Jagjit Singh, J.
(1) On a complaint filed by the Assistant Municipal Prosecutor against. Notam Dass the latter was tried for an offonce under section 7 read with section 16 of the Prevention of Food Adulteration Act, 1954. The allegations against him were that on April 1966, he was selling in Chowk Kishan.Ganj. opposite, to shop No, 4 150, milk which was indicated to be cow's milk. A sampte of the milk was taken by Vidya Sagar, Food Inspector, and on getting it ana lysed from the Public Analyst it was found to be adulterated.
(2) The learned trial Magistrate, however, acquitted the accused on two grounds. It was remarked that there was-no public witness to support the case for the prosecution and secondly that the accused had not admitted the execution of any of the documents, alleged to have been prepared at the time of the taking of the sample. Vidya Sagar had, accompanied by another Food Inspector named S, P. Jain, gone to Chowk Kishan Ganj on April 14, 1966 at about 11 a.m. when Notam Dass respondent was found selling milk. During the trial the evidence given by Vidya Sagar was that he had requested five or seven persons who had assembled at the place where milk was being sold by Notam Dass to be witnesses to the taking of the simple but none of them agreed. He further deposed that he even went to the neighbouring shopkeepers but they as well refused to be witnesses. According to him it was thereater that 660 millilitres of milk were purchased by him from Notam Dass on payment of 50 paise and on one part of that sample being sent for analysis to the Public Analyst ft was found to be adulterated. The result of the analysis by the Public Analyst was that as follows:- Fat-0.1% - Non-fatty solids:--9.9%.
(3) The evidence of Vidya Sagar about his making efforts to secure the presence of independent persons to be present at the time of the taking of the sample even finds support from the testimony of Jain. It was mentioned by .lain that Vidya Sagar had gone to the neighbouring shopkepeers for calling witnesses.
3. Where a, Food Inspector calls the neighbouring shop-keepers to witness the taking of a sample of an article of food but no such shopkeeper may be willing to co-operate the prosecution is relieved of its obligation to cite independent witnesses, as was observed by their lordships of the Supreme Court in a recent case, .Shri Ram Lubhaya v. Municipal Corporation of Delhi and another.
(4) The evidence in the present case clearly shows that the Food Inspector did call the neighbouring shopkeepers to witness the taking of the sample but no one was willing to co operate. In these circumstances the learned trial Magistrate was not justified in acquitting the the accused merely because no public witness had been examined to support the prosecution case.
(5) The other ground relied upon by the learned trial Magistrate was equally untenable. An accused person cannot .escape liability by merely denying the factum of taking the samplewhen from the evidence on record the taking of the sample of an article of food from him, which on analysis is found to be adulterated, is established by the prosecution evidence beyond any doubt. Food inspector Vidya Sagar had given a notice (Exhibit P B).to the respondent by which he was informed that the sample of milk was taken to have the same analysed from the Public Analyst of the Municipal , of Delhi. That notice was signed and thumb-marked, by the respondent. The respondent also signed and thumb-marked aad receipt (Exhibit P. A.) regarding payment of price and wrote certain wordsib it which were to the effect that he bad-received 5()paise on account of the price of milk. The report regarding the taking of the sample (Exhibit P.C.) was as well signed and thumb-marked by the respondent and also bears the signatures of Vidya Sagar, S. P. Jain and one Daya Kishan. The last named person is an Assistant Sanitary Inspector of the Municipal Corporation of Delhi and as stated by him happened to meet Vidya Sagar at the time of the taking of the sample god then attested the report regarding the taking of the sample.
(6) The respondent examined one Babu Singh Bedi as a defense witness. That witness stated that Notam Dass had remained with him on April 14, 1966 from the time of sun rise till.about 12 O'clock in the noon. It appears that either that witness intentionally gave false evidence or .made a genuine mistake about the time till when Notam Dass was with him. In any event there cannot be the least doubt that Notam Dass was selling milk at about 11a.m.on April. 14,1966 when asample of the milk was taken by Food Inspector Vidya Sagar and certain documents were prepared at the time of taking the sample. All those documents bear signatures and thumb-impressions of the respondent. If actually no sample had been taken from him it was the easiest thing for him to prove that the thumb-impressions on the various memos (Exhibits Pa, Pb and PC) were not his.
(7) There are no cogent seasons to disbelieve the evidence of Vidya Sagar, S. P. Jain and Daya Kishan. They cannot bs disbelieved merely because they are officials of the Municipal Corporation of Delhi.
(8) Thus the evidence in the case fully establishes that Food Inspector Vidya Sagar had purchased milk from Notam Dass on April 14, 1966 which was indicated to be cow's milk, but. which on analysis was found to be adulterated. Against the minimum prescribed standard for milk fat of 3.5% in cow's milk the fat was only 6.1%.. Non-fatty solids were, however, 9.9% as-against the minimum prescribed standard of 8.5%. The sample of milk can, thereforee, be regarded to bs adulterated under clause (1) of the definition, of the expression 'adulterated' as given insection 2(i) of the Prevention of Food Adulteration Act.
(9) We have no hesitation in holding that the acquittal of the respondent was altogether unjustified- as he had committed the offence of sale of adulterated milk. However, as teh offence is and old one the order of acquittal had been paused more than six years ago and the Droviso to section 16 of the Prvention of Food, Adulteration Act is applicable, we consider that, at this stage a sentence of fine would meet the ends of justice.
(10) We accordingly accept the appeal and by setting aside the order of acquittal convict the respondent for an offence under section 7 read with section 16 of the Prevention of Food Adulteration Act and sentence him to fine of Rs. 1,500.00 and indefault of the payment of fine to four months rigorous imprisonment. We allow the respondent fifteen days time to pay the tine. If the fine is not paid in the court of the Chief Metropolitan Magistrate, Delhi, in that period the Chief Metropolitan Magistrate shall issue non-bailable warrants for the arrest of the respondent so that he is taken into custody to serve inaccordance with law the sentence for non-payment of fine. A copy of this order shall be sent. to the Chief Metropolitan Magistrate for necessary action.