F.S. Gill, J.
(1) On 19.7.73, appellant Ram Kartar was driving a truck with 20 milk cans. 4 Food Inspectors took 4 samples from 4 milk cans. Driver on enquiry told Inspectors that Dildar Ahmed owned the truck and the milk. Both were prosecuted on the Sample being found adulterated and were convicted. Their first appeals were dismissed and they moved High Court with the grievance that is new Cr. P. C, 1973, had come into force they were not heard before sentence. Plea was negatived as prosecution had begun under old Act. After narrating above facts. Judgment para 15 onwards is :-
(2) Now I come to the merits of the present case. First of all I will take up the case of Dildar Ahmed. Admittedly, he was not present at the time the samples were taken into possession. The prosecution case is that he was the owner of the truck in which 18 or more cans containing cow's milk were being carried. The learned counsel for the petitioners has submitted that there is no direct evidence to show that the milk, which was being taken for sale by the other petitioner, belonged to Dildar Ahmad. The only evidence is that the co-accused Ram Kartar had stated to S. B. Sharma, P. W, 3 that the milk belonged to Dildar Ahmad and that he was working as a driver only.
(3) Shri B. T. Singh, the learned counsel for the Corporation, has also referred to the statement of V. B. Sharma, P. W. 8, who has deposed that Dildar Ahmad had been supplying milk to Attar Pal and Chhida Mal. Both these persons had not been examined by the prosecution. So the statement of V. B. Sharma cannot be taken in evidence, being inadmissible.
(4) The statement made by Ram Kartar, coaccused, before Food Inspector cannot also be taken in evidence in view of section 30 of the Evidence Act. Obviously it is a confessional statement. Ram Kartar had tried to absolve himself of the criminal liability and, thereforee, the confessional statement of this co-accused has become inadmissible for being used against the petitioner. In the instant case, Ram Kartar did not state that the milk was adulterated. So the statement made by him inculpating Dildar Ahmad becomes inadmissible in evidence and, thereforee, has to be discarded.
(5) There is no other evidence to incriminate Dildar Ahmad petitioner. His conviction and sentence, thereforee, cannot be sustained.
(6) As regards Ram Kartar, the milk samples had been purchased from him by all the four Food Inspectors. They had paid the price thereforee. The samples had been found to be adulterated by the Public Analyst. This evidence is unimpeachable. The only ground taken by this petitioner is that he was a mere driver and, thereforee, cannot be fastened with any criminal liability. R. P. Singh, Food Inspector, P. W. 4 has stated that Ram Kartar is a salesman and that he had seen him selling milk. To the same effect is the statement of M. M. Gupta, Food Inspector (P. W. 5) This witness has deposed that Ram Kartar is a saleman-cum-driver. The samples in the case had been taken from this accused alone. There is absolutely no reason to differ from the unanimous findings of the two Courts below. It is pertinent to observe that Ram Kartar had not produced his license or even the log book where an entry could be seen that the was taking the milk cans belonging to Dildar Ahmad. So the charge against Ram Kartar petitioner stands fully substantiated.
(7) While considering the sentence, I find that all the four samples of cow's milk taken from the petitioner were found to be adulterated. I feel that it will be misplaced sympathy if any leniency is shown. I, thereforee, see no reason to interfere with the sentence awarded by the trial Court and maintained by the learned Additional Sessions Judge.