food Adulteration Act.
8. Learned Counsel also contended that the accused could not be convicted under Section 16 of the Act for selling adulterated milk because he was carrying a prohibited mixture of milk. Rule 44 (k) prohibits the sale of a mixture of different kinds of milk except toned milk, double toned milk, recombined or reconstituted milk or standardised milk. On the contention of the learned Counsel, the accused will be guilty of this offence also under Section 16 of the Prevention of Food Adulteration Act. Section 16(1)(a)(ii) makes punishable the sale of an article of food in contravention of any provision or any rule made under the Act. The applicant would have therefore been liable to be punished even for this additional offence. But if a person commits two offences, his conviction and punishment for one offence cannot be held to be vitiated under law simply because he is not convicted and punished for the other offence which he commits at the same time by the same act. The standard of cow milk has been prescribed and the standard for goat milk has also been prescribed. The non-fatty contents of the milk in the present case were deficient by the application of the standard either of cow milk or goat milk. It was deficient therefore, also if the mixture was to be tested on the basis of mixed milk. The milk sold by the accused was thus adulterated within the meaning of the definition of adulterated food contained in Section 2(i) of the Act. The conviction of the applicant on this ground also cannot be deemed to be bad.
9. Learned Counsel then contended that the sentence awarded to the applicant be reduced still further. There is no adequate or special ground mentioned by the courts below for giving the sentence below the minimum. Learned Counsel contended that the sentence below the minimum be awarded as the accused was taking the milk to his relation, That is absolutely no ground for awarding a sentence below the minimum. The milk was meant for human consumption. It was to be supplied to a person who had to distribute it among his guests which may include even the children. There can be no justification for a person to carry adulterated milk for supplying thereof to a relation for being distributed to the guests. Such an action cannot provides any adequate or special reason for awarding the sentence below the minimum prescribed by law.
10. In the result, the revision fails and is dismissed. The applicant is on bail. He shall be taken into custody to serve out the sentence. The stay order is vacated.
11. I had passed a reference order on 8-7-1975 directing a reference of the case for decision to a Division Bench as I had felt some doubt about the law expressed in the case of Sultan Shah v. State through Nagar Swastha Adhikari, Agra 1973 All WR (HC) 383 : 1973 Cri LJ 1413. After that order of reference was passed I had the occasion to consider that case along with many other cases in Criminal Revision No. 1224 of 1972 : reported in 1976 Cri LJ 516 (All), Rajan Lal v. State. On a reconsideration of the ratio of Sultan Shah v. State through Negar Swastha Adhikari, Agra (supra) I found that there was nothing in that case which went against the view which I was inclined to take or which had been taken by the other courts and the Supreme Court. Accordingly finding that the reference was not called for I directed the case to be listed for further arguments and meanwhile suspended by my order dated 8-7-1975, The case was re-heard and after re-hearing the learned Counsel for the parties I am of opinion that the reference in this case is not necessary as I am not to take a view contrary to the view taken in Sultan Shah's case. I accordingly recall my order dated 8-7-1975 by which I directed a reference of the case to a larger Bench.