JUDGMENT
Shambhu Prasad Singh, J.
1. This is an appeal by special leave under Section 417(3), Criminal Procedure Code by the Chairman, Jugsalai Notified Area Committee, against a judgment and order of a First Class Munsif Magistrate at Jamshedpur acquitting the respondent of the charge under Section 16(1) of the Prevention of Food Adulteration Act, 1954, (hereinafter to be referred to as ‘the Act’).
2. According to prosecution case, on 31-5-1965 a Food Inspector of the Committee (P. W. 1) went to the shop of the respondent and took sample of cow’s milk weighing 3/4th Seer, after observing the necessary formalities and on payment of price. He divided the milk into three parts and kept each part measuring 8 oz. in three bottles. He also added 8 drops of formalin (a kind of preservative) in each bottle and thereafter sealed and packed them. He gave one of the bottles to the respondent and took two of them with him. Out of those two, one was sent to the public analyst, who found the milk adulterated (vide his report Ext. 5). Thereafter a prosecution report was filed against the respondent and he was put on trial.
3. The defence of the respondent is that he does not sell milk; rather has got a tea and pakauri shop and the Food Inspector took the sample of the milk which he had kept at his shop for preparing tea and paid the price of it against his wishes. He claims that he has not committed any offence.
4. The prosecution examined two witnesses, the Food Inspector (P. W. 1) and another employee of the Notified Area Committee (P. W. 2). A third witness, a peon of the Notified Area Committee, was merely tendered. The defence also examined a witness.
5. The learned Munsif Magistrate did not find any defect in launching of the prosecution or with the taking of the sample of the milk by P. W. 1 but has acquitted the respondent on the grounds (i) that as the required quantity of formalin was not mixed up with the specimen, the respondent could not be convicted on its analysis, (ii) that as the Public Analyst was not examined in the case, the defence could not get an opportunity to cross-examine him and the respondent could not be held guilty on the basis of his report; and (iii) that as the accused had a stall of tea and pakauri and was not a seller of milk, he could not have been found guilty of adulteration of milk.
6. P. W. 1 in his cross-examination has admitted that the respondent has a shop of tea and he did not sell the milk in the former’s presence, P. W. 2 has also admitted that he did not see the respondent, who sells tea, pakauri, singhara, etc. selling milk. The defence witness has said that the respondent has got a tea and pakauri stall, that milk is not sold at his stall and that the Food Inspector took the sample and paid price for it against the wishes of the respondent. On this evidence the question would arise whether the respondent can be held guilty for selling milk which was adulterated. It was contended by learned counsel for the appellant that a sale for analysis is a sale for the purposes of this Act Reliance was placed on the definition of ‘sale’ in Section 2(xiii) of the Act which runs as follows:–
” ‘Sale’ with its grammatical variations and cognate expressions, means the sale of any article of food, whether for cash or on credit or by way of exchange and whether by wholesale or retail, for human consumption or use, or for analysis, and includes an agreement for sale, an offer for sale, the exposing for sale or having in possession for sale of any such article, and includes also an attempt to sell any such article.”
A sale for analysis is undoubtedly a sale according to the definition; but the question which arises for consideration is whether transfer of articles of food for analysis in all cases, whether voluntary or non-voluntary, amounts to a ‘sale’, for the purposes of the Act. According to provisions of the Act, transfer of articles of food for analysis may be to Food Inspector or to a purchaser other than a Food Inspector, i. e. to a member of the public. Section 12 of the Act provides that any purchaser of any article of food other than a Food Inspector may have the article analysed by the Public Analyst on payment of the prescribed fees provided he informs the vendor at the time of the purchase of his intention to have such article so analysed and follows provisions of Sub-section (1), (2) and (3) of Section 11 so far they may apply. These sub-sections, inter alia, lay down that before taking a sample of any article of food for analysis written notice of the intention to have it analysed must be given to the vendor; the sample should ordinarily be separated into 3 parts and thereafter sealed, one of which should be delivered to the vendor, another should be sent to the Public Analyst for analysis and the third should be retained by the purchaser; in case where the vendor declines to accept any of the parts of the sample, it should be divided then only into two parts, one for being sent to the Public Analyst and the other for being retained by the purchaser; and, in sending the sample to the Public Analyst rules prescribed for the purpose should be followed.
While Section 16(l) (b) provides that any person who prevents a Food Inspector from taking a sample as authorised by this Act shall be liable to be punished, there is no similar provision in the Act for refusal to sell a person other than a Food Inspector for the purposes of getting the article of food analysed by a public analyst. Therefore, transfer of any article of food by a vendor to a person other than a Food Inspector for the purpose of getting analysed by a Public Analyst ordinarily, cannot but be voluntary sale, inasmuch as, if the vendor refuses to transfer the goods no action can be taken against him.
7. But, as the Act makes preventing a Food Inspector from taking a sample as authorised by the Act penal, the transfer of an article of food to the Food Inspector may be either voluntary or non-voluntary. Section 10(1) (a) of the Act empowers the Food Inspector to take samples of any article of food from (i) any person selling such article; (ii) any person who is in the course of conveying, delivering or preparing to deliver such article to a purchaser or consignee; and (iii) a consignee after delivery of any such article to him. Sub-section (2) of that section empowers the Food Inspector to enter and inspect any place where any article of food is manufactured, stored or exposed – for sale and take samples of such articles of food for analysis. Sub-section (3) of that section lays down that the Food Inspector after taking sample Under either of the two preceding subsections should pay to the person from whom the sample is taken price of the article calculated at the rate at which it is usually sold to the public. The word “selling” in Section 10(l)(a)(i) and the word ‘sale’ in Sub-section (2), it is obvious, do not mean sale for analysis to a Food Inspector, inasmuch as, these words refer to state of affairs which must be in existence before taking of the sample by the Food Inspector which may amount to sale as defined under Section 2(xiii) of the Act. If the person from whom the Food Inspector wants to take the sample readily agrees to it, allows him to take the sample and accepts the price, it will be a case of voluntary sale. In case he does not agree to the sample being taken, the Food Inspector may take the sample even against his wishes. In that case it will also amount to a sale as defined in the Act, but a non-voluntary one. In Food Inspector, Calicut v. Parmeshwaran Parmeshwar Chettiar, 1962 (1) Cri LJ 152 (Ker), a learned Single Judge of Kerala High Court took the view that there was no sale when a Food Inspector obtained a sample under Section 10 of the Act and the person from whom the sample was taken could not be convicted for an offence under Section 16(1) (a) (ii) of the Act. In Mangaldas Raghavji v. State of Maharashtra, AIR 1966 SC 128, however, it was observed that it was difficult to appreciate the reasons of the learned Single Judge of Kerala High Court in the case referred to above that a transaction with which he had to deal did not amount to a sale and that it did not necessarily follow that the other person had no choice but to accept the proposal, the transaction would never amount to a contract and there would be no sale. A learned single Judge of this court in Jamshedpur Notified Area Committee v. Prabhu Dayai, Criminal Appeal No. 32 of 1962, judgment dated the 1st. July. 1964 unreported (Pat) has also held that a non-voluntary transfer to a Food Inspector in cases he is empowered to take sample would amount to sale.
8. The instant case, however is not a case where the Food Inspector was empowered to take sample for the evidence on the record does not show that the respondent was selling milk or that he was in the course of conveying, delivering or preparing to deliver milk to a purchaser or consignee or that he was a consignee to whom milk had been delivered or that milk was manufactured for sale, stored for sale or exposed for sale in his shop. Mere storing of milk of quality below the prescribed standard is not an offence according to the Act. The storing must be for sale, and if the respondent would have refused to transfer the milk and accept the price for it from the Food Inspector, he would not have been guilty of an offence under Section 16(l)(b) of the Act. This view is supported by a Bench decision of the Allahabad High Court in Municipal Board, Faizabad v. Lalchand Suraimull, AIR 1964 All 199. That too was a case of sale for analysis of milk by a tea vendor and it was held there that the accused of that case could have very well told the Food Inspector that he might take the sample but they were not going to sell the milk and accept its price, but as they accepted the price it was a case of sale and they were guilty of an offence under Section 7 read with Section 16 of the Act. In the instant case, as it appears from the evidence of P. W. 1, at first the respondent was not willing to accept the price but ultimately did accept it. Of course the witness has also said that the respondent had objected to the taking of the sample of the milk on the ground that it was not for sale and thereupon the Food Inspector insisted for it and threatened to file a case against the respondent if he would not allow him to take the sample. According to this witness, the Food Inspector also insisted that the respondent must accept the money and grant a receipt Can on this evidence it be said that the respondent accepted the price under coercion and, therefore, the transaction would not amount to a sale because non-voluntary transfer of an article of food in cases where the Food Inspector is not empowered to take the sample is not a sale? There is something in the evidence of defence witness no. 1 to show that there was element of coercion in the matter of taking of the sample, but there is nothing in it to indicate that there was coercion also in the matter of acceptance of price and granting of a receipt by the respondent. Therefore, on the evidence on record as it is, it has to be held that the transaction between the Food Inspector and the respondent is a sale for the purposes of the Act.
9. According to Sub-section (5) of Section 13 of the Act, any document purporting to be a report signed by a Public Analyst, unless it has been superseded under Sub-section (3) of that section by a certificate issued by the Director of the Central Food Laboratory, can be used as evidence of the fact stated therein in any proceeding under the Act, A report of a public analyst, therefore, is evidence even without the examination of the Analyst and ordinarily it cannot be brushed aside on the ground of non-examination of the Analyst by the prosecution. True it is that there was some delay in the examination of the milk by the Analyst and the quantity of preservative mixed in the sample of milk was less than the quantity as required by the rules; but, it cannot be laid down as a general rule that in all such cases of delay in the examination of the milk, the prosecution must examine the Analyst and if it fails to do so, the report cannot be relied on. After the report of the Public Analyst is brought on the record by the prosecution it is open either to the court or to the accused to take appropriate steps for his examination if either of the two wants the Public Analyst to be examined as a witness. If the Public Analyst is not examined in spite of the request of the accused it can be argued that he has been prejudiced by his non-examination. In this case, however, it appears that there was no request by the respondent for examining the Public Analyst and the court below has, therefore, erred in ob-serving that the respondent could not be held guilty on the basis of the Analyst’s report because of his non-examination. It has relied on the decisions in (i) Dattappa Mahadappa v. Secretary Municipal Committee, Buldana, AIR 1951 Nag 191 and (ii) Happu v. Emperor, AIR 1933 All 837. In Nagpur case the accused did make an application to the trial court for examining the Public Analyst as a witness and the prayer was disallowed without assigning any reason for it. The Allahabad case was not a case of Food adulteration. It was a case tinder Section 302 of the Indian Penal Code. In Mangaldas’s case, ATR 1966 SC 128, already referred to above, while considering this aspect of the matter the Supreme Court observed as follows :–
“As regards the failure to examine the public analyst as a witness in the case no blame can be laid on the prosecution. The report of the Public Analyst was there and if either the Court or the appellant wanted him to be examined as a witness appropriate steps would have been taken. The prosecution cannot fall solely on the ground that the Public Analyst had not been called in the case.”
It is noteworthy that the judgment of the Supreme Court was delivered by Mudholkar, J., who himself had given the decision in Dattappa’s case as Judge of Nagpur High Court. Certain other observations made in that case which may lead one to think that even if no request is made by the accused for examination of the Public Analyst his report cannot be relied on if the prosecution does not examine him, after the decision of the Supreme Court in Mangaldas’s case. AIR 1966 SC 128, cannot be taken as good law.
10. The Food Inspector (P. W. 1) in his evidence has said that he added 8 drops of formalin in each bottle which contained 8 ozs. of milk. According to Rule 20 of the Prevention of Food Adulteration Rules, 1955, as it stood after amendment on the date of the taking of the sample, two drops of formalin were required to be mixed to 25 grms. of milk. Therefore, about 16 drops of formalin should have been mixed by the Food Inspector to the 8 ozs. of milk instead of only 8 drops. The sample though taken on the 31st of May. 1965, was not sent to the Public Analyst before the 5th of July, 1965 and it was examined only on the 17th of August, 1965. The court below has accepted the defence contention that the analysis of the sample could not be relied upon because milk itself got spoiled due to late analysis. In support of this view it has relied on the decisions in (i) Velu Konar v. State of Madras, 1964 (2) Cri LJ 97 (Mad) and (ii) Municipal Corporation Gwalior v. Kishan Swaroop, AIR 1965 Madh Pra 180.
In Velu Konar, 1964 (2) Cri LJ 97 (Mad) the milk was examined by the Analyst after 10 months of the taking of the sample. In the other case of Municipal Corporation Gwalior there was not much delay in the examination of the milk by the Analyst, even then it was observed that as the preservative added was not adequate to prevent disintegration or damage in composition of the milk, the report of the Public Analyst could carry weight only if it could be shown that the mandatory requirements of Rule 20 were fulfilled. The decision of that case, however, did not rest only on this ground.
In Municipal Corporation of Delhi v. Ghisa Ram, AIR 1967 SC 970 the Supreme Court had occasion to consider the decision in the case of Municipal Corporation Gwalior and approved it on certain points. In the case before the Supreme Court it appears that no preservative at all was mixed to the sample of curd. There was also delay in launching of the prosecution with the result that when at the request of the accused the sample given to him was sent to the Director of the Central Food Laboratory, he reported that the sample of curd sent to him had become highly decomposed and no analysis of it was possible. The accused was acquitted by the trial court and the appeal by the Municipal Corporation was also dismissed by the Delhi Bench of the Punjab High Court. It was argued before the Supreme Court that though under the Act a certificate of the Director of the Central Food Laboratory had the effect of superseding the report of the Public Analyst, the absence of such a certificate whatsoever would not affect the value and efficacy of the certificate given by the Public Analyst. Their Lordships accepted the correctness of this proposition and observed that if in case the accused did not choose to exercise his right of sending the sample with him to the Director of the Central Food Laboratory, the case against him could be decided on the basis of the report of the Public Analyst. But as their Lordships found that the accused did choose to exercise this right and the right frustrated because of the conduct of the prosecution, they maintained the order of acquittal. They observed that different considerations might arise if the right got frustrated for reasons for which the prosecution was not responsible. From some of these observations of their Lordships of the Supreme Court it appears that in appropriate cases prosecution is possible even if no preservative is at all mixed which is against the dictum of the Madhya Pradesh. High Court in the case of Municipal Corporation Gwalior, AIR 1965 Madh Pra 180 that the report of the Public Analyst could carry weight only if it could be shown that the mandatory requirements of Rule 20 were fulfilled. In Public Prosecutor v. F. Venkataswami, AIR 1967 Andh Pra 131, a case where required quantity of preservative was not mixed to the sample, it was observed:–
“. . . . . nor there is any data on record to hold that merely because an insufficient quantity of preservative was added, the opinion of the Public Analyst on that account was liable to be ignored. . . . . I am inclined to hold that the complaint should have emanated from the Public Analyst viz., that as insufficient quantity of the preservative had been added the sample had deteriorated or that decomposition had set in with the result that the analysis could not proceed on a safe footing. There is no such complaint by the Public Analyst nor the respondent has chosen to examine the Public Analyst from this point of view.”
The learned Judge further observed that if it was the case of the accused that on account of insufficiency of preservative the sample had deteriorated, he could have availed of the provisions under Section 13 of the Act and sent the sample to the Central Food Laboratory for an opinion and he having not followed that course, there was no justifiable reason to arrive at the finding that merely because of the insufficiency of the preservative the sample had undergone a further decomposition. In the instant case also the respondent did not take any step either for the examination of the Public Analyst, or for sending the sample with him to the Director of the Central Food Laboratory for examination. In his report the Public Analyst has not said that at the time of the analysis the milk was decomposed and not fit for analysis. Therefore, the finding of the court below that as the required quantity of formalin was not mixed with the sample the respondent could not be convicted on its analysis appears to be erroneous. It, therefore appears to have erred in acquitting the respondent of the charge.
11. For the foregoing reasons, the order of acquittal passed by the Court below is set aside and the respondent is convicted under Section 16(l)(a)(i) of the Act. The offence, however, as observed in the case Municipal Board, Faizabad, AIR 1964 All 199 is technical in nature and as was done in that case, a sentence of fine of Rs. 5/- will meet the ends of justice in this case. The offence is covered by the Proviso to Sub-section (1) of Section 16 and a sentence of imprisonment is not compulsory. I accordingly sentence the respondent to pay a fine of Rs. 5/-in default to undergo simple imprisonment for one week. The appeal is accordingly allowed.
12. Before closing the judgment, how ever, I would like to observe that though
the respondent has been found technically guilty of an offence and convicted
and sentenced, it was not a case at all where the Food Inspector should have
insisted on taking sample of milk from the respondent, or the authorities of the Notified Area Committee should have sanctioned the prosecution. It has resulted in nothing but waste of courts’ time and public money in the hands of the Committee. The money in the hands of the Notified Area Committee being public money should not be wasted in such a manner.