M.C. Jain, J.
1. This is an appeal by the Municipai Council, Sri Ganganagar, against the judgment of Magistrate, First Class, Sri Ganganagar dated 9-1 1974, whereby the respondent was acquitted of the off nee Under Section 7/16 of the Prevention of Food Adulteration Act, 1954.
2. The prosecution case, in brief, is that the Food Inspector Veer Singh (P.W. 1) checked the respondent, while he was proceeding on a cycle with a drum containing about 9 kilo of milk on 5-8-1968 at about 9, am. He had a licence for vending milk. He purchased 660 ml. milk for a sum of 0.75 p. vide receipt Ex. P/1 for analysis. The milk purchased was put into three clean & dry bottles in equal quantity and 18 drops of formalin were put into each of the bottles and thereafter the bottles were duly packed and sealed. This was all done in the presence of 'motbirs' Harjitsingh and Satyapal. In this connection memo Ex. P/2 was prepared at the time of the purchase of the sample. Notice in Form VI Ex. P/3 was given. One of the bottles of the sample was delivered to the accused and the other was sent to the Public Analyst for analysis. Specimen seal impression along with the forwarding letter, were separately sent to the Public Analyst through registered post. Thereafter the report of the Public Analyst Ex. P/7 was received and it was found that the sample was adulterated as it did not conform a the prescribed standard of purity. The fat c intents were found upto 3% and the solid non-fat contents were found upto 4.8% Bo'h were less to the prescribed standard, that is, 3.5% 'at contents and 8.5% solid nonfat contents. Thereafter he obtained the written consent for prosecution from the Offg. Administrator Shri Shiv Dayal Sardiwal Then a complaint was presented by him in the Court of Magistrate, First Class, Sri Ganganagar. The prosecution in this case examined Shri Veer Singh, Food Inspector and no other evidence was recorded. The accused denied the prosecution case, but no evidence was led by him in defence. The learned Magistrate, after hearing the parties, acquitted the accused on the following grounds:
1. that the prosecution did not examine any independent witness and he does not consider it proper to convict the accused on the sole testimony of the Food Inspector;
2. that the consent Ex. P/8 does not appear to be valid, as the prosecution has not adduced any evidence that Shri Sardiwal was the Administrator of the Municipal Council; and
3. that there is manipulation in the figures of '18' drops of formalin, as stated in Ex. P/2, so it cannot be found as to how many drops of formalin were put into the bottles.
Dissatisfied with the judgment of acquittal the Municipal Council, Sri Ganganagar, has preferred this appeal.
3. I have heard the learned Counsel for the Municipal Council and learned Counsel for the accused-respondent and also perused the record of the case.
4. The learned Counsel for the appellant submitted that the reasons on which the learned Counsel has recorded the order of acquittal ate unfounded. His first contention is that Ex. P/8 consent is proved by the statement of Food Inspector and his authority was not challenged in the Court below. He also urged that Shri Sardiwal was appointed as Administrator vide notification No. F1(75) LSG/67/Lit dated 19-9-68 placed on the record of S.B Criminal Appeal No 410 of 1974 - Municipal Council, Sri Ganganagar v. Shyam Sunder and Anr. Shri Sardiwal signed the consent on 19-10-1968.
5. The counsel for the respondent, on the other hand, submitted that the copy of the notification ought to have been produced in this case in the Court below. In the absence of that it cannot be found that Shri Sardiwal was competent to give consent for prosecution,
6. It is true that copy of the notification should have been produced in this case, but it appears that the authority of Shri Sardiwal was not challenged at any stage in the court below. If the authority would have been challenged, the Municipal Council would have filed a copy of the notification. Rather, the statement of the Food Inspector stands unrequited and uncrossed on the point of competence of Shri Sardiwal to issue the consent in his capacity as Administrator. Besides that, in my opinion, presumption can also be drawn with regard to the regularity of Ex. P/8 as was urged by the learned Counsel for the appellant. Thus, the order of acquittal can not be sustained on this ground.
7. It is submitted by the learned Counsel for the appellant that no reasons have been assigned as to why the statement of Shri Veer Singh, Food Inspector, cannot be believed, and it was wrong on the part of the learned Magistrate to observe that the conviction cannot be recorded on the sole testimony of the Food Inspector in the absence of production of any independent witness. He pointed out that the summons of Satyapal and Harjit Singh were returned unserved and on the objection by the accused-respondent their evidence was closed. The Municipal Council did not give up these witnesses. He urged that according to the statement of the Food Inspector compliance of Section 10(7) stands proved and examination of the 'motbirs' in court could be possible in case their evidence would not have been closed.
8. The learned Counsel for the respondent could not point out as to how the statement of Veer Singh, Food Inspector, cannot be made the basis of conviction. I find the testimony of Shri. Veer Singh convincing and reliable and as per his statement the witnesses were called at the time of taking the sample and completing necessary formalities. In Khaju v. The State 1971 R.L.W. 409 it was observed that failure to call 'motbirs' in evidence dose not vitiate the trial. In Khaju's case 'motbirs' were not examined and the testimony of the Food Inspector alone was believed According to the Food Inspector the two 'motbirs' were associated with the proceedings and their signatures were obtained. In this connection it was observed that the trial court was not wrong in relying upon the sole testimony of the Food Inspector and it passes beyond comprehension that the trial court would be inclined to distrust the evidence of the Food Inspector for no valid reason and that there is nothing inherently improbable in the Food Inspector's statement which would persuade the Court to reject his testimony. It was further observed that it is not the have that a fact cannot be proved by the evidence of a single witness If there is nothing intrinsically unbelievable in the evidence of a particular witness, the court can base its conclusion upon his statement and find the facts deposed by him as proved.
9. Reference in this connection may also be made to a decision of the Supreme Court in Babulal Hargovind v. State of Gujarat : 1971CriLJ1445 & Prem Billab & mother v. The State Lelhi Admn : 1977CriLJ12 .
10. In view of the position of law, as laid down in these judgments, in my opinion, the credible testimony of the Food Inspector can be made the basis of conviction and the non-production of the 'motbirs' does not in any way affect the prosecution case.
11. The third ground on which the acquittal was recorded appear to be quite flimsy. It may be stated that originally in the printed form of Ex. P/2 there were printed figures '15' at the time of preparation of Ex. P/2, in place of the figures '16' the Scares '18' were written. Then there is the statement of the: Food Inspector to the effect that he put 13 drops of formalin in each bottle. No question had been put to the Food Inspector, which may throw any doubt on the fact of putting 18 drops of formalin in each bottle. Even if it be taken that oily 16 drop) of formalin were put. still it cannot be sail that the sample was rendered unit for analysis. The Public Analyst has found the sample fit for analysis. Tans on this ground as well the order of acquittal cannot be sustained.
12. No other point has been pressed before me to sustain the order of acquit tat.
13. The learned Counsel for the accused-respondent has submitted that more than a decade has passed so it would not be proper that the accused may be awarded any sentence. He urged that looking to the time factor the accused may be given the benefit of probation.
14. Normally in food adulteration cases benefit of probation is not given, as adulteration is adopted as a way of life with profit motive by the adulterators and the adulteration constitutes a regular menace to the public health and sentences should have been awarded which may serve as lessons to the adulterators, but considering the time factor I am inclined to give the benefit of probation. The time factor has been considered for this purpose in some decisions. Reference maybe made to Municipal Council, Alwar v. Bhulu Ram 1975 WLN (UC) 415 and Ghanshyam Das v. Municipal Corporation of Delhi : AIR1975SC845 . In the Supreme Court case the matter pertained to the year 1965 and the accused had to fare protracted criminal proceedings. It was observed that it would not be proper to send the appellant to jail and the benefit of probation was given for the offence Under Section 7/16 of the Prevention of Food Adulteration Act, 1954.
15. In the result I accept the appeal set aside the acquittal of the accused respondent Deshraj and convict him of the offence under Section 7/16 of the Prevention of Food Adulteration Act, 1954, and instead of sending him to jail by awarding sentence, I consider it expedient to release him on probation of good conduct and I direct that the accused-respondent Deshraj shall be so released on his executing a personal bond for a sum of Rs. 3, 000/- (three thousand) with one surety in the like amount to appear and receive sentence whenever he is called upon to do so during a period of three years and in the man time to keep peace and be of good behaviour. He shall submit the requisite bonds within two months from today before the Chief Judicial Magistrate, Sri Ganganagar.