M.L. Jain, J.
1. This is an appeal by the Municipal Council, Alwar, against judgment of the Magistrate First Class, Alwar dated 16-11-70 by which he acquitted the accused Bhulu Ram Meena of Alwar of the offence under Section 16 of the Prevention of Food Adulteration Act, 1954.
2. I have heard arguments and perused the record. Briefly ststed, the facts of the prosecution case are that on 31-7-68, Food Inspector Shambhu Datt at about 8 00 p.m. inspected the shop of the accused Bhulu Ram in Malakhera Darwaja, Alwar. He was found selling cow's milk and a sample thereof was purchased by the said Inspector. Upon examination by the Public Health Laboratory, Alwar the said sample was found to contain 5.8% fat and 7.2% solid non fat. The report (Ex. P/3) of the public analyst is dated 9.8.68 in which he bad said that the sample of cow milk is adulterated as it contained about 15% of added water. The food Inspector filed a complaint under Section 16 of the Prevention of Food Adulteration Act, 1954.
3. The learned Magistrate by his impugned judgment held that from the statement of the Food Inspector Shambhu Datt P.W. 1 it Was not clear when and how the sample was sent to the public analyst. It was also not proved whether the bottles in which the sample was placed were dry and clean and whether they were properly packed and sealed. The food Inspector simply stated that the samples were sealed according to rules which the learned Magistrate considered was not sufficient because according to him the provisions of the relevant rules were manda ory. One of the three bottles of sample was also not produced in the court along with the challan. The learned Magistrate further held that it was also not proved whether any of the two witnesses of the purchase of the milk were present at the spot or not Kripa Ram PW 2 simply said that he had seen the sample in the possession of the food inspector and he had only signed the recovery memo. It shows that he arrived after the Inspector had completed his proceedings. Chunni Lal PW 3 even denied that the formalities of recovery memo were completed in his presence. He did not remember how many bottles were there & therefore the learned Magistrate thought that this witness did not support the prosecution case. It was urged before the learned Magistrate that conviction could be based upon the solitary evidence of Shambhu Datt Inspector but the learned Magistrate rejected this argument because he did not consider the food Inspector a man of sterling worth. The Magistrate observed that it. is also not established whether the milk was of a cow or not and whether preservative in fact was added to the sample Finally, he was of the view that the offence was not established beyond reasonable doubt.
4. The learned Counsel for the Municipal Council, Alwar challenged the findings of acquittal and urged that such offence should be sternly dealt with. He drew my attention to Shabmhu Narain v. Moti Lal 1971 WLN 108 para 10 wherein it was observed that it is the duty of the Court not to given weight to sentimentality but to apply the law as it is. The adulteration of milk is an anti social offence which affects the health of the people. Next he cited Khaju v. State 1971 WLN 409 para 6 where adulteration of 11% of added water in the milk was considered as no small scale adulteration and the sentence of three months rigorous imprisonment and a fine of Rs. 500/- was maintained. The learned Counsel also questioned the findings of the learned Magistrate regarding the violation of the rules regarding packing and sealing. He contended that the Magistrate has not mentioned the specific rules which are said to have been violated Further, the evidence of the inspector was rejected without any good reason It appears to me that the objections raised by the harried Magistrate were not correct. If he had cared to read Ex. P/2, most of his doubts would have been dispelled in respect of the procedure adopted by the Inspector and of the compliance of the rules. That form also shows that the milk was cow milk The inspector also deposed that he had added preservative to the sample. But the question for consideration is whether the acquittal should be set aside.
5. The standard of cow milk in Rajasthan in fats, 3.5% and non fat contents, 8.5%. It will be seen that the percentage of the fatty contents in this case was higher by 2.3% than prescribed while the solid non-fat contents fell short by 1.3.
6. In Malwa Co-operative Milk Union Ltd. Indore and Ors. v. Behari Lal and Anr. 1963 JLJ 213, in one sample of buffalo milk, the milk fat was 6% and solids non fat were 7.9% while an the other sample milk fat was 5.9% and solids non fat 7.7%. The standard of buffalo milk prescribed was milk fat not lees than 5% and solids not less than 5%. The Supreme Court observed that it appeared that the solids in the milk should be of the order of 14% minimum, while in one sample, they were only .1 percent less and in other .4 percent less. It was not clear whether the analyst was able to isolate the fat content so successfully as not to have left room for this slight variation. It is possible that a slight error in calculation or in isolation of fat might have been made. What is generally extracted is cream and not the other solids.
7. In the State v. Badri AIR 1965 Raj 152 it was however observed that where the sample contained better percentage of milk fat contents but it is found deficient in other contents, the accused shall nevertheless be deemed to be an offender under the law. But the fact that the milk hid better fat contents can be considered while awarding sentence to the offender. In the case before me the prescribed minimum of solids should be 12% and these found in the sample were 13% and the percentage of fat was certainly higher than the prescribed minimum But that fact is only an extenuating circumstances and cannot justify an acquittal. The shortage in percentage of non-fat solids does not appear to me be slight or marginal.
8. The learned Magistrate was also not justified in holding that the testimony of Shambhu Datt Inspector cannot be relied upon. According to Sub-section (7) of Section 10 of the Prevention of Food Adulteration Act, 1954 when a Food Inspector takes a sample of any article of food, he is required to to call one or more persons to be present at the time when such action is taken and take his or their signatures In Bibu Lal Harprasad v. State of Gujrat AIR 1971 SC 1277 it was observed that the provision of Sub-section (7) are salutary and should be complied with by the Food Inspector. This however does not mean that the evidence of the Food Inspector who is not an accomplice that he had complied with the requirement of the law by calling a Panch witness and taking his signature cannot be accepted without corroboration especially when the Panch has admitted his signature. The evidence of the Food Inspector alone if believed can be relied upon for proving that the sample was taken as required by law. In face of these observations, it appears to me that, the learned Magistrate was clearly in the wrong when ha said that the evidence of the Food Inspector cannot be believed because he was not of sterling worth. I, therefore, find that the order of acquittal is not justified and deserves to be set aside. But in view of the fact that fat contents were higher than the minimum prescribed and that the case has prolonged for last seven years or so, it appears that it is a fit case in which the accused respondent should be given the benefit of Probation of Offenders Act.
9. I, therefore, accept this appeal, set aside the order of acquittal made by the learned Magistrate convict the accused respondent under Section 16 of the Prevention of Food Adulteration Act, 1954, but instead of prescribing any sentence I consider it expedient to release him on probation of good conduct and direct that he be so released on his entering into a bond in the amount of Rs. 500/ with surety in the like amount to appear and receive sentence when called upon during a period of six months and in the mean time to keep peace and be of good behaviour. The bonds shall be furnished before the Judicial Magistrate First Class, Alwar within such period not exceeding two months which may be fixed up by the said Magistrate on the receipt of this judgment in his court.