JUDGMENT 1. - In this appeal the judgment of Munsif and Judicial Magistrate, I class, Gangapur City, in Criminal Case No. 757/1974, by which Ramjilal accused was acquitted for the offence under Section 7/16 of the Prevention of Food Adulteration Act, has been challenged. 2. According to the prosecution, the Food Inspector, Gangapur City, took sample of milk from the accused at his shop in the morning at 8 a. m. The quantity of milk was 10 kg. After the sample was taken the same was sent for chemical analysis. According to the report of the Chief Public Analyst, Jaipur, it has been found that this milk was adulterated. 3. In order to prove the guilt against the accused, the prosecution examined the Food Inspector, P. W. I and two motbirs. P.W. 1 S. L. Santoshi is the Inspector. He stated that in Bhagola, there was about 10 kilos of milk. He gave notice Ex. P. 1 and took the sample by purchasing milk. P.W. 2 Babulal was declared hostile but he also admitted that sample was taken from the milk of accused from a Bhagola. P.W. 3 Hatilal has also corroborated this case of the prosecution. 4. The learned Magistrate has acquitted the accused on the ground that this P.W. 3 has stated that the milk was given by the accused only 10 to 5 minutes earlier and the shop of the accused was closed and that the milk was kept in a Bhagola on the road. On this ground the learned Magistrate was of the view that it was impossible to do adulteration within a short period. The learned Magistrate was also of the view that the Inspector was not careful and he was negligent. In his statement he has given some evasive answers on account of which bis attitude in the prosecution case was indifferent. 5. Mr. Soni appearing for the appellant the Municipal Board, Gangapur City, has assailed the above finding. He has relied upon the decision of Mohd. In his statement he has given some evasive answers on account of which bis attitude in the prosecution case was indifferent. 5. Mr. Soni appearing for the appellant the Municipal Board, Gangapur City, has assailed the above finding. He has relied upon the decision of Mohd. Yamin v. The State of U.P. and another A.I.R. 1973 S.C 484 , in which it has been held that : (B) Prevention of Food Adulteration Act (1954), Section 16 Case under Section 16 read with Section 7 High Court finding that Shakkar was kept by accused not for sale and for manufacturing Rab out of it as pleaded by him and further that his attempt was to sell it after mixing shalbhari with it. Assuming that the finding was wrong it would not matter when the accused actually sold it When he sold it to Food Inspector it was a sale for the purpose of Section 16. Then it was argued that the statement of the Food Inspector is sufficient to prove the sale and it is corroborated by the statement of P. W. 3 and even P. W. 2 has admitted the sale of milk to the Inspector. 6. Mr. Surana counsel for the respondent hag supported the judgment of the trial court. According to him the two motbirs P. W. 2 and P. W. 3 have stated that daughter of the accused has expired a few days before the occurrence and that the milk was lying in a Bhagola out side the shop. Mr. Surana also pointed out that the statement of Food Inspector is not satisfactory as held by the trial court. He pointed out that no interference should be made in such a matter particularly when the appeal has been filed after obtaining leave from this Court. 7. Mr Surana emphasised that since the shop was closed and the milk was taken from P.W. 3, even if there was any adulteration, it was from the side of P. W. 3 and not from the accused. According to him P. W. 3 was the real accused, if at all there was adulteration and therefore, the present accused Ramjilal should not be punished. Mr. Surana pointed out that the milk was taken for the purpose of domestic use and not for sale in the market. 8. According to him P. W. 3 was the real accused, if at all there was adulteration and therefore, the present accused Ramjilal should not be punished. Mr. Surana pointed out that the milk was taken for the purpose of domestic use and not for sale in the market. 8. I have carefully gone through the record of the case and have given a very thoughtful consideration to the rival submissions made by the learned counsel for the parties. 9. The accused in his statement has admitted the taking of sample and preparation of `Fard'. He has denied that there was any adulteration. He has stated that the milk was meant for his domestic use as that was the third day of the death of his daughter. 10. The first important question, which is to be considered is, whether it was a sale? Undoubtedly the Food Inspector gave Form Ex. P. 1 and prepared Fard Ex. P. 3. He gave form No. VI to the accused, in which it was mentioned that lie is purchasing the milk for the purpose of making investigation about the . adulteration. He paid Rs. 1.10 P. for this and took the sample in three bottles and sealed them. In my opinion, it is not very material, whether the Bhagona from which the milk sample was taken was lying in side the shop and whether the shop was open or closed. As per the statement of P.W. 3, every day milk is purchased by the accused from him for the shop. P. W. 3 has stated that on that day also he came with the milk and gave it to the accused. P.W. 3 Hatilal has further said that he brings the milk from `Dob' village and give it to the accused always. This witness further says that after 10 or 15 minutes, the Food Inspector came and took the sample. 11. It is true that in the cross examination, this witness has said that on that day the shop of Ramji Lal was not opened and Ramjilal has told him that since his daughter has expired, he would not open the shop. However, it is important to note that definition of sale under Section 16 of the Prevention of Food Adulteration Act as held authentically by Supreme Court in Mohd. Yamin's case, (referred to above) includes the sale of some item to the Food Inspector. However, it is important to note that definition of sale under Section 16 of the Prevention of Food Adulteration Act as held authentically by Supreme Court in Mohd. Yamin's case, (referred to above) includes the sale of some item to the Food Inspector. It has been laid down in Mohd. Yamin's case that when the accused sold the material to the Food Inspector it was a sale for the purpose of Section 16. In that case the defence of the accused was that he had not kept the Shakkar for sale but kept it for manufacturing Rab out of it and their fore, the conviction under Section 16 read with Section 7 of the Act was bad. Their lordships repelled the submission in para No. 9 and observed as under: "We do not think that there is any substance in this contention either Section 7 of the Act. in so far as it is material, provides : "No person shall himself or by any person on his behalf manufacture for sale, or store, sell or distribute (i) any adulterated food." Section 16, which imposes the punishment, in so far as it is relevant, says "16 (1) If any person : (a) whether by himself or by any other person on his behalf imports into India or manufactures for sale, or stores sells or distributes any article of food (it which is adulterated or misbranded or the sale of which is prohibited by the Food (Health) authority in the interest of public health." The finding of the High Court is that the Shakkar was kept by the appellant for the purpose of sale and not for the purpose of manufacturing Rab out of it and that the attempt of the appellant was to sell the Shakkar as an article of food after mixing shalbhari with it. We see no reason to think that the finding was wrong. But assuming that the finding was wrong and that the appellant kept the Shakkar net for sale but for manufacturing Rab out of it, what follows ? If Shakkar is an article of food, it does not matter whether the appellant kept it for sale, or for manufacturing Rab out it. Provided the appellant has sold it. And a sale to the Food Inspector is a sale for the purpose of Section 16 A of the Act. If Shakkar is an article of food, it does not matter whether the appellant kept it for sale, or for manufacturing Rab out it. Provided the appellant has sold it. And a sale to the Food Inspector is a sale for the purpose of Section 16 A of the Act. In the Food Inspector, Calicut, Corporation v. Charukattil Gopalan 1971 (2) SCC 322 : ( AIR 1971 SC 1725 ) this Court held that if any articles of food are sold by any person, whether he is a dealer in them or not and if the food is adulterated, he s liable to be convicted under Section 16 read with Section 7 of the Act. The respondents before this court in that case were the manager owner of a teia stall. (emphasis added) 12. In view of the above, I am of the view that irrespective of the fact whether the shop of the accused was opened or closed the fact that the sample was taken from the accused after giving the . notice in Form VI and the milk sample was taken after making purchase by payment from the Bhagona in which 10 kg. milk was lying, may be in or out side the shop, It makes out a case of sale for the purpose of Section 1/16 of the Prevention of Food Adulteration Act. 13. I am not impressed by the submissions of Mr. Surana that because of statement of P.W.3, it must be assumed that there was no chance for adulteration. In ray opinion, it is immaterial whether the adulteration was done at that very time or earlier. In case the accused sales or stores the adulterated milk he is guilty under Section 16 read with Section 7 of the Prevention of Food Adulteration Act. 14. So far as the statement of Inspector is concerned, I do not find any such infirmity in order to discredit him. The mere fact that he could not give the colour of bhagola or was evasive on the question whether tea was prepared there or not, it is not sufficient for discarding his te timony. The important crux of the case is taking of sample which has not even been disputed and rather admitted by the accused. 15. It is true that P. W. 2 has been declared hostile but nothing turns upon that. The important crux of the case is taking of sample which has not even been disputed and rather admitted by the accused. 15. It is true that P. W. 2 has been declared hostile but nothing turns upon that. In a given case, the statement of the Food Inspector alone is enough. In the present case, apart from the statement of Food Inspector, there is evidence of PW. 3 so far as taking of sample is concerned. 16. The milk (sample of which was taken from the accused) has been found to be adulterated according to the report of the Public Analyst. 17. It would be pertinent to notice here the observations of the Supreme Court in the decisions of State of Kerala etc., v. Alasserry Mohammed AIR S.C. 933 and Kassim Kunju Pookunju and another v. K. K. Ramakrishna Piliai and another 1969 CAR (SC) P. 15 . 18. In Kassim Kunju's case (Supra), the following principles were laid down by their lordships of the Supreme Court "Under Rule 7 the Public Analyst has to compare the seal on the container and the outer cover with the specimen impression received separately on receipt of the packet containing the sample for the analysis. The High Court considered that it must be presumed that the Public Analyst acted in accordance with the Rules and he must have compared the specimen impression received by him with the seal on the container." In Alasserry Mohammed's case (Supra), their Lordships of the Supreme Court also observed as under : "Rule 22 is directory and not mandatory. Applying the salutary principles of interpretation of statutes, the use of the word`shall'in sub-section (3) of S. II and in R. 22 indicates on its face that an imperative duty has been cast upon the Food Inspector to send a sample in accordance with the prescribed Rules. But the mere use of the word `shall' does not invariably lead to this result. The whole purpose and the context of the provision has to be kept in view for deciding the issue. The whole object of S. II and R. 22 is to find out by a correct analysis, subject to further verifications and tests by the Director of the Central Laboratory or otherwise, as to whether the sale of food is adulterated or not. The whole object of S. II and R. 22 is to find out by a correct analysis, subject to further verifications and tests by the Director of the Central Laboratory or otherwise, as to whether the sale of food is adulterated or not. If the quantity sent to the Public Analyst, even though it is less than that prescribed, is sufficient and enables the Public Analyst to make a correct analysis then merely because the quantity sent was not in strict compliance with the Rule will not result in the nullification of the report and obliterate its evidentiary value. If the quantity sent is less, it is for the Public Analyst to see whether it is sufficient for his analysis or not. If he finds it insufficient there is an end of the matter. If, however, he finds it sufficient, but due to one reason or the other, either because of further tests or otherwise, it is shown that the report of the Public Analyst based upon the short quantity sent to him is not trust worthy or beyond doubt, the case may fall. In other words, if the object is frustrated by the sending of the short quantity by the Food Inspector to the Public Analyst, it (ii) obvious that the case may end in acquittal. But if the object is not frustrated and is squarely and justifiably achieved without any shadow of doubt, then it will endanger public health to acquit offenders upon technical grounds which have no substance. The fact that the rule is directory and not mandatory does not, however, mean that it is open to the Food Inspector should always be cautious in complying with the rules as far as possible and should not sent a lesser quantity of sample than prescribed to the Public Analyst unless there be a sufficient reason for doing so." 19. The result of the above discussion is that I hold that the accused sold the milk to the Food Inspector and that milk has been found to be adulterated and he is guilty of section 7 read with Section 16 of the Prevention of Food Adulteration Act. 20. Mr. Surana then submitted that a period of about eight years have lapsed in between the alleged commission of the offence and the decision of this Court. 20. Mr. Surana then submitted that a period of about eight years have lapsed in between the alleged commission of the offence and the decision of this Court. He also submitted that the daughter of the accused expired earlier to this incident and the accused deserves liberal and lenient treatment.I have already taken the view in a number of cases that in cases of Food Adulterations no leniency can be made because it is social crime of serious magnitude and if affects the health of society as a whole. 21. Mr. Surana then submitted that in view of such circumstances of this case the accused should be given benefit of probation under the Probation of Offenders Act. I am not inclined to accept the request of Mr. Surana because in my opinion grant of probation to the Adulterate would be putting premium on the serious crime against the society. The prayer of Mr. Surana for grant of probation is rejected. 22. Mr. Surana then pointed out that in 1974, when this offence is alleged to have been committed, the punishment could have been less than six months in case of special reasons and lesser sentence can be awarded. 23. This position of law is not contested by Mr. Soni appearing for the Municipal Council. 24. The accused has been held to be guilty of offence of adulteration of milk. As already pointed out, I am not inclined to take a liberal view by granting the prayer for releasing the accused on probation. It is true that the accused has undergone ordeal of this litigation for about ten years but it is his own greed. How he can expect any sympathy from this Court in an offence of the present nature where he commits social crime of serious magnitude. 25. The fact that the daughter of the accused might have died three days earlier to the alleged offence is not at all a circumstance for acquitting the accused because all said and done, he was purchasing the milk from P. W. 3 regularly. The fact that the milk was supplied by P. W. 3 and on that day he also purchased from him only 10 to 15 minutes earlier, is equally not a circumstance for any benefit to the accused and for holding that he has not adulterated the milk and he is not guilty of selling adulterated milk. The fact that the milk was supplied by P. W. 3 and on that day he also purchased from him only 10 to 15 minutes earlier, is equally not a circumstance for any benefit to the accused and for holding that he has not adulterated the milk and he is not guilty of selling adulterated milk. I therefore, hold that the judgment of the trial court deserve to be reversed and in view of the facts and circumstances mentioned above the accused is found guilt of adulteration of milk under Section 7/16 of the Prevention of Food Adulteration Act and convicted accordingly. 26. As discussed above; though the circumstances pointed out above by the learned counsel are not enough for acquittal or grant of probation, I am of the opinion that the punishment of six months rigorous imprisonment only would meet ends of justice. 27. Before parting with this case, it must be made clear that offence of adulteration in milk or other food stuffs deserves exemplary deterrent punishment of few years. Such type of observations have been made by me yesterday in S. B. Cr. Appeal No. 813/1975, Nagar Parishad, Alwar v. Ganga Laheri decided on February 11, 1982 , which are as under : "Offence of adulteration in Chillies or other food stuffs deserves exemplary deterrent severe punishment of few years, at least, so not only an accused is properly punished, other citizens also realise that law would come with heavy hand and would not condone such adulterations by lenient and liberal punishments. However, in the instant case, I am making exception by punishing the accused for six months of sentence and fine of Rs. 500/-for the exceptional reasons that this appeal against acquittal relates to an offence of the year 1972 and one decade has passed in between. During this one decade, the accused must have remained constantly under the fear and apprehension of punishment in a criminal trial. But even then, letting an accused only on sentence of a fine would have put premium on his social criminal activity, because an adulterator who earns lot of money by such methods, can always afford to pay a small part of it if he can go scout free and then again, start the same nefarious activity. But even then, letting an accused only on sentence of a fine would have put premium on his social criminal activity, because an adulterator who earns lot of money by such methods, can always afford to pay a small part of it if he can go scout free and then again, start the same nefarious activity. It should not be forgotten that in a given case, a murderer commits the murder of only one person but an adulterator by such sweet poisoning of adulterated food stuffs impurest the health of thousands and lacs in the society and some times, that impairment results in creating of handicaps in children and in a remote case, there may be loss of life also. The trial magistrates should always keep themselves aware of this serious magnitude and if offence is proved on merits, then simply on technicalities of no substance, misplaced acquittals or releasing such offenders on probation or nominal sentence of fine would result only in abatement's of such crimes, in a literal sense, which they should always avoid. It is desired that in appropriate cases, deterrent exemplary punishment should be given and that would be in consonance with intention and object of this legislation. 28. The accused is therefore, awarded sentence of six months, rigorous imprisonment, as indicated above. *******