Jagjit Singh, J.
1. By his judgment dated March 2, 1972, Shri R. D. Aggarwal, Judicial Magistrate 1st Class, acquitted Raghunath, son of Fateh Singh, in a case under Section 16 read with Section 7 of the Prevention of Food Adulteration Act, 1954. Against the order of acquittal this appeal was filed on behalf of the New Delhi Municipal Committee, after obtaining special leave under provisions of Section 417(3) of the Code of Criminal Procedure, 1898.
2. On January 23, 1971, Food Inspectors H. R. Dewan and R. C. Kapoor had, at 7.15 a.m., gone to Malcha Marg Shopping Centre, Chanakyapuri, New Delhi. They saw that Raghunath had milk for sale which was contained in four cans loaded on a cycle and that near shop No. 2/48 he was selling milk to a customer. Food Inspector Dewan disclosed his identity to Raghunath and informed him that he wanted to buy a quantity of milk for purposes of analysis. Further on his enquiry Dewan was said to have been told by Raghunath that he was selling cow milk and the Food Inspector also noticed the words cow milk engraved on the milk cans.
3. According to Food Inspector Dewan before taking the sample of milk from Raghunath he tried to secure the presence of independent witnesses. For that purpose he requested the customer to whom Raghunath had been selling milk and some passers-by but none of them agreed to act as a witness at the time of taking of the sample. Not being able to call one or more independent persons he requested his companion. Food Inspector Kapoor, to be a witness. To this, Kapoor agreed. Then at about 7.30 a.m. Dewan purchased 660 milligrams of milk from Raghunath and paid to him 85 paise as its price.
4. A part of the milk sample was analysed by the Public Analyst for New Delhi Municipal Corporation area on January 25. 1971. It was found to be adulterated due to 3.4 per cent, deficiency in milk fat. The report of the Public Analyst showed that the milk fat was only 0.1 per cent, and milk solids not fat were 8.96 per cent.
5. On the basis of the report of the Public Analyst, prosecution was instituted against Raghunath. During the trial of the case Food Inspectors Dewan and Kapoor supported the prosecution version. Their evidence also shows that the purchase of milk was made after Raghunath had himself thoroughly churned the contents of the milk can from which the sample was taken.
6. During the cross-examination of Dewan and Kapoor it was suggested to them that in fact the sample of milk had not been taken from the accused but a sample of 'seprata' milk was taken from someone else and that the accused had only been asked to be a witness of taking that sample. This suggestion was categorically denied by both of them.
7. When at the close of the prosecution evidence Raghunath was examined, for enabling him to explain the circumstances which had appeared in the evidence against him, he denied that any sample of milk was taken from him or that the notice about taking of the sample for having the same analysed and the receipt regarding payment of price were signed and thumb-marked by him or that the writing on the receipt was in his hand-writing. The only Explanationn given by him was that the witnesses were annoyed with him because his brother Mohinder Singh was falsely prosecuted by them and they had threatened to implicate him.
8. In defense a witness was also examined. He was Mowasi. an agriculturist of Dhundahera (Gurgaon), and his testimony was that the accused was suffering from blood-pressure and was an agriculturist and though he had one buffalo but had never sold milk.
9. It was contended before the learned trial Magistrate that there was no compliance with the provision of Section 10(7) of the Prevention of Food Adulteration Act and even if it could somehow be held that the sample was purchased by the Food Inspector concerned alter observing all the legal formalities still the accused had not committed any offence for the milk sold was skimmed milk and the result of the analysis conformed to the standard prescribed for skimmed milk. Another contention raised was that the Public Analyst did not record this fact in his report that the seal affixed on the sample bottle tallied with the specimen impression of the seal on the form separately sent by the Food Inspector.
10. The second contention was, however, altogether misconceived for the report of the Public Analyst did mention that the sample bottle delivered for analysis was properly sealed and fastened and the seal was unbroken and further the seal affixed on the container of the sample tallied with the specimen impression of the seal separately sent by the Food Inspector and the sample was in a fit condition for analysis. The other contention raised on behalf of the accused before the trial Magistrate could also not be substantiated from any evidence, though surprisingly the learned trial Magistrate accepted what was urged before him to be correct without caring to objectively scrutinise the evidence.
11. Both Dewan and Kapoor de-posed about the efforts made to secure the presence of independent witnesses at the time of the taking of the samples The time being about 7.15 a.m. obviously shops in the market had not been opened. Dewan, thereforee, not only requested the customer to whom milk was being sold by Raghunath but also four men who happened to pass nearby to act as witnesses but they did not agree. It cannot, thereforee, be said that Dewan did not make all reasonable efforts to call one or more persons to be present at the time of taking of the sample. The learned trial Magistrate was, it seems to us. clearly in error In holding that Dewan made no efforts to secure the presence of any independent witnesses. When in spite of making all reasonable efforts it was not found feasible to secure the presence of one or more independent witnesses, the respondent can have no genuine grievance that the provisions of Section 10(7) of the Prevention of Food Adulteration Act were not complied with. As was pointed out by a Bench of this Court in Municipal Corporation of Delhi v. Nathu Ram 1972 FAC 63 (Delhi) it is sufficient compliance with the provisions of Section 10(7) of the. Prevention of Food Adulteration Act if honest efforts are made by a Food Inspector to call one or more witnesses to be present at the time of taking of the samples as 'it could not be the intention of the legislature that somehow or the other he must succeed in getting such witnesses. and that without them he could not exercise his powers at all.'
12. The learned trial Magistrate was also wrong in taking the view, which was not based on any evidence, that the Food Inspector who took the sample might have been told by the accused 'that it was skimmed milk'. The accused never took any such plea. On the contrary Food Inspector Dewan had deposed that on his inquiry the accused had told him that he was selling cow milk and had also pointed out to him the engraved indications on the milk cans. This statement of Dewan was fully corroborated by the testimony of Food Inspector Kapoor.
13. When the indications on the milk cans were that these contained cow milk and the respondent had himself mentioned before the two Food Inspectors that he was selling cow milk, by no stretch of imagination it could be inferred that only skimmed milk was offered for sale and because the result of the analysis conformed to the standard prescribed for skimmed milk so the article sold was not adulterated. The milk was being sold as cow milk and, thereforee, in determining whether or not it was adulterated the results obtained by analysis had to be compared with the standard laid down for cow milk. As it only contained 0.1 per cent, fat as against the prescribed minimum requirement of 3.5 per cent, milk fat, the sample was rightly reported by the Public Analyst to be adulterated.
14. Thus the respondent was guilty of selling milk which was adulterated and is liable to be punished under Section 16(1)(a) read with Section 7 of the Prevention of Food Adulteration Act. On his behalf, however, a submission was made by his learned Counsel that he being now about 59 years of age and having given up the profession of selling milk, it would be appropriate to bind him down on probation under Section 4 of the Probation of Offenders Act, 1958. We are, however, unable to agree. There is nothing to show that the respondent is no longer selling milk. In his defense he had produced one witness who had stated that the respondent was an agriculturist and never sold milk. That was evidently wrong for he was found selling milk in the Shopping Centre, Chanakyapuri, and had four cans of milk for sale which were being carried on a cycle.
15. Though the milk which was being sold by the respondent was supposed to be cow milk but it contained practically no fat. A person indulging in that type of adulteration is not likely to mend his ways unless he is suitably punished. In our opinion this is not such en exceptional and rare case where in spite of the accused being found guilty of selling an adulterated article of food he may be given benefit under the Probation of Offenders Act.
16. The appeal is, thereforee, accepted. The order of acquittal dated March, 2, 1972, is set aside and Raghunath respondent is convicted for an offence 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 a fine of Rupees 1,500/-. In default of the payment of fine he shall further undergo four months' rigorous imprisonment. The Chief Metropolitan Magistrate shall issue non-bailable warrants against the respondent so that he is taken into custody and is made to serve, in accordance with law. the sentence which has been awarded to him.