R.N. Aggarwal, J.
(1) This is a revision petition against the order of the Additional Sessions Judge affirming the order of the Magistrate convicting the petitioner Amrit Lal under section 7 read with section 16 of the Prevention of Food Adulteration Act, 1954 and sentencing him to regorous imprisonment for six months and a fine of Rs. 1,000.00 and in default of fine to undergo rigorous imprisonment for six months.
(2) On 11th September, 1975 at 7 a, m. Food Inspector Devi Singh (PW. 2) intercepted the petitioner near the New Bank of India, Shivaji Park Rohtak Road, while he was carrying a can containing 17 litres of cow's milk on a bicycle. There was an indication on the can that the milk was 'cow's milk'. The Food Inspector disclosed his identity to the petitioner and purchased 660 milk litres of milk for analaysis on payment of Rs. 1.20 p. as the price of the sample milk The Food Inspector divided the sample into three parts and sealed it in three dry bottles. One part of the sample was given to the accused, One part was sent to the Public Analyst and the third part was remained by Food Inspector.
(3) The sample was analaysed by the Public Analysed by the Public Analyst on 12th September, 1975 and he found the following :-
'Milk Fat 0.3% milk Solids Not fat 10.56% Starch Absent Cane Sugar Absent.'
On the above analysis the Public Analyst gave the opinion that the sample is misbranded as the same is skimmed milk but was declared as cow's milk. On the receipt of the report of the Public Analyst the Municipal Prosecutor filed a complaint against the petitioner under Section 7 read with Section 16 of the Prevention of Food Adulteration Act.
(4) The petitioner was put up on trial on the following charge :
'THATyou on llth of September, 197 5 at about 7.00 A.M. were carrying cow's milk for sale near New Bank of India, Shivaji Park Rohtak Road, Delhi when you sold a sample thereof to Shri Devi Singh, Fi and which on analysis was found to be misbranded as it was actually skim skimed milk'.
(5) The prosecution in support of its case examined P. W. 1 Shri R. N. Gujral, Assistant Municipal Prosecutor, Public Witness . 2 Shri Devi Singh, Food Inspector P.W. 3 Shri 0. P. Gupta, Food Inspector, P. W. 4 Tirath Ram and Public Witness . 5 Shri Sita Ram Sharma, license Clerk.
(6) The petitioner in his statement under Section 13 of the code of Criminial Procedure admitted the taking of the sample by the Pood Inspector but pleaded that the milk sold was skimmed milk and not cow's milk. The petitioner in support of his defense examined Dharampaul (D.W.1) who supported the defense taken by the accused petitioner.
(7) The trial court found the accused guilty of the offence charged with sentenced him to rigorous imprisonment for six months and fine of Rs. 10,000.00. This conviction and sentence on appeal was affirmed by the Additional Sessions Judge.
(8) On behalf of the petitioner it is contended by Shri Gulshan Rai that the petitioner was charged with the offence of misbranding whereas lie has been guilty of the offence of adulteration and that she two offences constitute different offences requiring proof of different facts and, thereforee, she convicton of the petitioner is not legal The learned counsel in support of his contention placed reliance on Municipal Corporation of Delhi v. Mohd. Kareem 1973 F. A. C. 81.
(9) I have carefully considered .he contention of Shir Gulshan Rai but I find no merit in it. The trial Magistrate bad found the peritioner guilty of the offence of misbranding and convicted him of the said offence. The concluding portion of the said judgment is reproduced below :-
'I have heard the accused on the point of sentence. The accused is a youthful offender, and not an ex-convict. The court has discretion to award lesser sentence that the minimum prescribed for the offences under this Act if the offence falls under the proviso of Section 16(1) and also that there exists special and adequate grounds for awarding sub-minimum punishment. The present case does not fall under the proviso as tfce accused had sold skimmed milk in place of cow's milk. Technically this is an offence of misbranding but in actually is worst kind of adulteration in the milk. The only kind of mis- branding which falls under proviso is sub clause (k) of clause (ix) of Section 2 i e. if the food article is not labelled in accordance with the requirements of the Act or Rule made there under. The kind of misbranding in quesiion does not fall in this category. Once it is found that the offence is not covered under the proviso, the court has no discretion then to award the sub-minimum punishment as such an act of the court will tantamount entering in the legislative field. 1, keeping in view, the young age of the accused and the fact that he is first offender deem that the sentence of six months R.I. and line of Rs. 1,000.00, in default six months R.I. would meet the ends of justice for selling the misbranded milk.'
(10) It would be clear from the above that Magistrate has convicted and sentenced the accused for the offence of misbranding and pot adulteration as contended to by the learned counsel. The conviction and sentence were affirmed by the Additional Sessions Judge.
(11) On merits also I find no substance in the revision petition. On the container there was indication that the milk is Cow's milk. Ex. Pc is an inventory prepared by the Food Inspector regarding the taking of the sample. The inventory bears the signature and thumb impression of Amrit Lal. It is ali;o witnessed by Shri Om Prakash, Food inspector Shri Iirath Ram (P. W. 4). The inventory Ex. Pc shows that the sample sold was of cow's milk. P. W. 2 Shri Devi Singh, Food Inspector, testified that the accused had disclosed at spot that the milk was cow's milk and it was so written also on the can ; there was no suggestion to the food Inspector that the milk sold was skimmed milk. There is evidence that the petitioner has license only for the sale of cow's milk. In my view, the courts below have rightly disbelieved the evidence of Public Witness .4 that the accused had told the Food Inspector that it was skimmed milk ; had it been so the accused would have definitely made an entry to that effect in the inventory Ex. PC.
(12) On the evidence on record it is apply established that the accused had sold skimmed milk as cow's milk. Sub-clause (iv) of section 2 defines the expression 'misbranded' and the relevant portion of it reads as follows :
'(IX)'Misbranded'-and article of food shall be deemmed to be misbranded, (a) if it is an imitation of, or is a substitute for, or resemble in a manner likely to deceive, another article of food under the name of which it is sold, and is not plainly and conspicuously labelled so as to indicate it true character ; (b) if it is falsely stated to be the product of any place or country ; (c) if it is sold by a name which belongs to another article of food ;'
(13) In my view, on the facts found the offence clearly falls under sub-clause (c) of section 2(ix). The petitioner had sold skimmed milk as cow's milk. I have perused the case Municipal Corporation of Delhi vs. Mohd. Kareem (Supra) and in my view it is distinguishable on facts and has no application to the case in hand. On merits the conviction of the petitioner appears to be well founded. Shri Gulshan Rai contended that the offence would fall under the first proviso to section 16 and, thereforee, the Magistrate was not bound to impose the minimum sentence provided in section 16(1). I am unable to agree with these contention of the learned counsel. The first proviso only covers offences under sub-clause (i) of clause (a) and which is with respect to an article of food, being primary food, which is adulterated due to human agency or is with respect to an article of food which is misbranded within the meaning of sub-clause (x) of clause (ix) of section 2. Sub-clause (k) reads as follows :
'(K)if it is not labelled in accordance with the requirement of this Act or rules made there under ;'
It is clear that the offence with which the petitioner is charged with and of which he has been found guilty does not fall under sub-clause (k). thereforee, the proviso will not be attracted.
(14) For the reasons stated I find no merit in the revision petition and the same is dismissed. The petitioner is on bail and he shail surrender to the bail bonds and serve the unexpired portion of the sentence awarded to him. The courts below shall take necessary steps to take the petitioner into cusdody.