T.U. Mehta, J.
1. This appeal is preferred by the Food Inspector, Ahmedabad Municipal Corporation, against the order of acquittal passed by the City Magistrate. 8th Court, Ahmedabad, in case No. 177 of 1975 of his file.
2. The respondent No. 1 Prakash Vishandas was prosecuted for the offence under Section 16(1)(a) of the Prevention of Food Adulteration Act. 1954 (which is hereinafter referred to as 'the Act'), for adulterating milk with water. On 24th April. 1970 the appellant complainant Purchased some sample milk from the shop of the first respondent intimating him that the said sample milk was purchased for analysis by public Analyst. The sample was taken and sealed in the presence of Panches under regular Panchanama and thereafter on analysis it was found that it contained 5.2% solids non-fat and 4% of fat. It is an admitted Position that this was the sample of cows milk. Now according to rule 5 framed under the Act the cow milk should contain not less than 3.5% of milk fat and not less than 8.5% of milk solids other than milk fat. Since the percentage of milk solids other than milk fat was not conforming to this requirement, in the sample taken by the Food Inspector the respondent No. 1 was prosecuted. In the course of the trial the respondent, request-ed the court to send the sample for analysis by Director, Central Food Laboratory. The report of that officer has been received by the Court which is found at Exh. 2 and which is dated 24-7-1970. According to that report the milk solids other than milk fat were found to be 4% while milk fat was found to be 2.5%. The analysis made by the Public Analyst was on 27th April, 1970. The analysis made by the Director. Central Food Laboratory being on 24-7-1970. the same is found to have been made three months after the analysis made by the Public Analyst. The Public Analyst who has conducted the analysis is one Laxmansingh Himatsingh Vaghela who is examined during the course of the trial and whose deposition is found at Exh. 12 of the record of the case. This deposition as well as the report prepared by him shows that with a view to prevent deterioration of the milk taken in the sample substance known as formalin was added.
3. On this evidence the learned Judge came to the conclusion that in view of the contradiction between the report of the Public Analyst and the report of the Director, Central Food Laboratory, both the reports should be discarded as untrustworthy. It is solely on this ground that the learned Magistrate has acquitted the respondent No 1.
4. The contention which was raised on behalf of the appellant was that the learned Magistrate was in error in coming to a conclusion that the report of the Director, Central Food Laboratory, was not reliable simply because it was found to be in conflict with the report of the Public Analyst. I find good deal of force in this contention, because if the report of the Director, Central Food Laboratory is expected to be in complete harmony with the report of the Public Analyst, there would be no sense in sending the sample again for the analysis of the Director of Central Food Laboratory, Here it should be noted that according to Section 13(3) of the Act, certificate issued by the Director of Central Food Laboratory supersedes the report given by the Public Analyst. It is of course true that on consideration of the facts and circumstances of each case it is always open to the Court to reject the report of the Director. Central Food Laboratory as unreliable or insufficient for basins conviction, but to discard that report simply because the same is inconsistent with the report of the Public Analvst is tantamount to discarding the provisions contained in Section 13 of the Act which contemplate that it is open to the accused or the complainant to make an application to the Court sending part of the sample to the Director of Central Food Laboratory for a certificate. The very fact that, even though the sample has been analysed by the Public Analyst the legislature has contemplated the re-examination of that sample by another authority suggests that the legislature has recognised the possibility of both the reports being contradictory. It is to provide for such a contingency that Sub-section (3) of Section 13 has prescribed that, the certificate issued 3v the Director of the Central Food Laboratory should supersede the report given by the Public Analvst. Since, in the record of the case, there is nothing to show why the certificate of the Director of Central Food Laboratory should be discarded as unreliable I find that, that certificate should prevail. Even otherwise, the report of the public Analyst as well as the certificate of the Director. Central Food Laboratory reveal that the sample taken from the shop of the first respondent was not conforming to the formula of cow's milk given in Rule 5.
5. Under the circumstances I am of the opinion that the learned Magistrate was wrong in acquitting the accused. I find that the prosecution has very satisfactorily proved that the sample of milk taken by the appellant from the shop of the first respondent was adulterated and, therefore, the respondent No. 1 has committed the offence punishable under Section 16(1)(a) of the Act.
6. The only question which now survives for consideration is about the sentence which should be passed for this offence. The proviso attached to Subsection d) of Section 16 says that the Court may for any adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term of less than six months or a fine of less than 1,000 Rupees or of both imprisonment for a term of less than 6 months and a fine of 1.000 Rupees. Looking to the facts of the case. I am of the opinion that this proviso is attracted in this case. The respondent No. 1 is a young man of only 18 years and that is, in my opinion quite adequate reason for awarding the sentence which is less than the minimum prescribed by law. The proviso which is referred to above uses the disjunctive 'or' between the sentence of imprisonment and the sentence of fine and. therefore, either of these two sentences can be passed if facts of the case are covered by this proviso. Looking to the facts of the case I am of the opinion that it does not call for any sentence of imprisonment. In my opinion, sentence of fine of Rs. 200/- would serve the purpose.
7. This appeal is accordingly allowed and the order of acquittal passed by the learned Magistrate is set aside. The respondent No. 1 is convicted for the offence contemplated by Section 16(1)(a) of the Act and for that offence he is sentenced to pay a fine of Rs. 200/-, in default of which he shall undergo a simple imprisonment of one month.