Ramchandra Somchand Patel v. P. S. Medora — 1985 DIGILAW 277 (GUJ)

JUDGMENT : M. B. Shah, J. In all these four appeals the common question for determination is whether respondent No. 1 P.S. Medora, Managing Director of Abad Dairy, is liable to be punished under the provisions of the Prevention of Food Adulteration Act on the ground that milk samples of Toned Milk taken from four different Milk Bars of Abad Dairy on 26th and 27th May, 1981 were found to be adulterated. The question to law and facts are similar in all the four appeals and the Metropolitan Magistrate, Court No. 6, has acquitted the accused on the same grounds by his separate judgments dated 24.1.83, therefore all the four appeals are disposed of by this common judgment. 2. Criminal Appeal No. 1187/83 arises out of the judgment and order dated 24.1.83 decided by the Metropolitan Magistrate Court No. 6, Ahmedabad, in Criminal Case No. 62/81 acquitting respondents Nos. 1 to 3. Respondent No. 1 is the Managing Director of Abad Dairy, respondent No. 2 is the agent for selling milk at the Milk Bar Centre No. 308 situated near Law Garden and respondent No. 3 is the husband of respondent No. 2 who at the relevant time was sitting at the Milk Centre for selling milk. On 26.6.81 at about 5.15 p.m. the Food Inspector of Ahmedabad Municipal Corporation purchased Toned Milk from respondent No. 3 for analysis. As per the public analyst's report Toned milk was adulterated because it contained 2.4% milk fat instead of 3.0% and it contained 7.5% milk solids not fat instead of 8.50/. The Public Analyst's report is produced at Ex. 9. The report of the Director, Central Food Laboratory, is produced at Ex. 2. It states that milk fat was 0.53% and milk solids not fat was 9.6%. Therefore the sample was adulterated. 3. Criminal Appeal No. 1188/83 arises out of the Summary Case No. 60/81 decided by the Metropolitan Magistrate, Court No. 6, Ahmedabad, on 24.1.83 whereby he has acquitted respondents Nos. 1 and 2. Respondent No. 1 P.S. Medora, is the Managing Director of Abad Dairy, Gujarat Dairy Development Corporation Limited, Respondent No. 2 is the agent of the Milk Bar Centre at Gomtipur. The Food Inspector, Ahmedabad Milk Corporation, purchased the milk on 27.5.85 at about 5.25 a.m. for analysis. The Public Analyst's report is produced at Ex. 1 and 2. Respondent No. 1 P.S. Medora, is the Managing Director of Abad Dairy, Gujarat Dairy Development Corporation Limited, Respondent No. 2 is the agent of the Milk Bar Centre at Gomtipur. The Food Inspector, Ahmedabad Milk Corporation, purchased the milk on 27.5.85 at about 5.25 a.m. for analysis. The Public Analyst's report is produced at Ex. 8 which mentions that the milk was adulterated because it contained milk fat 2.4% instead of 3.0% and milk solids not fat 7.925% instead of 8.5%. As per the report of the Director, Centre Food Laboratory Ex. 2 the sample was adulterated because milk fat was 2.7% and milk solids not fat was 7.7%. 4. Criminal Appeal No. 1189/83 arises out of the judgment and order dated 24.1.83 passed by the Metropolitan Magistrate, Court No. 6, Ahmedabad, in Summary Case No. 59/81. The Food Inspector, Ahmedabad Municipal Corporation, purchased milk sample from the Milk Centre at Satangpur Dolatkhana, Ahmedabad. Respondent No. 2 is the agent of the said Centre and respondent No. 3 is her son. The Public Analyst's report is produced at Ex. 9. It states that milk sample was adulterated because it contained milk fat 2.7% instead of 3.0% and milk solids not fat 7.985% instead of 8.5%. The report of the Director, Central Food Laboratory, is produced at Ex. 2 which mentions that milk fat was 2.1% and milk solids fat was 8.5% and, therefore, the sample was adulterated. 5. Criminal Appeal No. 1191/83 arises out of the judgment and order dated 24.1.83 passed by the Metropolitan Magistrate, Court No. 6, Ahmedabad, in Summary Case No. 61/81. In this case also the milk sample was purchased by the Food Inspector on 27.5.81 from respondent No. 2 who is the agent of (he Milk Bar Centre at Bhakra Ganchi's Chawk, Rajpur, Ahmedabad, and respondent No. 3 is his son who was sitting at the Milk Centre at the relevant time. Milk was purchased at about 6.30 a.m. As per the Public Analyst's report which is produced at Ex. 8 the sample was found to be adulterated because the milk fat was 2.6% instead of 3.0% and milk solids not fat was 7.608% instead of 8.5%. The report of the Director, Central Food Laboratory, is produced at Ex. 2 which mentions that milk fat was 2.5% and milk solids not fat was 8.3%. Therefore the sample was adulterated. 6. 8 the sample was found to be adulterated because the milk fat was 2.6% instead of 3.0% and milk solids not fat was 7.608% instead of 8.5%. The report of the Director, Central Food Laboratory, is produced at Ex. 2 which mentions that milk fat was 2.5% and milk solids not fat was 8.3%. Therefore the sample was adulterated. 6. In all these cases it is an admitted fact that the milk which was analysed belonged to the Abad Dairy; that the agents of the Milk Centres were selling the milk belonging to the Dairy; that the milk which was in the possession of the Milk Bar Centre was properly stored; that the agents sold it in the same state and condition as they had brought it from the Dairy. The learned advocate Mr. Patel appearing on behalf of respondent No. 1 had admitted that the agents were selling milk of the Abad Dairy in the same condition in which they were supplied by the Dairy and that there is no dispute that it was properly stored. In this view of the matter, under section 19 of the Prevention of Food Adulteration Act, 1954, respondents Nos. 2 and 3 would not be liable to be punished under the Act. Even the learned Metropolitan Magistrate had not asked the questions on the basis that the milk which was sold by respondent Nos. 2 and 3 to the Public Analyst for analysis was from Abad Dairy and the trial had proceeded on that basis. In this view of the matter, it cannot be said that the respondents Nos. 2 or 3 is in any way liable. 7. Now, with regard to the respondent No. 1, the learned Metropolitan Magistrate has acquitted him on various grounds, but some of the grounds are now concluded by the various decisions and therefore, the said grounds of acquittal would not survive. The following grounds of acquittal are covered by the various decisions : (1) There is difference between the report of the Public Analyst and the report of the Director of Central Food Laboratory and the prosecution has failed to explain the variance. The following grounds of acquittal are covered by the various decisions : (1) There is difference between the report of the Public Analyst and the report of the Director of Central Food Laboratory and the prosecution has failed to explain the variance. Now, this view of the learned Magistrate is not legal and is covered by the decision of the Full Bench of this Court in the case of Prahladbhai Ambalal Patel v. The State of Gujarat, 1984 G.L.H. 413 The Court has held that in view of sub-section (3) of section 13 the report of the Director of Central Food Laboratory is final and it supersedes the report of the Public Analyst. The report of the Public Analyst is rendered obsolete and stands wiped out. Therefore the contents of the said report cannot themselves be relied upon by the Court for any purpose. The Court, therefore, held that in this view of the matter, it is not open to the accused to plea that if there is any variance between the aforesaid reports, the prosecution must explain the said variance or otherwise fail. (2) The prosecution has failed to prove that the Food Inspector had used formalin of 40% strength as per rule 20 of the Prevention of Food Adulteration Rules because the Food Inspector has admitted in the cross-examination that be had not verified the strength of the formalin used by him. This ground of acquittal is also not legal in view of the Full Bench decision of this Court in the case of B.M. Darji, Food Inspector v. Biharilal Karulal, 1984 G.L.H. 394 The Court has held that a Food Inspector would be dealing with samples every other day, adding formalin or other preservatives to the samples taken by him whenever such a course is called for by the Rules. For such a person it is not necessary that there should be analysis of the formalin to understand whether what he handles is formalin or not. When he uses the formalin he would necessarily know whether it is formalin or mere water or some other chemical by his acquaintance with the obvious qualities for formalin to which he would have been exposed over the years. When he uses the formalin he would necessarily know whether it is formalin or mere water or some other chemical by his acquaintance with the obvious qualities for formalin to which he would have been exposed over the years. Therefore, unless his qualifications are challenged and unless it is shown that he is not acquainted with formalin the fact that he has not proved that chemical contents of the formalin used by him cannot be taken as resulting in a failure of the prosecution. In this view of the matter, it cannot be said that there is breach of rule 20 of the Prevention of Food Adulteration Rules which would vitiates the result of the analysis or that the respondent No. 1 deserves to be acquitted on the ground that the Food Inspector has not fully complied with rule 20. It is not the case of the Public Analyst or the Director of Central Food Laboratory that the sample was not fit for analysis. (3) The learned Metropolitan Magistrate has also acquitted on the ground that there is breach of mandatory rule 9-A read with section 13(2) of the Food Adulteration Act as the Local (Health) Authority has failed to send the report of the Public Analyst immediately after institution of the prosecution to the respondents. The ground is also covered by the decision of the Supreme Court in the case of Tulsiram v. State of M.P., A.I.R. 1985 S.C. 299 where the Court has held that the real question is, was the Public Analyst's report sent to the accused sufficiently early to enable him to properly defend himself by giving him an opportunity at the outset to apply to the Court to send one of the samples to the Central Food Laboratory for analysis and the expression ‘immediately' is only meant to convey ‘reasonable dispatch and promptitude' and no more, with an idea to avoid dilatoriness on the part of officialdom and prevention of unnecessary harassment to the accused. In this view, of the matter, the acquittal of the respondent No, 1 on this point is also not proper. 8. In this view, of the matter, the acquittal of the respondent No, 1 on this point is also not proper. 8. However, in my view the learned Metropolitan Magistrate has rightly acquitted the respondent No. 1 on the ground that he was not carrying out the day-to-day management of Abad Dairy and that he was doing only general supervision because he was the Managing Director of Gujarat Dairy Development Corporation Limited. He has also acquitted him on the ground that the respondent No. 1 has proved that the offence was committed without his knowledge and that he exercised all due diligence to prevent the commission of such offence. 9. It is an admitted fact on record that Abad Dairy is a unit of Gujarat Dairy Development Corporation Limited. For day-to-day administration of the affairs of the Abad Dairy General Manager H.C. Mehta is appointed. In cross-examination the Food Inspector has admitted that he knows that Mr. Mehta is the General Manager of Abad Dairy and that he was in charge of its management. The defence witness Gajendra Manilal Shelat has deposed that he was the Manager (Marketing) of Abad Dairy at the relevant time, that respondent No. 1 at the time of trial had retired and he was appointed by the Government as the Managing Director of Gujarat Dairy Development Corporation Limited ; for day-to-day administration of the Units of Gujarat Dairy Development Corporation different Managers arc appointed ; for Abad Dairy H.C. Mehta, was appointed as the General Manager and that he was in-charge and was responsible for the conduct of Abad Dairy. It is his further say that before the milk is distributed Quality Control Officer of the Dairy keeps a check and that if the milk is of prescribed quality then and then it is permitted to be distributed for sale either through bottles, can or bags; unless the quality Control Officer of the Dairy gives a certificate that the milk was of standard quality, the milk would not be distributed. There is no reason to disbelieve the evidence of this witness. 10. The defence has also examined Bhanubhai Navghanbhai Khunti who was the Manager (Quality Control) of Gujarat Dairy Development Corporation Limited. At the relevant time he was the chemist at Abad Dairy. It is his say that on 26.5.81 quality of the milk was tested. The test reports are also produced on record. 11. 10. The defence has also examined Bhanubhai Navghanbhai Khunti who was the Manager (Quality Control) of Gujarat Dairy Development Corporation Limited. At the relevant time he was the chemist at Abad Dairy. It is his say that on 26.5.81 quality of the milk was tested. The test reports are also produced on record. 11. There is no other evidence on record to prove that respondent No. 1 was carrying out day-to-day management of the Abad Dairy. In any case, it cannot be said that the view taken by the learned Metropolitan Magistrate that the respondent No. 1 has established that the offence was committed without his knowledge and that he had exercised due diligence to prevent the commission of such offence is in any way erroneous which calls for interference in these acquittal appeals. 12. In the result, all the four appeals are dismissed. Appeals dismissed.