JUDGMENT
Navin Chandra Sharma, J.
1. On November 28, 1976 at about 8.30 a.m., Shyam Lal Bhati, Food Inspector, Gulabpura Town was on his inspection round and found the petitioner carrying milk in two containers on his bicycle infront of a small hotel of Patu Lal. The Food Inspector asked the petitioner to stop but on his failing to do so, the Inspector chased the petitioner and caught the latter near the hotel of Teekam. He brought the petitioner at the hotel of Patu Lal. Suspecting that the milk which was being carried by the petitioner was adulterated, the Food Inspector prepared a notice Ex. P 1 in Form VI to be given to the petitioner of his intention to send the sample of the milk for the purpose of analysis to the Public Analyst and asked the petitioner to sign it. The petitioner did not sign Ex P. 1, and went away with one out of the two containers containing milk under an excuse that he was coming back after easing himself. The Food Inspector waited for the return of the petitioner but the latter did not come back. The Inspector sent his peon Surajmal to search the petitioner but he was not found. Exercising his powers under Sections 10 and 11 of the Prevention of Food Adulteration Act, 1954 (here in after, of short ‘the POFA Act”), the Food Inspector took the sample of milk weighing 660 mls. from out of the milk contained in the container which had been left by the petitioner in the presence of Narayan Prasad PW 2 and Surajmal PW 3 under the document Ex. P 2. After performing necessary statutory formalities required by or under the POFA Act the Food Inspector sent one of the three sealed bottles of the sample milk to the Public Aanlyst, Bhilwara from whom the report Ex. P 5 was received by the Food Inspector that the sample of milk was adulterated as it contained about 50% added water. The Public Analyst declared the result of the analysis of the sample of milk to be as follows:
(1) Fat content ...... 4.3% (2) Solid-non-fat ...... 4.5% (3) Test for starch ...... Nil (4) Test for cane sugar ...... Nil
Consequently, a prosecution ensued in the court of the Judicial Magistrate, Gulabpura and after trial, the Judicial Magistrate held the petitioner to be guilty for the offence under Section 7 read with Section 16 of the POFA Act and sentenced him with simple imprisonment for a term of six months and with a fine of Rs. 1000/- and in default of the payment thereof to simple imprisonment for a further term of six months. The petitioner failed before the Court of Additional Sessions Judge, Bhilwara in appeal on November 12, 1979. He has invoked the revisional jurisdiction of this Court.
2. When the revision was called for hearing on November 27, 1986, neither the petitioner nor his counsel appeared. I, therefore, heard the Public Prosecutor and have perused the record.
3. Four-fold attack has been made by the petitioner in his grounds of revision against his conviction recorded by the courts below. I proceed to deal with and decide them in seriatim. The first ground taken is that there wat not an iota of evidence regarding the identity of the petitioner because none of the prosecution witnesses have deposed in the trial court by pointing out towards the petitioner that the petitioner was the person to whom the Food Inspector saw with two containers or drums of milk, that the petitioner was the person to whom the Inspector had asked for a sample of the milk and that the petitioner ran away dodging the Food Inspector. On this point, it may be stated that Shyam Lal (Food Inspector) PW 1 has deposed in his cross-examination that he knew the petitioner since before the taking of the sample of milk on November 28, 1976 and also knew of his parentage and place of residence. On behalf of the petitioner himself, it was suggested to Shyam Lal in cross-examination that the latter had also launched a false prosecution regarding food adulteration against him before this prosecution. In an earlier part of his cross-examination the Food Inspector stated that he knew the petitioner since before because previous to this incident, a prosecution had been launched by him against the petitioner. What remains more regarding the identity of the petitioner and the petitioner having in his possession for sale the milk in the container seized by the Inspector when the defence witness Mewa DW 1 himself states in his examination-in-chief that the Inspector had checked the container at 8.00 a.m. and the container was on the bicycle of the petitioner. The first ground taken by the petitioner is out-rightly rejected.
4. The next ground taken is that there was delay in filing of the present complaint by the Food inspector in Court. This ground, as a matter of fact, deserves even no discussion as there was no delay what so ever in the presenting of this complaint by the Food Inspector in the Court. Sample of the milk was taken by the Inspector on November 28, 1970. It was sent to the Public Analyst on the very next day and was received by the Public Analyst on November 30, 1976. The Public Analyst sent his report on December 8, 1976. The District Magistrate, Bhilwara, who was the person authorised to give consent for prosecution under Section 20 of the P.O.F.A. Act, gave his written consent on December 30, 1976 for the institution of the present prosecution. The present complaint vas filed in the court of the Chief Judicial Magistrate on January 13, 1977. It is mentioned in Ex. P 4 that the Food Inspector had added 18 drops of formalin to the milk sample. The Public Analyst has certified in Ex. P 5 that the sample was in a condition fit for analysis. The Public Analyst had made analysis of the milk within three days of the taking of the sample and had sent his report within eight days of the receipt of the sample. The petitioner had not made any application to the court under Section 13(2) of the P.O.F.A. Act to get the sample of the milk kept by the Local (Health) Authority analysed by the Central Food Laboratory. This neither there was any delay in the filing of the complaint nor any denial to the petitioner of opportunity to make application under Section 13(2) of the P.O.F.A. Act. As a matter of fact, the petitioner himself refused to take the letter Ex. P 7 which had been sent to him by the Local Health Authority along with copy of the Analysis Report of the Public Analyst.
5. Conviction can thus be based on the basis of the report of the Public Analyst. Reference in this connection may be made to the decision in Municipal Corporation of Delhi v. Ghisa Ram ) and Jagdish Prasad Gupta’s case .
6. Third ground taken by the petitioner in his revision petition is that when the milk was taken out of the container, it was not known to the Food Inspector as to whom it belonged & without making the payment of its price, the sample was taken by the petitioner. It has already been mentioned above that even the defence witness Mewa DW 1 has admitted that when the sample was taken by the Food Inspector from the container, the same was on the bicycle of the petitioner The Food Inspector was ready to pay 90 paise for the sample milk taken and had even prepared the ‘Panchnama’ Ex. P 1 but the petitioner dodged the Food Inspector on the ground that he has to ease himself and would come back soon. However, the petitioner did not return and the Food Inspector took the required sample in the presence of ‘motbirs’ Narayan Prasad PW 2 aud Suraj Mal PW 3 have supported the case of the complainant It may be observed that the definition of ‘sale’ in Section 2(xiii) of the POFA Act is very wide. It gives extensive meaning to the term ‘sale’ in as much as it includes within its ambit not only the sale of an article of food for human consumption or use but also includes sale for analysis and having in possession for sale of any such article. Section 10(1) of the POFA Act gives power to Food Inspector to take sample of any article of food from any person selling such article & from any person who is in the course of conveying delivering or preparing to deliver such article to a purchaser. It has been held in the case of Corporation of Calcutta v. M/s Rathi & Co. that Section 10 of the POFA Act is not restrictive of the powers of the Food Inspector. Ft only enumerates certain circumstances in which samples may be taken from different persons. This enumeration is not exhaustive nor does it in any way operate as restriction on the powers of the Food Inspector to take a sample which is the object of the provision. Where, therefore, sample is taken under the rules, it does not cease to be a sample merely on the ground that the proprietor or seller slips away on approach of the Food Inspector or that there is none to accept the price. What is important is whether the sample taken is a sample of any article of Food taken under the provisions of the POFA Act or of any rules made thereunder and whether it is taken from a person having in possession for sale any article of food and if that is so, failure to comply with the provisions as are rendered impossible of performance or as do not affect the quality of the sample or give rise to a doubt as to whether the sample was taken from the possession of a person having it in possession for sale. Proviso to Section 11(1) of the POFA Act provides that where a person refuses to sign or put his thumb impression, the Food Inspector shall call one or more witnesses and take his or their signatures or thumb impression, as the case may be in lieu of the signature or thumb impression of such impression. This requirement was complied with in the instant case, as is clear from Ex. P 1 (which is Form VI) and it is signed by Narayan Prasad PW 2 as witness in lieu of the signature or thumb impression of the petitioner and also from Panchnama Ex. P 2 which is signed by Narayan Prasad PW 2 and Suraj Mal PW 3 as witnesses. Thus the third ground raised by the petitioner also fails.
7. Last ground taken is that there is no finding as to how much was the required standard prescribed under the Act and how much it fell short of the prescribed standard without any indication of the clases, the standards prescribed for buffalo milk shall apply. The standard prescribed for buffalo milk is milk fat 5. 30% and milk solid-non-fat 9% The sample taken from the petitioner’s milk was found that fat content was 4.3% & solids-non-fat content was 4.%. Thus there was deficiency both in fat content as well as solids-nonfat and it has been opined by the Public Analyst that the sample of the milk was adulterated as it contained about 50% of added water. In Kisan Trimbak Kothule’s case (1976 Cr. L.R. (SC) 541), their Lordships of the Supreme Court did not agree with the submissions made by the counsel for the appellant in that case that addition of water to milk did not amount to adulteration.
8. Consequently, this revision has no merit in it and it is hereby dismissed. The petitioner is on bail. The Judicial Magistrate, Gulabpura is directed to get Chhagna petitioner to be taken in custody and he may be committed to jail to undergo the sentence of imprisonment that has been awarded to the petitioner by the said Magistrate by his judgment dated December 7, 1978 in Criminal Original Case No. 107 of 1977 of his Court.
9. Order pronounced in open Court.