Jagjit Singh, J.
(1) In the Chanakya Cinema building, New Delhi, there is a snack bar. On January 27, 1971 Food Inspector R. C. Kapoor of the New Delhi Municipal Committee took a sample of milk which was being used in the snack bar for preparing tea and coffee to be sold to customers. The milk was represented to be buffalo milk and on a part of the sample being analysed by the Public Analyst was found to be deficient to the extent of 2.4% in milk fat and 0.27% in milk solids not fat. The result of the analysis showed that the milk fat was only 3.6% and the percentage of milk solids not fat as 8.73.
(2) The sample of milk was purchased by Food Inspector Kapoor from Raj Kumar Sharma who, at the time of the sale, was said to be in charge of the snack-bar. On Raj Kumar Sharma being prosecuted for an offence u/s 16 read with section 7 of the Prevention of Food Adulteration Act 1954 he was acquitted by Shri R. D. Aggarwal, Judicial Magistrate First Class, Delhi. The learned Magistrate took the view that Raj Kumar Sharma was only one of the many waiters working in the snack-bar and was not the Manager. It was further held that the various papers which were signed by Raj Kumar Sharma at the time of the taking of the sample were not signed under coercion. The other findings given were that the Food Inspector did not try to call indepen- dent witnesses to be present at the time of the taking of the sample and that it was doubtful whether the milk sold was represented to be buffalow-milk.
(3) Against the order of acquittal, with special leave obtained under section 417(3) of the Code of Criminal Procedure, 1898, the present appeal was filed on behalf of the New Delhi Municipal Committee.
(4) We have very carefully gone through the evidence that was produced in the case and have considered all the submissions that were made on behalf of the appellant and Raj Kumar Sharma the respondent in the case. It seems to us that the learned trial Magistrate failed to consider objectively the evidence in the case with the result that the findings given by him are not sustainable.
(5) At the hearing of the appeal it was not disputed that Food Inspector Kapoor had gone to the snack-bar at about 4.p.m., on January 27,1971, and that in the snack-bar about 10 kilograms of boiled milk had been kept in a utensil (Patila). It is also an admitted fact that on that occasion the respondent was present in the snack-bar. While according to Kapoor the respondent was 'running andmanaging it,'' the version of the respondent himself was that he was one of the many waiters present in the snack-bar.
(6) It is also in the evidence of Kapoor that he tried to secure the presence of some independent witnesses at the time of the taking of the sample. He stated that he contacted the customers in the snack-bar who were taking tea or coffee, then made a request to some persons who were purchasing tickets at the cinema counter and even tried to persuade some near by shopkeepers and passers by but no one agreed to be a witness to the lifting of the sample. He further mentioned that on the main road outside the cinema he happened to notice that S. C. Bhalla, a Sanitary Inspector of the New Delhi Municipal Committee, was passing that way on the scooter and stopped him. On being requested Bhalla agreed to be present at the time of the taking of the sample. He, thereforee, took the sample in the presence of the said Sanitary Inspector.
(7) It is not law, as was pointed out by a Bench, of this Court in the Munnipal Corporation of Delhi v. Nathu Ram 1972 F.A.C. 63 that a Food Inspector must somehow secure the presence of independent witnesses. If he makes honest efforts to call one or more persons to be present at the time of the taking of the sample it would be sufficient compliance with the requirement of sub-section (7) of Section 10 of the Prevention of Food Adulteration Act.
(8) There is nothing to show that in fact no serious efforts were made by Food Inspector Kapoor to secure the attendance of independent witnesses. The learned trial Magistrate was not right in holding that the Food Inspector did not try to call independent witnesses to be present at the time of the teking of the sample.
(9) On the notice given by Food Inspector Kapoor to Raj Kumar Sharma for informing the latter that the sample was being taken, for getting it analysed from the Public Analyst, Raj Kumar Sharma wrote with his own hand? as under :-
'WEuse Buffalo Milk (Boiled) in,, the preparation of Tea and Coffee sold in the snack-bar.'
He also signed and thumb marked The receipt regarding payment of price to him. On the receipt as well he wrote that he had received 'sealed sample bottle of Buffalo Milk (Boiled) and its price Re. 1.00 only.',
(10) The plea taken by Raj Kumar Sharma respondent was that Kapoor had induced and coerced him with the help of Bhalla to do whatever they wanted and had assured him that the proceedings were to be against the proprietor and the managing director of the snack-bar and the writing to be made by him were only to be used in evidence against the proprietor and the managing director. He, however, did not deny that the notice (Exhibit PA) and the receipt (Exhibit PB) were served on him and that he had written the writings thereon that were alleged to be in his hand-writing.
(11) In defense two employees of Chanakya Cinema were produced who deposed about Shri Sehgal being the proprietor of the snack- bar and Shri M. L. Kapoor to be the next man. They further stated that Raj Kumar Sharma was only a waiter in the snack-bar.
(12) The plea that the respondent was only one of the many waiters working in the snackbar and was nobody to sell milk to the Food Inspector was obviously an after thought. Beyond doubt he was acting as the person in charge of the snack-bar and, thereforee, represented himself to be the Manager while signing the notice (Exhibit PA). There could be no question of his being co-erced to write anything. A literate person like him could not be made to write that he was the Manager and had received the price and the sample bottle by merely being told that action would only be taken against the proprietor and the managing director. Admittedly there were many waiters working in the snack-bar and there was no reason why he alone should have been picked up by the Food Inspector for being made a scape-goat. Even according to Bhalla payment of bills was being received by Raj Kumar Sharma and not by the waiters.
(13) In his judgment the learned trial Magistrate laid great stress on the point that efforts were not made to find out as to who was the licensee or the proprietor of the snackbar. The remarks to that effect were hardly of any relevance. The sample of milk having been sold by the respondent so far as he is concerned, it could not make any difference as to who was the proprietor or the licensee of the snack-bar. His liability was as a vender of an adulterated article of food.
(14) It also seems to us that the prosecution was able to fully establish that the milk used in the snack-bar was indicated to be buffalo milk by Raj Kumar Sharma. Both Kapoor and Bhalla deposed to that effect. Kapoor also mentioned that one of the walls of the snack-bar had affixed to it wooden plank and the words 'buffalo's milk used here' were written on that wooden plank. Bhalla similarly stated that it was painted on a wooden fixture affixed on one of the walls of snack-bar that buffalo milk was used. The statements of Kapoor and Bhalla were thus consistent regarding the indication that buffalo milk was used in the snack-bar. The learned Magistrate, however, thought that the statements of these witnesses were discrepant as Kapoor had stated about the indication being painted on a wall of the snack-bar. It appears that there was some misunderstanding in appreciating the evidence by the learned trial Magistrate.
(15) There being indication in the snack-bar that buffalo milk was used, the standard to be applied was as laid down for buffalo milk. According to that standard, as given in item A. 1101. 11 of Appendix B to the Prevention of Food Aduleration Rules, Buffalo milk raw, pasteurised, boiled, flavoured or sterilised should have not less than 6% of milk fat and not less than 9% of milk solids not fat. The sample taken had only 3.6% milk fat and 8.5% of milk solids not fat. It was, thereforee, rightly reported to be adulterated by the Public Analyst, in his report (Exhibit PF).
(16) It was not even the case of Raj Kumar Sharma that he had told Kapoor that the milk was cow milk. In his statement, under section 342 of the Code of Criminal Procedure, 1898, what he had stated was that the 'alleged buffalo milk was known to Food Inspector Mr. Kapoor because he was a frequent visitor of the said snack-bar.' Though the statement made was not very clear but obviously it did not mean that he had told Kapoor that the milk was cow milk.
(17) The acquittal of the respondent was altogether unjustified. We are also of the opinion that it is not a fit case where benefit under the Probation of Offenders Act should be given. Ordinarily persons indulging in sale of adulterated articles of food are not likely to mend their ways unless they are suitably punished.
(18) The appeal, is. thereforee, accepted and by setting aside the order of Shri R. D. Aggarwal dated December 9, 1971, Raj Kumar Sharma is convicted under section 16(1)(a) read with section 7 of the Prevention of Food Adulteration Act and is sentenced to six months rigorous imprisonment and fine of Rs. 1,000.00. In default of the payment of fine, the respondent shall further undergo four months' rigorous imprisonment. Unless the respondent surrenders within three days the Chief Metropolitan Magistrate shall issue nonbailable warrants so that the respondent is taken into custody and is made to serve, in accordance with law, the sentence that has been awarded to him. 7975. RLR. 335 (.B. C. Misra, J.) underlying the rule of rest judicata but on the other hand, the acceptance of such a plea in such circumstances would strike at the very root of the basic conception of the doctrine which required that a party must have at least one fair trial of the issues resulting in a decision by the Court of ultimate appeal as allowed by the law for the time being in force.
(19) The above view of the Full Bench of the Lahore High Court was approved by their Lordships of the Supreme Court in Narhari and others v. Shanker : 1SCR754 .