Guman Mal Lodha, J.
1. This is a criminal appeal under Section 378(4), Cr. P.C. against the order of acquittal passed by the Munsif & Judicial Magistrate. First Class, Gangapur City, dated the 31st Jan., 1976, acquitting the respondent-accused for the offence under Section 7/16 of the Prevention of Food Adulteration Act.
2. The facts as alleged by the complainant are as under:
On 6-5-1974 the Food Inspector of the appellant-Board took sample of milk from the hotel of the respondent-accused and after preparing the necessary documents, sent the sample to the Chief Public Analyst, Rajasthan and according to the report of the Chief Public Analyst, the sample was adulterated as there was 33% added water.
3. After receipt of the report, the complaint was filed by the appellant who is a public servant against the respondent, The respondent pleaded that the milk was not meant for sale as milk, but was kept in the hotel for preparation of tea only.
4. During the course of the trial, the Food Inspector as well as the two motbirs were examined. The two motbirs turned hostile and were cross-examined by the Asstt. Public Prosecutor.
5. The Munsif & Judicial Magistrate, First Class, Gangapur City, despite the fact that the two motbir witnesses have turned hostile, relied upon their evidence and accepted the plea put forward by the witnesses and acquitted the accused, vide his order/judgment dated the 31st Jan., 1975.
6. The learned Counsel for the appellant has made the following submissions:
(i) That the. order of acquittal recorded by the learned trial Magistrate is contrary to law and is manifestly erroneous. The Food Inspector who had appeared as a witness has categorically stated that the milk was meant for sale and, that he had purchased it from the respondent and paid the amount. The respondent did not raise any objection at the time of taking the sample by the Food Inspector that the same was meant for tea only, On the other hand, he accepted the price of the milk purchased of the Food Inspector for the purpose of taking sample.
(ii) that it has been conclusively determined by the apex court of India in Mahommed Yamin v. State of Uttar Pradesh : 1972CriLJ1198 , that once an article of food is sold to the Food Inspector, the provisions of Section 16 are immediately attracted.
(iii) that in this case, the trial Magistrate seriously erred in relying upon the testimony of the motbir witnesses who has turned hostile. The evidence of Motbirs could not be taken to substantiate the plea put forward by the respondent.
According to the report of the Chief Public Analyst, the fat contents were 2.5% and the solid non fat contents were 6.04%. The Chief Public Analyst further opined that it contained 33'% of added water and abstraction of about 22% of original fat therefore, it is quite evident that the respondent deliberately indulged in the act of adulteration.
(iv) that in view of the settled position of law it is quite evident that the order of acquittal recorded by the trial Magistrate is highly improper and calls for interference and the respondent deserves to be adequately punished.
7. No one has appeared to oppose this appeal and represent the respondent.
8. The important point, which emerges for consideration is, whether there was a sale of milk because the adulteration is proved beyond all reasonable doubt on account of the report of the Public Analyst and. further because the sample was taken properly in accordance with law and no infirmity has been found or contended here in the process of taking of sample or getting it examined by the Public Analyst. It is not necessary to discuss all those facts and details, again it is sufficient to mention that I am in agreement with the. finding of the trial court that the sample was properly taken by the Food Inspector, S.L. Santoshi, and that it has been found to be adulterated.
9. S. L. Santoshi, the Food Inspector, is the most important witness in this case. According to him, the accused was having a 'tanki' of milk for sale at his shop. He served a notice, Ex, P. 1, for purchase of milk and purchased it, by paying Rs. 1.25/-, the receipt of which is Ex. P. 2, The respondent sold the milk to the Food Inspector and signed the receipt without any demur or protest. The respondent accepted one bottle of sample duly sealed and gave receipt and signed for its receipt, Ex. P. 1. The Food Inspector specifically denied that the respondent was not selling the milk, In cross-examination, he asserted that the accused never told him that he is not dealing in milk and has been only selling tea. The milk from which he took the sample was cold and it had not gone under heating process, The Food Inspector has categorically denied the suggestion in the cross-examination, that the milk was only for the preparation of the tea and with that end in view the water has been mixed in it.
10. I have carefully read over the statement of the Food Inspector as there was no one to represent the respondent. I have also read over the statements of Ramcharan and Ram Bharosey. It is significant to note that both these witnesses have been declared hostile and obviously, they were inclined to support the accused by going to any length. In view of this, the learned Magistrate was not justified in placing reliance upon them for holding, that the defence of the respondent is corroborated by them.
11. The learned Magistrate has relied upon the statements of motbirs on the ground that they were employees of the Municipal Board and they were not 'supposed to support the respondent. I am not impressed by this line of reasoning. A witness who goes against his earlier version and decides to support as accused betraying truth and respect for oath, is not to be treated as a truthful wit-ness. Once his testimony is tainted it is immaterial, what are the reasons for it. It is well known that the reasons for becoming hostile need not be restricted to relationship only and it is difficult for the court to -analyse the reasons.
12. It may be mentioned that these witnesses signed the documents prepared and never insisted at that time that the record must be made that the milk is for being used in tea only and not for sale as milk.
13. It is also important to notice that once a purchase is made by the Food Inspector of a foodstuff including the milk by giving notice and taking sample after giving an amount, it becomes a sale as held by their Lordships of the Supreme Court in Mohd. Yamin v. State of Uttar Pradesh 1972 Cri LJ 1198 (supra). The relevant observations of their Lordships of the Supreme Court read as under:
We see no reason to think that the finding was wrong. But assuming that the finding was wrong and that the appellant kept the Shakkar not for sale but for manufacturing Rab out of it what follows? If Shakkar is an article-of food, it does not matter whether the appellant kept it for sale, or for manufacturing Rab out of it, provided the appellant has sold it. And a sale to the Food Inspector is a sale for the purpose of Section 16 of the Act. (para 9)
The Court held, inter alia, that sale to a Food Inspector is a sale for The purpose of Section 16 of the Act, that the article of food sold to the Food Inspector need not have been taken from a larger quantity kept for sale, and that the person by whom the article of food was sold to the Inspector need not be a dealer as such in the article. (Para 9)
14. It is not without significance that the respondent sold the milk and accepted its price without any demur or protest. If he has any grievance he could have immediately moved an application in the Municipal Board or the Health Department. I am, therefore, clearly of the opinion that the defence of the accused is an afterthought one and in order to get supports for his defence, the witnesses have turned hostile.
15. In my view, the learned Magistrate should not have placed reliance upon the hostile witnesses for taking support of their testimony to hold that the defence of the accused is proved.
16. It is also not without significance that the report of the Chief Public Analyst clearly mentions that 20% of the original fat has been abstracted. This feature of the accused further shows that the adulteration was of- a 'dual' nature. Firstly, 33% of the water was added and, secondly, 20% of the original fat was abstracted. The report of the Public Analyst, Rajasthan, Jaipur, (Ex. P. 5) is reproduced hereunder for ready reference:
Form III Date of examination 11-5-74 State Central Public Health Laboratory, Rajasthan Report No. L, S./323/6540/Jaipur, dated 27-5-1974.
I hereby certify that I. A. Bhattacharya Public Analyst for Rajasthan, Jaipur duly appointed under provisions of the Prevention of Food Adulteration Act, 1954, received on the 8th day of May, 1974, from the Food Inspector M. B Gangapur City a sample of Milk S. No. RRo61/74 collected from Sh. Om Prakash s/o Rameswar on 6-5-74 at Gangapur City, for analysis, properly sealed and fastened, and I found the seal intact and unbroken. The seal fixed on the container of the sample tallied with specimen impression of the seal separately sent by the Food Inspector and the sample was in a condition fit for analysis.
I further certify that I have analysed the aforementioned sample and declare the result of the analysis to be as follows:
Fat contents ... 2.7%Solids non-fat ... 6.04%Cane sugar and starch ... Nil.and am of opinion that the sample is adulterated by reason of its containing about 33% added water and abstraction of about 30% of original fat.
Signed this 25lh day of May, 1974.
Address:- The Food Inspector Sh. S. L, Santoshi, M. B. Gangapur City.
17. As discussed above, I am convinced on the basis of the testimony of the Food Inspector, S. L. Santoshi and documents, Ex. P. 1 & Ex, P. 2, which have been signed not only by the Food Inspector but also by the accused and, Ex. P. 2 having been signed by other two witnesses, namely, Ram Bharosey and Ram Charan also, that the accused was dealing in milk and he conducted the sale of milk. I am further convinced that as evident by Ex. P. 5 the milk was adulterated not only by mixture of water, but further by abstraction of 20% of original fat content. The abstraction of original fat content of 20% is not permissible, even if the accused wanted to use a part of it for preparation of tea although I have rejected the theory of the defence of the accused, on this point.
18. I have already extracted the dictum of law laid down by the Apex Court in Mohd. Yamin v. State of U.P. 1972 Cri LJ 1198 (SC) (supra), wherein it has been held that sale to a Food Inspector is sufficient and it is not necessary to prove that the accused was selling that article to other consumer at the time of sale. In that decision earlier decision of Supreme Court in Food Inspector Calicut, Corporation v. Cherukattil : 1971CriLJ1277 was referred. In that case, their Lordships of the Supreme Court had clearly held that sale of a sample of food article to Food Inspector amounts to a sale as defined in Section 2(xiii) of the Act. It was further held that proof of dealership is not necessary. The relevant observations which are more useful and pertinent for taking guidance in the instant case are contained in head notes (A) & (B) and in paras 12, 15, 23, 25 & 26 of that judgment, which again, was based on the decision of Mangaldas Raghavji v. State of Maharashtra : 1966CriLJ106 . Head Notes (A) & (B) read as under:
(A) Prevention of Food Adulteration Act (1954), Section 2(xiii) - Sale - Definition - Sale of a sample of a food article to Food Inspector amounts to a 'sale' as defined in Section 2(xiii).
(B) Prevention of Food Adulteration Act (1954), Section 7 - Conviction - Proof of dealership not necessary - Once a person effects a sale as defined under the Act of an article of food, which is found to be adulterated, he is punishable under Section 16(1)(a)(i) read with Section 7. -. It is not necessary to establish further that the person is a dealer in that, article as such - (Ibid, Section 16(1)(a)(1))
19. It would be pertinent to notice here the observations of the Supreme Court in the decisions of State of Kerala v. Alasserry Mohammed AIR 1973 SC 933 : 1978 Cri LJ 925 and Kassim Kunju Pookunju v. K. K. RamakrUhna Pillai 1969 Cri App R (SC) 15.
20. In Kassim Kunju's case (supra), the following principles were laid down by their Lordships of the Supreme Court-
Under Rule 7, the Public Analyst has to compare the seal on the container and the outer cover with the specimen impression received separately on receipt of the packet containing the sample for the analysis.
The High Court considered that it must be presumed that the Public Analyst acted in accordance with the Rules and he must have compared the specimen impression received by him with the seal on the container.
21. In Alassery Mohammed's case 1978 Cri LJ 925 (supra) their Lordships of the Supreme Court also observed as under:
Rule 22 is directory and not mandatory, applying the salutary principles of interpretation of statutes, the use of the word, 'shall' in Sub-section (3) of Section 11 and in Section 22 indicates on its face that an imperative duty has been cast upon the Food Inspector to send a sample in accordance with the prescribed Rules. But the mere use of the word, 'shall' does not invariably lead to this result. The whole purpose sad the context of the provisions has to be kept in view for deciding the issue. 'The whole object of Section 11 and Rule 22 is to find out by a correct analysis, subject to further verifications and tests by the Director of the Central laboratory or otherwise as to whether the sample of food is adulterated or not. If the quantity sent to the Public Analyst, even though it is less than that prescribed, is sufficient and enables the Public Analyst to make a correct analysis then merely because the quantity sent was not in strict compliance with the Rule will not result in the nullification of the report and obliterate its evidentiary value. If the quantity sent is less, it is for the Public Analyst to see whether it is sufficient for his analysis or not. If he finds it insufficient, there is an end of the matter. If, however, he finds it sufficient, but due to one reason or the other, either because of further test or otherwise, it is shown that the report of the Public Analyst based upon the short quantity sent to him is not trustworthy or beyond doubt, the case may fail. In other words, if the object is frustrated by the sending of the short quantity by the Food Inspector to the Public Analyst, it is obvious that the case may end in acquittal. 'But if the object is not frustrated and is squarely and justifiably achieved without any shadow of doubt, then it will endanger public health to acquit offenders upon technical grounds which have no substance. 'The fact that the rule is directory and not mandatory does not, however, mean that it is open to the Food Inspector to violate the Rule. A Food Inspector should always be cautious in complying with the rules as far as possible and should not send a lesser quantity of sample than prescribed to the Public Analyst unless there be a sufficient reason for doing so.
22. Food Adulteration is a 'social crime' which endangers the health of the society at large. Such economic offences deserve deterrent punishment and any leniency in this respect or effort to acquit the accused, deserves outright rejection. If the offence would not have of the year 1974 and would have been of recent origin, I would have certainly punished the accused with imprisonment of few years but since much time has passed, I am inclined to punish him with a sentence of only six months rigorous imprisonment and a fine of Rupees 1,000/- and in default of payment of fine, the accused would further undergo one month's rigorous imprisonment,
23. The result is, that the appeal is accepted. The acquittal of the respondent-accused by the learned magistrate is set aside. Om. Prakash son of Rameshwar Mahajan, r/o Khari Bazar, Gangapur City (Sawai Madhopur district) is convicted for the offence under Section 7/16 of the Prevention of Food Adulteration Act and, is sentenced to undergo six months' rigorous imprisonment with a fine of Rs. 1000/- and, in default of payment of fine, one months' rigorous imprisonment, further, is awarded. The trial Court would now take steps to arrest the accused and send him to jail for undergoing the above sentence.
24. Before parting with this case, it must be made clear that offence of adulteration in milk or other food stuffs deserves exemplary deterrent punishment of few years. Such type of observations have been made by me earlier in Cri. Appeal No. 813 of 1975. Nagar Parishad Alwar v. Ganga Lahori decided on February 11, 1982, which are as under:
Offence of adulteration in Chillies or other food stuffs deserves exemplary deterrent, severe punishment of few years, at least, so that not only an accused is properly punished, other citizens also realise that law would come with heavy hand and would not condone such adulterations by lenient and liberal punishments. However, in the instant case, I am making exception by punishing the accused for the exceptional reasons that this appeal against acquittal relates to an offence of the year 1972, and one decade has passed in between. During this one decade, the accused must have remained constantly under the fear and apprehension of punishment in a criminal trial. But even then, letting an accused only on sentence of a fine would have put premium on his social criminal activity, because an adulterater who earns lot of money by such methods, can always afford to pay a small part of it if he can go scot free and then again, start the same nefarious activity. It should not be forgotten that in a given case, a murderer commits the murder of only one person but an adulterater by such sweet poisoning of adulterated food stuffs impairs the health of thousands and lacs in the society and some times, that impairment results in creating of handicap in children and in a remote case, there may be loss of life also. The trial Magistrates should always keep themselves aware of the serious dimensions in future and once, the offence is proved on merits, then simply on technicalities of no substance, misplaced acquittals or releasing such offenders on probation or nominal sentence of fine would result only in abatements of such crimes, in a literal sense, which they should always avoid. It is desired that in appropriate cases, deterrent exemplary punishment should be given and that would be in consonance with intention and object of this legislation.
25. The net result is, that this appeal as accepted as indicated above.