1. This is an appeal against the order of acquittal passed by the Judicial Magistrate 1st Class, Ambala, in a complaint filed against one Basakhi Ram under Section 16(1)(a) read with Section 7(i) of the Prevention of Food Adulteration Act, 1954, -- hereinafter called the Act.
2. Two complaints were lodged by the Food Inspector Shri Prem Chand of the Municipal Committee, Ambala City, with regard to one incident. On the 10th of May, 1959, at 5-30 a.m. Basakhi Ram was stopped by the Food Inspector on the Skulkund Road, Ambala City. Basakhi Ram was carrying milk in two drums. On these drums it was written in Urdu that the drums contained cow's milk. The Food Inspector purchased three-fourths of a seer of milk from each of the drums and paid Rs. 0.36 nP as the price. This milk was then sealed in three small bottles with regard to one drum and in another three bottles with regard to the other drum. One bottle pertaining to each of the drums was handed over to Basakhi Ram, the other set of two was retained by the Food Inspector and the third set was sent to the Public Analyst for report. Exhibits P.A. and P.A/I are the receipts given by Shri Prem Chand, Food Inspector to Basakhi Ram with regard to the taking of the sample of milk from one drum. In these receipts it is clearly stated that the milk was cow's milk.
3. These receipts are signed by Basakhi Ram, Mangal Singh Daroga and Shri Sant Ram Municipal Commissioner. It may be mentioned that Mangal Singh Daroga is attached to the Food Inspector. There are also two receipts by Basakhi Ram in the sum of Re. 0.36 nP. pertaining to the purchase of milk out of the second drum. They arc Exhibits P.B and P.B/r. In these receipts also it is clearly stated that the milk purchased was cow's milk. The report of the Public Analyst discloses that milk from one drum was adulterated to the extent of 90 per cent and in the other to the extent of 72 per cent. In one sample the fat content was 0.4 per cent and milk solid was 9 per cent. In the other sample the milk fat was 1.1 per cent and milk solid 9.3 per cent. On the basis of the report of the Public Analyst, the Food Inspector filed two separate complaints under Section 16(1)(a) of the Act in the Court of the Additional District Magistrate on the 3oth of May, 1959. Both these complaints were tried summarily. The accused pleaded guilty with the result that in one case he was fined a sum of Rs. 150/- and in the other Rs. 200/-, or in default of payment of fine to undergo simple imprisonment for three months and four months respectively.
4. Against his conviction the accused filed a revision in the Court of the Sessions Judge and that revision was recommended by Shri Rameshwar Dyal, Sessions Judge, Ambala, under Section 438 of the Code of Criminal Procedure. The learned Judge came to the conclusion that in view of the mention in the judgment of the Magistrate about a previous conviction of the accused for a similar offence, though that previous conviction had not been proved, the accused could not be tried in a summary fashion because for a second offence the minimum punishment under the Act was one year imprisonment and a fine of Rs. 2,000/- and, therefore, in view of the provisions of Section 260 of the Code of Criminal Procedure there could be no summary trial. He recommended that the proceedings be quashed as the trial was illegal and retrial be ordered. This reported revision came up for hearing before R. P. Khosla J. The learned Judge while disposing of the revision observed:
'For purposes of taking cognizance and deciding whether the case had to be tried as a warrant case or not, tender of document in proof of previous conviction could not have been insisted upon at the stage of the filing of the complaint. It was sufficient that the complaint disclosed the factum of a previous conviction. The learned Magistrate obviously being aware of the consequences of a previous conviction if admitted or proved resulting in enhanced minimum sentence provided by the relevant provisions for a second subsequent conviction had to try the matter as a warrant case.'
With the aforesaid observations the recommendation of the learned Sessions Judge was accepted, the conviction and sentence of the accused was quashed and the complaints were ordered to be retried. Both these complaints then came up before Magistrate 1st Class Ambala who took the view that the two complaints pertained to one and the same transaction and the offences alleged were of the same kind. Accordingly, he observed that :
'there is no point in making two distinct offences in this case when the transaction is the same and the offence whether committed in respect of one drum or in respect of the second drum is also the same.'
Acting under the provisions of Section 234, Code of Criminal Procedure, he directed that both these complaints be amalgamated into one and a consolidated charge be framed against the accused and tried at one trial. Consequently, the accused was charged on the 20th of June, 1959, with an offence under Section 16(1) of the Act. The accused pleaded not guilty to the charge and claimed to be tried.
5. In evidence the Food Inspector, his Daroga Mangal Singh and the Municipal Commissioner Sant Ram were examined by the prosecution and in addition the judgment showing the previous con-viction of the accused as well as the report of the Public Analyst were put in evidence. The defence of the accused was that he was carrying separated milk not for sale but for his own consumption and he never sold any cow's milk to the Food Inspector. In support of this defence, he examined Sita Ram D. W. 1, and Gurbachan Singh D. W. 2. The learned Judicial Magistrate who tried this case in a judgment which is not only perfunctory but is also perverse and based on no evidence but on conjectures and surmises came to the conclusion that it was not proved that either Basakhi Ram was engaged in the sale of the milk or that he did sell any cow's milk to the Food Inspector. He held that it was not proved that the accused was carrying the said milk for purposes of sale, storage or distribution as contemplated under the provisions of Section 7 of the Act, and further that there was no proof that the milk was adulterated, because the Public Analyst had not been examined and his report being not true could not be accepted in evidence. In this view of the matter, he acquitted the accused. Against this acquittal an application was filed in this Court under Section 417(3) of the Code of Criminal Procedure for the grant of special leave to appeal from the aforesaid order of acquittal. This application came up for hearing before Shamsher Bahadur and Gurdev Singh JJ. and the following order was recorded :
'After hearing counsel for the parties, we grant leave under Section 417 (3) of the Criminal Procedure Code to complainant to file an appeal from the order of acquittal.'
That ia how, the matter has been placed before US.
6. It, is a settled rule of law that this Court will be chary to interfere with the order of acquittal if on the evidence two views are possible and one view has been adopted by the Court below. But in case on the evidence two views are not possible and the only conclusion that can ba arrived at is that the guilt has been brought home to the accused the order of acquittal will not be allowed to stand. Therefore, the short question that arises for determination is whether on the evidence it can be held that no milk was sold and that the milk which was taken by the Food Inspector from the accused was not adulterated. So far as the evidence goes it leads to one and the only one conclusion, namely, that the milk was sold. This fact is proved by the receipts given by the Food Inspector, Exhibits P.A., P.A/1, P.B., P.3/1, P.C., P.C/1. In Exhibit P.C. there is clear declaration by the accused signed by him that he had sold 12 Chhatanks of cow's milk to the Municipal Food Inspector under Section 11 of the Act. In the other set of documents also there is a clear mention that the milk that was taken by the Food Inspector was cow's milk and the price that was received by the accused was for cow-milk. The accused admitted having signed these documents. Moreover, we have the evidence of Shri Sant Ram, Municipal Commissioner, to the effect that on the drums words 'cow's milk' were written in red paint in Urdu characters. One of the defence witnesses D.W.1 Sita Ram also admitted that the price of the milk at the rate of annas 8 per seer was paidto the accused by the Food Inspector. Therefore,there can be no manner of doubt that the accuseddid sell the milk to the Food Inspector. Moreoverone cannot lose sight of the fact that the accusedis by profession a milk seller. At this stage, itwill be profitable to refer to Section 10(9), which isin these' 'terms'':
'Any Food Inspector exercising powers under this Act or under the rules made thereunder who--
(a) vexatiously and without any reasonable grounds of suspicion seizes any article of food; or
(b) commits any other act to the injury at any person without having reason to believe that such act is necessary for the execution of his duty shall be guilty of an offence under this Act and shall be punishably for such offence with fine which may extend to five hundred rupees.'
This provision is enough guarantee to any vendor of food if he is being harassed by a Food Inspector. If the accused was not carrying milk for sale he would have said so at the time when the samples were sought to be taken and as a matter of fact he could have legitimately declined to give the samples or to sell the milk to the Food Inspector, It is significant that at the time of the passing of the receipts. Exhibits P.A., P.A/1, P.B., P.B/1, P.C., and P.C/1 no mention was made by the accused that what he was selling was either separated milk or milk not meant for sale but for his own consumption, as is now sought to be urged in defence. Therefore, reading the evidence as a whole and particularly the statement of Sant Ram who is a thoroughly independent witness it must be held that the accused was carrying the milk for sale and did actually sell the milk to the Food Inspector. Therefore, the conclusion of the learn-ed Juditial Magistrate is not only unwarranted but wholly against the evidence on the record and, therefore, not justified.
7. Before concluding this part of the case, it will be proper to refer to the definition of 'the word 'sale' in Section 2(xiii) of the Act. Sale is defined in these terms :
'2(xiii). Sale with its grammatical variations and cognate expressions, means the sale of any article of food, whether for cash or on credit or by way of exchange and whether by wholesale or retail, for human consumption or use, or for analysis, and includes an agreement for sale, or offer for sale, the exposing for sale or having in possession for sale of any such article, and includes also an attempt to sell any such article.'
and it is obvious from this definition that the purchase of milk for analysis would be sale within the meaning of this Act. It was, therefore, not necessary to prove that the accused sold milk to different persons on that date. Once it is held that he sold milk to the Inspector for purposes of analysis it would be sate and would bring into operation the provisions of the Act. In whatever manner the matter is looked at, it is obvious that the learned Judicial Magistrate did not properly apply his mind either to the evidence, oral or documentary, or to the provisions of the Act. If he had cared to do so, he would not have come to the conclusion to which he came, namely, that the milk was not sold by the accused. Therefore, disagreeing with the finding of the Magistrate that there was no sale of milk it must be held on the evidence on the record that the accused did sell the milk.
8. This brings me to the second argument which prevailed with the learned Judicial Magistrate, namely, that' there is no evidence that the milk was adulterated. He came to this conclusion after holding that the reports of the Public Analyst were not admissible in evidence. The reports of the Public Analyst are Exhibits P. D. 1 and P. D. 2 and these reports are per se evidence by reason of Section 13 of the Act. Section 13 is in these terms:
'13(1). The public Analyst shall deliver in such forms as may be prescribed, a report to the Food Inspector of the result of the analysis of any article of food submitted to him for analysis.
(a) After the institution of a prosecution under this Act the accused vendor or the complainant may on payment of the prescribed fee, make an application to the Court for sending the part of the sample mentioned in Sub-clause (i) or sob-clause (iii) of Clause (c) of Sub-section (i) of Section 11 to the Director of the Central Food Laboratory for a certificate; and on receipt of the application the Court shall first ascertain that the mark and seal or fastening as provided in Clause (b) of Sub-section (i) of Section 11 are intact and may then despatch the part of the sample under its own seal to the Director of the Central Food Laboratory who shall thereupon send a certificate to the Court in the prescribed form within one month from the date of receipt of the sample, specifying the result of his analysis.
(3) The certificate issued by the Director of the Central Food Laboratory under Sub-section (2) shall supersede the report given by the Public Analyst under Sub-section (i).
(4) * * *
(5) * * *
Provided * * * *'.
It was open to the accused to challenge the report of the analyst and for that purpose procedure is prescribed in Section 13(2). He could get the sample given to him sent for analysis to the Central Food Laboratory and the report of the Central Food Laboratory would override the report of the Public Analyst. In case this procedure is not adopted by the accused the report of the Public Analyst is evidence and cannot be ruled out as has been done by the Judicial Magistrate in this case. This would also dispose of an additional argument adopted by the Magistrate in this connection. The Magistrate was of the view that it is not shown that the samples taken reached the hands of the Public Analyst without being tampered with. If he had cared to go through the reports' of the Analyst he would have found that the reports clearly state that the samples received had the seals intact and unbroken. It was open to the accused, as I have already said, to go behind the report of the Public Analyst by the procedure prescribed under Section 13(2). The very fact that he never followed that procedure indicates that he accepted that the reports of the Public Analyst were in order. Moreover, no cross-examination was directed on this matter when the Food Inspector appeared in the witness-box. Therefore, it is idle to suggest that there was any tampering with the seals of the samples and this finding is based on pure conjectures and surmises. The net result, therefore, is that on the evidence on the record it is clearly proved that the milk was adulterated. Therefore, it must be held that the accused is guilty of the offence charged and he has been wrongly acquitted. We would, therefore, bold the accused guilty of the offence charged.
9. This brings me to the question of sent-tence; it is proved on the record that this is a second offence committed by the accused. The judgment of the previous conviction has been placed on the record of this case and there is the evidence of the Food Inspector to that effect when he appeared as a witness in the case. It is provided in Section 16(1)(g)(ii) that for a second offence the punishment is to be imprisonment for a period which may extend to two years and fine. The pro-viso further enjoins that the imprisonment shall not be less than one year and the fine shall not be less than Rs. 2,000/-, unless there are some special and adequate reasons to the contrary to be mentioned in the judgment of the Court. Therefore the minimum punishment that has to be awarded in the circumstances would be imprisonment for one year and a fine of Rs. 2,000/-. However, in view of the fact that this offence had to be retried and there has been considerable delay in the disposal of this case, in our view it would be a fit case where the ends of justice would be met by awarding a lesser punishment than that provided for by the proviso. We, therefore, sentence the accused to undergo simple imprisonment for a period of six months and a fine of Rs. 1,000/-. In case of default in the payment of fine, he shall undergo imprisonment for a further period of three months.
S.S. Dulat, Ag. C.J.
10. I agree.