Research › Browse › Judgment

Allahabad High Court · body

1963 DIGILAW 262 (ALL)

State of U. P. v. Safri Ram

1963-10-21

C.B.CAPOOR, D.P.UNIYAL

body1963
JUDGMENT D.P. Uniyal, J. - This is an appeal by the State of Uttar Pradesh against an order dated 19-1-1962 of the Sessions Judge, Dehradun setting aside the conviction of the respondent Safri Ram under Section 16 read with Section 7 of the Prevention of Food Adulteration Act (XXXVII of 1954). 2. Safri Ram the respondent used to supply milk to the Doon School at Dehradun. On the 3rd October, 1960 at about 6:30 A.M. Sri Anand Swarup Gupta, Food Inspector of the City Board, Dehradun, purported to purchase 12 chhataks of buffalo's milk as sample from the vendor. After preparing three samples of the same he offered one of them to the vendor who refused to take it. One of the samples was sent by the Food Inspector to the Public Analyst for report. The report of the Analyst dated 7th November, 1960 was to the following effect: 1. Fat..............5.4% 2. None-fatty solids 8.0% (milk solids others than milk fat). The Public Analyst was of opinion that the sample of "milk buffalo" was deficient in fat content by about 10% and was also deficient in non-fatty solids content by about 11%. 3. The Medical Officer of Health, City Board, Dehradun, then filed a complaint against the respondent on the allegation that he was found selling adulterated buffalo's milk and was, therefore, liable to be punished under Section 16 read with Section 7 of the Act. 4. The respondent pleaded not guilty and stated that what he had sold to the Food Inspector was not buffalo's milk but Cow's milk. The statement of Sri J. A. K. Martyn P. W. 6 was clearly to the effect that the sample taken by the Food Inspector was not from the main supply, that is buffalo's milk, but from can which contained cow's milk, Thus on the prosecution's own evidence it was established that what had been sold by the vendor to the Food Inspector was not buffalo's milk but cow's milk. Accordingly we are of opinion that the finding recorded by the learned Sessions Judge that the Food Inspector had not taken the sample from the main supply and that it had been taken from a can containing cow's milk is fully justified. 5. Accordingly we are of opinion that the finding recorded by the learned Sessions Judge that the Food Inspector had not taken the sample from the main supply and that it had been taken from a can containing cow's milk is fully justified. 5. It was contended on behalf of the State that even if the finding of the learned Sessions Judge that the sample purchased by the Food Inspector was in respect of cow's milk were accepted, the sample was adulterated inasmuch as there was a deficiency of 0.5% in respect of milk solids other than milk fat as prescribed by the rules. 6. Rule 5 framed under the Prevention of Food Adulteration Act provides that the standards of quality of various articles of food shall be those mentioned in Appendix B to those Rules. Item A 11.01.01 reads as follows: "Cow milk shall contain not less than 3.5% of milk fat, except in Orissa where it shall be not less than 3%, and in Punjab and PEPSU where it shall not be less than 4.0%. The milk solids other than milk fat shall not be less than 8.5%." 7. It would appear from the report of the Public Analyst that although the content of milk fat was not less than that prescribed in the above paragraph, there was deficiency in regard to milk solids other than milk fat to the extent of 0.5%. Thus there can be no doubt that cow's milk supplied by the vendor to the Food Inspector was adulterated. 8. The learned judge appears to have failed to appreciate the effect of the above Rule and observed that "In this case the report of the Public Analyst shows that the milk fat is 5.4% and the milk solids other than milk fat is 8.0 per cent." There was no question of any deficiency in the contents of milk fat. The argument of the prosecution related to deficiency in the matter of milk solids other than milk fat. The learned judge failed to appreciate this part of the case which resulted in his recording an erroneous finding that there was no adulteration. 9. The argument of the prosecution related to deficiency in the matter of milk solids other than milk fat. The learned judge failed to appreciate this part of the case which resulted in his recording an erroneous finding that there was no adulteration. 9. It was contended on behalf of the respondent that the prosecution had committed breach of Section 11 (2) of the Act in that the vendor in the present case had declined to accept one of the parts of the sample and, therefore, it was obligatory on the part of the Food Inspector to send intimation to the Public Analyst of such refusal. Further, that if such intimation had been sent to the Public Analyst the latter would have decided the sample sent to him into two equal parts and preserved one of such parts and sent it along with his report to the court. In this case the omission on the part of the Food Inspector to intimate the refusal of the vendor to take a sample of the milk to the Public Analyst had resulted in the breach of a mandatory provision of Section 11 and, therefore, proceedings against the respondent were vitiated. 10. We are of opinion that the contention is not well founded. The short answer to the objection of the respondent is that he never challenged the report of the Public Analyst at any stage. If he had done so it may have been open to him to argue that the part of the sample which it was obligatory on the part of the Public Analyst to send to the court was not available for further examination by the Director of Central Food Laboratory. No such question can arise in this case when the respondent contented himself with the report of the Public Analyst and did not raise any objection as to its validity. We are, therefore, clearly of the view that the non-observance of the provisions of Section 11 did not in any way effect the merits of the case against the respondent. 11. This appeal, therefore, succeeds. The order of acquittal passed by the learned Sessions Judge is set aside and the respondent is convicted under Section 16 read with Section 7 of the Prevention of Food Adulteration Act. 11. This appeal, therefore, succeeds. The order of acquittal passed by the learned Sessions Judge is set aside and the respondent is convicted under Section 16 read with Section 7 of the Prevention of Food Adulteration Act. In view of the fact that the prosecution was largely to blame in launching the prosecution on entirely wrong facts, we consider that a nominal sentence would suffice. While convicting the respondent we sentence him to a fine of Rs. 200/-. In default of payment of fine he shall undergo two months' imprisonment.