Yahya Ali, J.
1. This is an appeal by the Crown from the acquittal of the respondents in C.C. No. 27 of 1946 on the file of the Sub-Divisional Magistrate, Gudivada. The case was first tried by the Stationary Sub-Magistrate, Gudivada and he subsequently forwarded it under Section 349(1), Criminal Procedure Code, to the Sub-Divisional First Class Magistrate, Gudivada, for disposal as he was of the opinion that since the second respondent was a child within the meaning of the Madras Children Act, his case called for a different punishment from that which he was empowered to inflict. The Sub-Divisional Magistrate on a review of the evidence came to the conclusion that no case had been made out against either of the respondents and he accordingly acquitted both of them.
2. The charge sheet in the case was filed by the executive authority of the Gudivada Municipality and the respondents were alleged to have committed offences under Rules 27 and 29 of the rules framed under Section 20 of the Madras Prevention of Adulteration Act and also under Section 109 read with Section 138 of the Public Health Act. They were stated to have been responsible for the adulteration of milk and for the sale of the adulterated milk and in the charge sheet it was further alleged that the first accused being the owner who offered for sale adulterated milk and the second accused being in possession of adulterated milk for sale were both liable for conviction. The milk was seized while it was being delivered by the second accused at the coffee hotel of P.W. 1 by the Municipal Sanitary Inspector P.W. 2 who after complying with the provisions of the Act took samples and sent them to the Government Analyst. The Government Analyst was of opinion that the milk seized from the second accused contained 51 per cent, of added water. The learned Sub-Divisional Magistrate on a careful scrutiny of the evidence came to the conclusion that the first accused was not proved to have had anything to do with the milk or the transaction in it and as regards the second accused he was of the opinion that it was not proved by the prosecution that he was-1 offering any milk for sale. He found that there was not the slightest indication that he added water to the milk that was tested or that he even knew of the addition of water to the milk by the person who handed over the milk vessel. The case of the first accused was that he had nothing to do with the milk and that the second accused was not his servant at all. The second accused pleaded in his statement that he was employed under one Somayya thereby meaning that he was not the employee of the first accused. He stated that when he was going to Gudivada taking his master's milk to be supplied to their regular constituents he was asked on the way by the first accused's wife to take some milk and give it in P.W. I'S hotel and that he complied with that request. The milk that was seized from him by P.W. 2 was not his master Somayya's milk but the milk that was given to him on the way by the wife of the first accused.
3. Upon the facts there is little doubt that adulterated milk was recovered from the 2nd respondent but it is equally clear from the evidence that the 2nd respondent was not having the milk in his possession for sale nor was the milk proved to have been adulterated by him. Further it has not been proved that the first accused who was not the master of the second accused had any knowledge whatever of the transaction. I am therefore in entire agreement with the findings of fact arrived at by the learned Sub-Divisional Magistrate. Since however some legal contentions have been raised by the learned Public Prosecutor it is necessary to set out the relevant provisions.
4. Section 5(1)(a) of the Madras Prevention of Adulteration Act provides that every person who sells any food which is not of the nature, substance or quality of the article demanded by the purchaser shall be punishable with fine extending to Rs. 100 for the first offence and with higher fines for subsequent offences. Section 20 of the Act empowers the Local Government to make rules generally to carry out the purposes of the Act and in particular inter alia to prescribe standards of purity for milk, etc., and also to prohibit in the interests of public health the addition of water or other diluent or adulterant to any food. In exercise of these powers Rule 27 was, among other rules, enacted which provides that no person shall add any water or any skimmed or separated milk to milk intended for sale and that no person shall either by himself or by any servant or agent sell or offer or expose for sale and no person shall have in his possession for the purpose of sale any milk to which any such addition has been made. Rule 29 provides that whoever commits a breach of any of the rules shall be punished with (a) in the case of a first conviction with fine which may extend to Rs. 100 and (b) in the case of a subsequent conviction with fine which may extend to Rs. 500. It is not necessary for the purpose of this case to set out the provisions of the Public Health Act.
5. The charge sheet, as I have already stated, proceeded on the footing that the first accused being the owner, offered for sale adulterated milk. There is no foundation whatever in the evidence for holding that he had any knowledge of the transaction or of the adulteration of the milk ; much less is there anything to show that he offered for sale the adulterated milk. The only record we have of anything implicating the first accused is the statement of the second accused in which he mentioned that on his way to the hotel when he was carrying his master's milk the wife of the first accused entrusted to him a pail of milk to be delivered at the same hotel. But that statement has not been substantiated and the learned Sub-Divisional Magistrate was right in finding that there are several circumstances casting a doubt upon the truth of that statement. It must therefore be found that there is no legal evidence of any kind connecting the first accused with the adulteration or sale of the milk.
6. Coming to the second accused the case was that he was in possession of the adulterated milk for the purpose of sale. This expression is used in the charge sheet in view of the language of Rule 27 which says that no person shall have in his possession for the purpose of sale any milk to which water has been added. I have already found that the second accused was not in possession of the adulterated milk for the purpose of sale. The further question that has to be considered is whether mere possession of adulterated milk constitutes by itself an offence within the meaning of Rule 27 and whether there is scope for an inference from the mere factum of possession that such possession was for the purpose of sale. The learned Public Prosecutor invites my attention to Sub-section (2) of Section 5 of the Madras Prevention of Adulteration Act which lays down that in every prosecution for an offence under this section, the Court may presume that any food found in the possession of a person who is in the habit of manufacturing or storing like articles for sale has been manufactured or stored by such person for sale. In order that any such presumption might be drawn against the second respondent it must first be established that he was in the habit of manufacturing or storing like articles for sale. That is not the prosecution case against the second accused and consequently this provision can conceivably have no application to the second accused. No other provision in the Act or in the rules has been brought to my notice under which an inference can be drawn that such possession was for the purpose of sale. Section 6(i) merely says that the plea of ignorance by the vendor as to the nature, substance or quality of the food sold by him is no defence to a prosecution for an offence under Section 5. There is no case at least so far as the milk involved in this case goes that the second accused was the vendor.
7. A decision of Byers, J., in G.A. No. 392 of 1944 of this Court (unreported) has also been brought to my notice by the learned Public Prosecutor. I do not think it necessary to refer to the facts of that case as they are entirely different from the facts of the present case. There the learned Judge pointed out that milk was being carried by the accused every day for being sold to a shop keeper and that the shop-keeper was purchasing the milk from the accused every day.
8. For the foregoing reasons, I agree with the learned Sub-Divisional Magistrate that neither the first accused nor the second accused is guilty of having contravened the provisions of the Madras Prevention of Adulteration Act or Rules 27 and 29 framed under that Act. The appeal is accordingly dismissed.