Judgment :- This Criminal Appeal is directed as against the Judgment of acquittal dated 12.01.1996, passed in C.C.No.368 of 1991, by the learned Judicial Magistrate No.3, Tiruchirapalli. 2. A resume of facts which are absolutely necessary for the disposal of this Criminal Appeal would run thus:- The Food Inspector, Srirangam Municipality, on 20.03.1991 at about 7.00 a.m., went to the shop bearing Door No.78 T, Ammamandapam, where the milk and coffee were being sold by one Murali/Accused-2, Son of Srinivasan to the public. 3. Hewas in possession of boiled mixed milk, so to say Cow milk and buffalo milk. The Food Inspector, collected 750 ml of such milk after paying a sum of Rs.3/-in the presence of witness. Thereafter, in the presence of witness, the said collected milk was divided into three equal parts, after it was cooled and those three parts were poured in three glass bottles and 20 drops of formalin were added to each bottle of milk and those bottles were tightly closed and packed as per procedure prescribed. The seals were also put on those bottles and labelled properly. Signatures were also obtained from the accused and the witness. 4. The statement of the accused was also recorded by the Food Inspector in the presence of witness and at that time, the said Murali disclosed, that the owner of the shop at the relevant time was Swaminathan(A1), for whom Form VI was sent after duly filled up and the signatures of the accused and the witness were also obtained. One of the three parts of the sample along with Form VII and a separate impression of seal was sent through Railway parcel to the Public Analyst, Palayamkottai for analysis and report. One another similar sample was sent to the Public Analyst at Guindy, Madras. On receipt of the Analysis Report it is found that the milk was an adulterated one and hence,the Food Inspector has filed a complaint. 5. Thereupon the Court adhering to the provisions of the Code of Criminal Procedure, dealt with the matter. The accused pleaded not guilty. Trial was conducted, during which, the Food Inspector was examined as P.W.1 but he was not cross examined. Exs.P1 to P14 were marked. No oral or documentary evidence was adduced on the defence side. The trial Court ultimately acquitted the accused. 6. The accused pleaded not guilty. Trial was conducted, during which, the Food Inspector was examined as P.W.1 but he was not cross examined. Exs.P1 to P14 were marked. No oral or documentary evidence was adduced on the defence side. The trial Court ultimately acquitted the accused. 6. Being aggrieved by the Judgment of acquittal of the trial Court, the State preferred this appeal on the following grounds among others. i. The Judgment of the Trial Court is against law. ii. The Trial Court wrongly held that the Food Inspector was not Competent to launch the prosecution. iii. The Honourable Supreme Courts decision reported in 1996 SCC (Cri) 254 (Suresh H.Rajput v. Bhartiben Pravinbhaisoni) lays down the correct legal position but the trial Court did not consider it. iv. The trial Court based on the evidence ought to have come to the conclusion that the milk was an adulterated one and convicted the accused. v. The trial court ought to have held that the Food Inspector complied with all procedural formalities relating to this matter. vi. The trial Court erroneously acquitted the accused. 7. Accordingly, the appellant prays for setting aside the Judgment of the trial Court and for convicting the accused. 8. The Points for determination are:- i. Whether the Food Inspector was competent to file the complaint before the Magistrate Court after initiating action under the Prevention of Food Adulteration Act and Rules? ii. Whether the milk was an adulterated one and if so, what offence was committed by the accused? iii. Whether the Judgment of the acquittal is liable to be set aside? iv. The perusal of the Judgment of the trial Court, to say the least, does not conform to the standard as expected legally. 9.The learned Magistrate would refer to the decision of the Madras High Court, reported in 1987 Law Weekly (Criminal) 86 as follows:- "The Madras High court – State by Food Inspector Tirunelveli Municipality represented by Public Prosecutor Vs. (1) Muthu, (2) Adinarayanan Maheswaran.J – 20th July, 1987/Crl.App.No.387/84." 10. But in 1987 Law Weekly (Criminal) 86, no such Judgment could be traced and it is not known as to how the learned Judicial Magistrate could cite such a decision and he also went on narrating, as though an appeal was filed by the State of Tamil Nadu, but it was rejected by the Honourable Supreme Court. But in 1987 Law Weekly (Criminal) 86, no such Judgment could be traced and it is not known as to how the learned Judicial Magistrate could cite such a decision and he also went on narrating, as though an appeal was filed by the State of Tamil Nadu, but it was rejected by the Honourable Supreme Court. I am at a loss to understand how without any basis, the learned Magistrate could put forth such sort of discussions in the Judgment. The citation relied on and the Magistrates own version about the alleged appeal filed by the State, before the Apex Court are all turned out to be imaginary and quite contrary to the reality, for the reason that there is no such Judgment at all reported in 1987 Law Weekly (Criminal) 86 and in such a case, as against which there could not have been any appeal to the Supreme Court also and there would have been no necessity for the Honourable Supreme court to reject it. 11. At this juncture, the following decision of the Honble Apex Court could fruitfully be referred to Suresh H.Rajput v. Bhartiben Pravinbhai Soni in (1996 SCC (Cri) 254) An excerpt from the said decision would run thus:- "14. In appeal @ SLP (Crl.)No.1924 of 1992, the learned Magistrate had further held that the Food Inspector did not have training for required number of days and that, therefore, he was not competent to take the samples. We find that the Magistrate illegally proceeded on that assumption. The qualifications of the Food Inspector cannot be challenged in collateral proceedings. What is material is whether the food Inspector had taken the samples in accordance with the provisions of the Act or the rules made thereunder. In case the Court finds that if he committed any contravention, what would be its effect on the prosecution is a matter to be considered but his qualifications cannot be looked into when he lays the prosecution for adulteration of the articles of food under the Act." (emphasis supplied) 12. The above extract would clearly show that when the offence has been proved from the evidence adduced, the accused cannot be acquitted on the technical ground that the Food Inspector did not have required training and that he was not competent to take samples. The above extract would clearly show that when the offence has been proved from the evidence adduced, the accused cannot be acquitted on the technical ground that the Food Inspector did not have required training and that he was not competent to take samples. In this case, even though, the evidence on record clearly point towards the guilt of both the accused, the trial Court misdirected itself and acquitted the accused. 13. It is to be highlighted that P.W.1, the Food Inspector, who was examined as P.W.1, was not at all cross examined relating to his competence to initiate action under the Prevention of Food Adulteration Act and Rules and to lodge the complaint, despite the fact that in the complaint itself, the Food Inspector had set out the following facts:- "With effect from 1st June 1955 the Prevention of Food Adulteration Act 1954 (Central Act 37 of 1954) has been extended throughout India except the State of Jammu and Kashmir as per government of India Notification No.F 9-4-55/D dated 9th May 1955 in the Gazette of India dated 21st May 1955 page 874 Part II, Section 3. The Municipal Health Officer, and Sanitary Inspector/health Inspector, Executive Officer, Panchayat Board have been appointed as Food Inspectors under the Act vide Notification in G.O.3591, Health dated 26.11.1955 published in page 628, Part I-A, Fort St. George Gazette dated 7-12-1955. The Food Inspector has been authorised to give consent for prosecutions as required in Section 20 (1) of the Act-Notification in G.O.No.542 Health dated 14-2-1956 published in page 152 Part I-A of Fort St. George Gazette dated 22-2-1956." 14. It is quite obvious in criminal cases unlike Civil cases, at the beginning of the case itself no statement need be filed by the accused and in such a case during cross examination, if at all the accused is having a defence of his own, he should put forth it. Not even a memo was filed during the trial, questioning the competence of the Food Inspector. In such a case, all in a sudden the accused cannot during argument stage raise the question of competence of the Food Inspector as it is a mixed question of law and fact. If it is a pure question of law, it can be raised. In such a case, all in a sudden the accused cannot during argument stage raise the question of competence of the Food Inspector as it is a mixed question of law and fact. If it is a pure question of law, it can be raised. But in this case, there is no pure question of law involved and that too, in the wake of the Food Inspector in the complaint itself as set out supra narrated in detail his competence. Over and above that in his deposition also at the beginning itself, the Food Inspector as P.W.1., narrated about his competence. Inasmuch as, the accused even though were defended by an advocate of their own choice did not opt to cross examine P.W.1, the Food Inspector. The deposition of P.W.1 remained unchallenged and hence proved. It is crystal clear that the learned Judicial Magistrate misdirected himself and acquitted the accused. 15. Accordingly, this point is decided in favour of the State. POINT NO:2. 16. The discussion supra would show as to how P.W.1, the Food Inspector was not at all cross examined as the accused opted not to cross examine him. In such a case, the version of P.W.1, remains unchallenged and despite that the learned Judicial Magistrate, in Para No.7 of his Judgment, referring to a Judgment reported in 1998 FAJ 367 but without discussing it, held that for boiled milk there was no standard prescribed. Such a discussion and finding by the trial Court Judge are totally erroneous and quite antithetical to that extant laws and rules. 17. The learned Magistrate has not even cared to read Ex.P11, the Public Analyst Report, which clearly describes about the adulteration. An excerpt from Ex.P.11 is extracted here under for ready reference:- "I further certify that I have caused to be analysed the aforementioned sample and declare the result of the analysis to be at follows:- The sample was preserved with formalin. No change had taken place in the constitution of the sample. The sample was mixed well before analysis. Analysis done Results of Analysis Standards prescribed under item A.11.01.05.A read with a.11.01.11 in Appendix .B to the Prevention of Food Adulteration Rules 1955 for Boiled Mixed Milk. 1. Milk Fat 3.9 Percent Minimum 4.5 per cent. 2. Milk Solids Not Fat 7.5 Percent Minimum 8.5 per cent. The sample was mixed well before analysis. Analysis done Results of Analysis Standards prescribed under item A.11.01.05.A read with a.11.01.11 in Appendix .B to the Prevention of Food Adulteration Rules 1955 for Boiled Mixed Milk. 1. Milk Fat 3.9 Percent Minimum 4.5 per cent. 2. Milk Solids Not Fat 7.5 Percent Minimum 8.5 per cent. And I am of the opinion that the sample does not confirm to the standards prescribed for Boiled Mixed Milk with respect to the Milk, Fat content and the Milk Solids Not Fat Content as they are less than the minimum prescribed limits. Hence, the sample is adulterated." 18. The learned Magistrate at least on seeing the report could have very well referred to the Food Adulteration Act and Rules, and got himself ascertained the true position that even in respect of boiled mixed milk, standard was prescribed as per the Prevention of Food Adulteration Act and Rules. The relevant portions of Appendix-B would read thus:-"(A.11.01.05-A-Mixed Milk means a combination of milk of cow, buffalo, sheep, goat or any other milch animal an may be combination of any of these milk which has been made and conforms to the standards given in the table below Item A.11.01.11).A.11.01.11- The standards of different classes and designation of milk shall be as given in the table below. Milk shall conform to both the parameters for milk fat and milk solids not fat, independently, as prescribed in Column (4) and (5) of the said table." 19. Even though the above said provision and the analyst report are obviously and apparently, explicitly and candidly demonstrate the legal position, yet the learned Magistrate for reasons best known to himself has chosen to simply acquit the accused without application of mind and such a practice is deprecated and it should be condemned in unmistakable terms. It is therefore, crystal clear that the prosecution even though proved the case beyond reasonable doubt and that too with clinching scientific evidence, yet the trial Court, acquitted the accused quite against the provisions of law underservedly. 20. The learned counsel for the respondents would contend that the trial Court did not decide the entire case on merits, but acquitted the accused only on the finding that the Food Inspector had no powers to collect the samples and proceed with the matter. 20. The learned counsel for the respondents would contend that the trial Court did not decide the entire case on merits, but acquitted the accused only on the finding that the Food Inspector had no powers to collect the samples and proceed with the matter. The learned counsel for the appellant would also argue that the trial Judge simply referred to a precedent relating to the fact that for boiled milk, there was no standard prescribed and that he himself did not decide on merits that point. 21. The submissions made by the learned counsel for the respondents do not carry conviction with this Court, for the reason that the trial Court applied its mind relating to the adulteration aspect, which happens to be the subject matter of this case. The learned trial Judge by discussing the precedent virtually agreed to the fact that for boiled milk, there was no prescribed standard and thereby the trial Court arrived at the wrong conclusion. It is too late in the day to argue that the trial Court did not acquit the accused on merits. The over all reading of the Judgment would lead to no other conclusion except to the one that it was a Judgment on merits, passed by the trial court, but erroneously. 22. The learned counsel for the respondents also would submit that after more than a decade and a half, the acquittal recorded by the trail Judge might not be disturbed. In support of his argument, the learned counsel cited the decision of the Madras High Court reported in 1992 L.W (Crl.) State by Food Inspector, Virudhunagar Municipality Vs. Kumaresan. An excerpt from the said Judgment would run thus: "15. In support of his argument, the learned counsel cited the decision of the Madras High Court reported in 1992 L.W (Crl.) State by Food Inspector, Virudhunagar Municipality Vs. Kumaresan. An excerpt from the said Judgment would run thus: "15. The question that now looms large is as to whether the verdict of acquittal, which remained for quite a long period, could be disturbed by the reversal of the finding of the learned trial Magistrate, as stated above, Taking into account the fact that the respondent/accused had been facing the mental agony of the Damocles Sword of prosecution hovering over his head, right from the day of taking of the samples, till upto the time of rendering of the verdict of acquittal and again from the time of subsequent proceeding by way of appeal against acquittal till to-day, I feel it would not besides justice in not disturbing the verdict of acquittal, despite the fact that the finding of the trial Magistrate, on which the verdict of acquittal is based is set aside. I, therefore, allow he verdict of acquittal to remain as it is, without being disturbed, in the peculiar circumstances of the case". 23. A perusal of the Judgment would show that it was not a precedent, which the learned Judge wanted to lay down as a rule to be followed in all cases. 24. I am of the view that in socio-economic matters of this nature, the time lag alone cannot be the criterion and the learned Judge also in the aforesaid Judgment did not intend that the law should be in support of not interfering with the conviction, whenever there is a delayed disposal of the appeal by the appellate court, including the High court. The Honourable Apex Court in a catena of the decisions held that socio-economic offences should be dealt with properly and sternly and that too, where the minimum imprisonment is contemplated in such offences. 25. In this connection, the decision of the Apex Court could rightly be cited by the learned counsel for the appellant reported in 1988 4 SCC 130 (Braham Dass Vs. State of Himachal Pradesh). 25. In this connection, the decision of the Apex Court could rightly be cited by the learned counsel for the appellant reported in 1988 4 SCC 130 (Braham Dass Vs. State of Himachal Pradesh). An excerpt from the said decision would run thus: "5.Coming to the question of sentence, we find that the appellant had been acquitted by the trial Court and the High court while reversing the Judgment acquittal made by the appellate Judge has not made clear reference to clause (f). The occurrence took place about more than 8 years back. We do not find any useful purpose would be served in sending the appellant to jail at this point of time for undergoing the remaining period of the sentence, though ordinarily in an anti-social offence punishable under the Prevention of food Adulteration Act the Court should take strict view of such matter. 6. While dismissing the appeal, we would however, limit the sentence of imprisonment to the period already undergone and sustain the fine along with the default sentence." 26. In the light of the decision of the Honourable Supreme Court, cited on the side of the appellant, which is a self explanatory one, wherein it is held that even in a case where 8 years elapsed, the Honourable Supreme Court upheld the order of the Honourable High court in reversing the judgment of acquittal. However, it was viewed that the imprisonment already undergone was sufficient. But in this case, there is no such imprisonment already undergone. The Honourable Supreme Court also mandated that a strict view should be taken in Food adulteration cases. 27. As such taking a cue from the Judgment of the Honourable Supreme court, it could rightly be understood that in Food adulteration matters, the Appellate Court based on time factor only should not refrain from reversing the Judgment of acquittal and convicting the accused. 28. The learned advocate for respondents submitted that witness for the collection of sample was not examined. It could be stated that the respondents accused consciously has chosen not to cross examine P.W.1, the Food Inspector and he has not challenged the collection of the samples of such boiled milk. 29. 28. The learned advocate for respondents submitted that witness for the collection of sample was not examined. It could be stated that the respondents accused consciously has chosen not to cross examine P.W.1, the Food Inspector and he has not challenged the collection of the samples of such boiled milk. 29. Hence to the risk of repetition, I would state that the accused has also not chosen to challenge the methodology adopted by P.W.1 in the collection of sample and sending it to the Analyst and getting the report. Hence, I am having no hesitation in recording a finding of guilt as against both the accused, so to say as against the accused No.1. being the owner of the shop and the Accused No.2, the seller of the adulterated milk for the offence punishable under Section 16(1)(a)(i) of the Prevention of Food Adulteration Act and accordingly I set aside the Judgment of acquittal of the trial Court. I hold each of the Accused No.1, being the owner of the shop and the Accused No.2 being the seller of the adulterated milk guilty of the offence punishable under Section 16(1)(a)(i) of Prevention of Food Adulteration Act. It is obvious that the said Penal Section contemplates a sentence of minimum six months imprisonment and fine of Rs.1,000/-and accordingly each of Accused 1 & Accused 2 is sentenced to undergo rigorous imprisonment for six months and to pay a fine of Rs.1000/-, in default to undergo rigorous imprisonment for one month. 30. With heavy heart, I record here that this case being a socio-economic offence, the learned Judicial Magistrate ought to have bestowed proper attention in dealing with it, but he failed to do so. The trial Court shall issue Non Bailable Warrant as against the Accused Nos.1 & 2, so as to secure their presence and send them to jail to undergo the sentence. The trial Court shall issue Non Bailable Warrant as against the Accused Nos.1 & 2, so as to secure their presence and send them to jail to undergo the sentence. Crl.A.No.437 of 1997 CERTIFICATE OF FITNESS ISSUED UNDER ARTICLE 134-A OF THE CONSTITUTION TO PREFER APPEAL AS AGAINST THE JUDGMENT IN CRL.A.437 OF 1997 On pronouncement of the judgment in the open Court, learned counsel for the respondents/accused made an oral application seeking a certificate of fitness to prefer appeal, so as to enable the respondents/accused to prefer an appeal to the Supreme Court on the main ground that there is a decision of a learned Single Judge of this Court in a previous case refraining from reversing a judgment of acquittal into one of conviction on the ground of lapse of time despite the finding that the accused was guilty, but in this case, despite lapse of several years, now conviction has been recorded and sentence imposed. I have taken the oral application of the learned counsel for the respondents as one under Article 134 (1)(c) of the Constitution and I certify this case as a fit one for appeal to the Honble Supreme Court on the following grounds. A learned Single Judge of this Court in his judgment referred to by me supra, refrained from reversing the judgment of acquittal by the trial Court on the sole ground that number of years elapsed since the time of acquittal. I disagreed with that view because I considered that the learned Judge did not lay it down as a precedent but I relied on the judgment of the Honble Apex Court cited in my judgment and recorded the conviction and imposed the sentence. Since there is no precedent on the specific point relating to refraining from reversing the order of acquittal based on lapse of time alone in socio-economic offences, I consider this as a fit case for appeal to the Honble Supreme Court of India.