M.L. Jain, J.
1. This appeal is directed against the leaned Municipal Magistrate, Jaipur, dated 16-10-70 by which, he acquitted the respondent under Section 7/16 of the Prevention of Food Adulteration Act, 1954 No one appears on behalf of the respondent. I have beard Counsel for the appellant Stale and have looked into the record of the case.
2. The facts are that on 11.8.66 at 7.00 a.m., Food Inspector Laxman Swaroop Goyal along with another Food Inspector Premchand checked the respondent Nathu near Hathroi on the Mirza Ismail Road in the city of Jaipur when he was carrying on his cycle milk for sale. He purchased a sample and divided it and placed the same into three bottles. He also put 16 drops of formaline in, each of the bottles. When one of the, bottles Was sent to the Public Analyst, for chemical examination, his report of the analysis was as follows,-
Fat content. 4.1%.
Solids non fat 6.01%.
The opinion of the public analyst was that the sample of milk was adulterated by reason of it's Containing about 33% of added water.
3. On being tried for, an offence under Section 16 of the Prevention of Food Adulteration Act, 1954, the learned Magistrate acquitted the accused on three ground : (i) that 16 drops of formalin was not a sufficient quantity, of the preservative to be added to the sample so as to prevent it from decomposition, (ii) the statement of the Food Inspector Laxman Swaroop was not sufficient to inspire confidence in the mind of the learned Magistrate and (iii) the sample was purchased on 11-6-66 the report of of Public Analyst dated 29-6-66 and the complaint was lodged on 7-10-66. The accused could not be served for a long time and he was served only on 30.1.67 for the date of hearing namely, 9.2.67. Thus, the service on the accused was effected after eight months During this time, the sample should have decomposed and the accused was thus deprived of his valuable right under Sub-section (2) of Section 13 of the aforesaid Act of having the sample examined by the Central Food Laboratory.
4. The Learned Counsel for the Municipal Council submitted that all the three grounds given by the learned Magistrate were contrary to the facts of the case and law applicable thereto. I have considered over his contentions and it appears to me that the learned Magistrate had certainly misdirected himself in the matter of assessment of the evidence and application of the relevant and law.
5. According to Rule 20 of the Prevention Food. Adulteration Rules, 155, two drops of formalin are required to be added for 25 grams of milk. Thus 16 drops of formalin cannot be considered insufficiently or in contravention of the said Rule 20. The learned Magistrate was therefore clearly in wrong when he observed that the quantity of formalin added to the sample was insufficient.
6. As regards the second ground, it is obvious that the learned Magistrate has not given any reason why the statement of Laxman Swaroop Goyal, Food Inspector, failed to inspire confidence in him. The accused himself had admitted that he was checked while he was carrying milk and that the Food Inspector purchased the sample from him. Both the Food Inspectors have proved the documents and memos which were prepared by them at the time of purchase of the milk. This ground, therefore, is entirely baseless.
7. As regards the third ground, the learned Counsel for the Municipal Council cited three rulings in his support, namely, Babulal Hargozindas v. State of Gujrat : 3SCR275 , Ajitprasad Ramkishan Singh v. The State of Maharashtra : 1972CriLJ1026 and Municipal Council Jaipur v. Bhanwarlal 1974 WLN 58. The substance of these ruling is that even the cases where the prosecution has been lodged with delay giving rise to the suspicion that the sample might have deteriorated, such a right does not arise in favour of the accused until he makes an application for sending the sample for analysis by the Central Food Laboratory. In this case, no such application was made by the accused, and therefore it cannot be said that he was deprived of any right available to him under Sub-section (2) of Section 13 of the said Act.
8. Thus, all the three grounds which the learned Magistrate advanced for acquittal of the accused, are erroneous. The case against the accused was well proved by the statements of the prosecution witnesses. Kanhaiyalal PW 2 deposed that the accused was having 8 to 10 drums of milk and that the Food Inspector purchased the sample in his presence. He also proved the receipt Ex. P-1. The Inspectors have also deposed that they took the sample in accordance with the rules and forwarded the same for chemical examination.
9. I, therefore accept this appeal, set aside the impugned judgment and order of acquittal made by the learned Magistrate and convict the respondent Nathu of an offence under Clause (9) of Sub-section (1) of Section 16 of the Prevention of Food Adulteration Act, 1964 The fat contents of the milk were quite in accordance with the standard but the solids non fat fell short of the prescribed standard. The report of the Public Analyst is that the sample contained 33% of added water I, therefore sentence the respondent to under go rigorous imprisonment for six months and to pay a fine of Rs. 1000/- in default of payment whereof to undergo additional simple imprisonment for two months. The accused shall surrender to his bail bonds in the court of the Chief judicial Magistrate, Jaipur, to serve the sentence. Incase he fails, the said Magistrate shall have him arrested and send to prison in compliance of this judgment.