1. This is an appeal by the Public Prosecutor against the acquittal of the accused Muthu Naicker under Section 7(1) read with Section 16(1) of the Prevention of Food Adulteration Act hereinafter referred to as the Act.
2. The prosecution case is that on 17-5-1960 at about 9-35 a.m. at Venkatappa Chettiar Road, Shevapet, the accused was having in his possession for sale and sold buffalo milk which on analysis was found to be adulterated with 18 per cent of added water.
3. The plea of the accused was that the milk was personally drawn by him. and was pure, that after giving the milk to P.W. 1 Sundararaj he was engaged in tying kudams to the cycle and that he was not present when P.W. 1 filled the bottles and that P.W. 2 Narasimha Ayar, the Mahazar witness, was not also present there. P.W. 1 has clearly stated that the accused was selling milk in Venkatappa Chettiar Road, that he called him and asked him whether the milk was for sale and that he told him that it was for sale. The evidence of P.W. 1 is corroborated by the evidence of P.W. 2. The learned Magistrate has referred to some discrepancies in their evidence which are not material. The mere fact that P.W. 1 used to inspect the hotel of P.W, 2 is no ground for holding that P.W. 2 is not an Independent witness. There can be no doubt that the accused sold the milk to P.W. 1.
4. The main question for consideration in this case is whether the accused is entitled to be acquitted on account of the fact that the prosecution did not make the entire contents of the bottle retained by P.W. 1 Sundararajan available for being sent for further analysis by the Central Food Laboratory. It Is necessary to 'state a few facts before dealing with this contention.
P.W. 1 purchased three ollocks of buffalo milk from the accused and divided it into three parts and sealed them in three separate bottles after adding the necessary preservative. He gave one sealed bottle to the accused, sent another sealed bottle to the Public Analyst and retained the third sealed bottle with him for production in case legal proceedings are taken or for analysis by the Director of Central Food Laboratory under Sub-section (2) of Section 13 as contemplated in Section 11 of the Act. It is clear from the evidence of P.W. 1 that the sample sent to the public Analysit in the first instance was reported to have been damaged in transit. Thereupon he sent the third bottle retained by him to the Analyst. The Analyst used half of the contents of the third bottle and sent the remainder in a bottle with his seal. The accused filed an application before the Magistrate under Section 13(2) of the Act to direct the Food Inspector to produce the third bottle to be sent to the Director of Central Food Laboratory for analysis.
Normally the accused should have requested the court to send the bottle given to him to the Director of Central Laboratory for analysis. It is only for this purpose one bottle of sample milk is given to him. Section 13(2) of the Act states that the accused vendor or the complainant may make an application to the Court for sending the part of the sample mentioned in Sub-clause (i) or Sub-clause (iii) of clause (c) of Sub-section (1) of Section 11 to the Director of Central Food Laboratory for a certificate.
It is true that there is no word 'respectively' at the end of the clause. But having regard to the scheme of the Act and the wording of the section, there can be no dour, that Section 13 (2) contemplates the accused asking the Court to send the sample given to him under Section 1(1)(c)(i) of the Act and the prosecution asking the Court to send the sample retained by it under Section 11(1)(c)(iii) of the Act. In fact there is no provision in the Act for one party summoning the other party to produce the sample bottle for milk kept by the other party for being sent for analysis. It is true that in special circumstances the Court may order the production of the bottle retained by the other party for being sent for analysis by the Central Food Laboratory. In the present case the accused pleaded in his application that the container of the milk given to him was broken and therefore the sample milk given to him was not available with him. But there is nothing to substantiate this statement. It is true he has mentioned it even in his statement under Section 242, Cri.P.C.
5. The prosecution has produced the remaining half bottle sent back by the Public Analyst. I fail to see what more the prosecution could have done in the circumstances of this case. The sample bottle sent to the Public Analyst appears to have been destroyed during transit. Hence, the third bottle retained by the Food Inspector had necessarily to be sent in order to obtain the opinion of the Public Analyst whether the milk was adulterated or not. If the entire milk has been utilised for the analysis, nothing further could have been done. But the Public Analyst was able to utilise only half the quantity of the milk contained in the second bottle sent to him and returned the other half in the bottle with his seal. Having regard to this fact, it could not be said that the accused was in any way prejudiced. In fact the accused has to blame himself for having broken the sample bottle given to him and thus making it impossible for sending the said sample to the Centra! Food Laboratory.
6. The learned advocate for the accused contended that the Food Inspector had no right to send the sample retained by him under Section 11(1)(c)(iii) of the Act to the Public Analyst without obtaining the order of the Court, Normally the food inspector is expected to send only the sample mentioned in Section 11(1)(c)(ii) of the Act and it has also been done in this case. But as the said milk sample bottle was reported to have been damaged during transit, P.W. 1 had to send the third bottle retained by him. The Food Inspector can obtain the orders of the Magistrate only after filing a complaint in Court and he cannot prefer a complaint against the accused without first obtaining the report of the Public Analyst that the milk sold to him was adulterated. Hence the Food Inspector had necessarily to send the third bottle retained by him for obtaining the opinion of the Public Analyst.
7. The learned advocate for the accused referred to the evidence of P.W. 1 in cross-examination that the samples were sent to the Public Analyst by his office and argued that there is no proof that the report of the Public Analyst Ex. P.4 referred to the sample bottle of milk taken in this case. It is true P.W. 1 deposed in chief examination that the samples were sent by his office. In chief examination he has clearly stated that Ex. P. 1 is the voucher prepared by him and that Ex. P.4 is the report of the Analyst certifying that that sample No. 1079 contained 18 per cent of the added water. Ex. P. 1 shows that the sample taken in this case is No. 1079 of 1950. The resort Ex, P.4 shows that the analysis was made only in respect of the said sample. There can be therefore no difficulty about the identity of the sample analysed in this case.
8. The learned Magistrate did not order the petition filed by the accused under Section 13(2) of the Act on the ground that the sample contemplated under Section 11(1)(c)(iii) of the Act is not available with the prosecution and that the one produced into Court being the remnant of that already claimed to have been sent to the Public Analyst need not be sent to the Director of Central Food Laboratory as requested in the petition. The learned magistrate is not correct on facts. The first sample sent to the Public Analyst was the one intended for him, namely, one taken under Section 11(1)(c)(ii) of the Act. On account of the report of the Public Analyst that the bottle sent to him was broken during transit, the remaining sample bottle retained by the Food Inspector P.W. 1 as required in Section 11(1)(c)(iii) of the Act was sent to the Public Analyst.
9. In his judgment the learned Magistrate refers to the fact that under Rule 22 of the Prevention of Food Adulteration Rules 8 oz. of milk is the appropriate quantity to be sent for analysis and that the sending of 402. of milk would not be a proper compliance with the provisions of the rules. The quantity mentioned in Rule 22 is only an approximate quantity. It is clear from the evidence in this case that the Public Analyst was able to give his opinion by analysing 4 02, of milk. It is, the duty of the learned Magistrate to have sent the 4 oz. of milk contained in M.0. 1 for analysis to the Central Food Laboratory. If the Central Food Laboratory found any difficulty in analysing the milk on account of the smallness of the quantity, It is then open to the magistrate to consider whether the accused is in any way prejudiced. There could have been no difficulty for the Central Food Laboratory to have analysed 4 oz. of milk Just as the Public Analyst had done. In fact there may be cases where only a small quantity of milk, namely 4 oz. or 6 oz, could be seized from an accu'sed person on account of his trying to destroy the milk and partially succeeding in his attempt when he is apprehended. It could not he said that in such a case, the accused should be acquitted.
There is neither logic nor reason in putting forward such an, argument. For the foregoing reasons, I am unable to accept the view of the learned Magistrate that the accused was in any way prejudiced in this case.
10. There can be no doubt that the accused sold adulterated milk. 1 therefore find him guilty under Section 7(i) read with Section 16(1) of the Prevention of Food Adulteration Act. But on the question of sentence, I do not want to Impose the usual sentence of fine or imprisonment in this case, as I am convicting him for the first time in an appeal against acquittal. The accused Is a first offender. This appeal has been preferred mainly to correct the wrong view of the law taken by the learned magistrate. Having regard to these facts, I consider it sufficient to admonish the accused under Section 3 of the Madras Probation of Offenders Act.