ORDER Hari Swarup, J.
1. This revision has been filed by Kishan Narain against his conviction under Section 7/16 of the Prevention of Food Adulteration Act and sentence of six months' R. I. and a fine of Rs. 1,000/- awarded to him for the offence. Along with Kishan Narain. one Ram Go-pal was also prosecuted, but he was acquitted by the trial Court.
2. The case for the prosecution, in brief, was that a complaint had been received from the Civil Surgeon in the Municipal Board (Health Section) to the effect that the milk supplied to the Women's Hospital, the local District Hospital, T. B. Hospital and District Jail by and on behalf of the contractors was of substandard quality and adulterated. On this complaint being received the authorities directed Sri R. N. Dube. the Food Inspector to do the needful and check the milk. On 22-7-1969 at about 11 A. M.. the Food Inspector went to the Women's1 Hospital and saw Ram Gopal coming with milk and delivering it into the hospital mess to the _Mess-Incharge. Paras Ram Gupta. On his coming out of the mess he asked Ram Gopal to give a sample of milk to him. The sample was taken by the Food Inspector. He paid 75 paise as price of 660 millilitre milk. Thereafter the milk was divided into three parts and sealed in three bottles. One bottle was given to Ram Gopal, and another was sent to the Public Analyst for analysis. It was found to contain 3,5% fat and 4.6% non-fatty solids. The sample judged by the standard for cow milk was thus deficient in non-fatty solid contents by about 56%.
3. At the time the sample was taken Ram Gopal gave out that he had brought the milk for supply on behalf of Kishan Narain who was the contractor and the supplier. It was on this basis that the notice was given to Ram Gopal as delivering the milk on behalf of Kishan Narain.
4. The Food Inspector made enquiries at the spot and Parasram Gupta told him that Ram Gopal used to supply milk on behalf of the contractor Kishan Narain. A register was also shown to the Food Inspector which showed that Kishan Narain was contractor for supplying the milk in the hospital. On the basis of the information received by the Food Inspector and on the basis of the result of the analysis made by the Public Analyst, a complaint was filed against both Kishan Narain and Ram Gopal.
5. Against Ram Gopal a charge was framed charging him for selling and exhibiting for sale adulterated milk. The charge against Kishan Narain was to the following effect:
That you on 22-7-1969 at about 11.00 A.M.. being a contractor to supply milk to District Ladies Hospital Etawah, supplied milk in the District Ladies Hospital Etawah through your servant Ram Gopal and that on the examination of the sample taken from your servant's milk, it was found to be adulterated as per Public Analyst's report...
6. Both the accused pleaded not guilty. Kishan Narain admitted that he was the contractor but denied to have supplied the milk through Ram Gopal as alleged by the prosecution.
7. The prosecution examined R. N. Dube, the Food Inspector, paras Ram Gupta, the Mess-Incharge and compounder of the Women's Hospital, and Ajmat Ali Khan a Sanitary Jamadar who had accompanied the Food Inspector. The trial court believed the prosecution version and held that the supply of adulterated milk in the hospital was by Kishan Narain through Ram Gopal and while convicting Kishan Narain acquitted Ram Gopal thinking that the liability was only of Kishan Narain and not of Ram Gopal who was found by the court to be his servant. In appeal filed by Kishan Narain the Lower Appellate Court again considered the evidence and upheld the conviction of Kishan Narain.
8. The documentary evidence produced by the prosecution about taking off sample and the sample being found adulterated has been found sufficient to corroborate the testimony of the Food Inspector that the milk delivered by Ram Gopal was adulterated. learned Counsel for the accused has not even thought of challenging the finding on this issue. His contention is that the evidence produced in the case may have been sufficient for establishing the guilt against Ram Gopal but there was no evidence, and at least not sufficient evidence, to justify the conviction of Kishan Narain. The main attack is on the judgment of the courts below where they have placed reliance on the statement of Ram Gopal made to the Food Inspector to the effect that he was supplying the milk on behalf of Kishan Narain. The second attack of the learned Counsel is against placing reliance on the evidence of Parasram Gupta. The contention of the learned Counsel in respect of both these matters has force. Learned Government Advocate tried to justify the admissibility in evidence of the statement made by Ram Gopal about his supplying milk on behalf of Kishan Narain on the basis of Section 30 of the Evidence Act. Section 30 however deals with oases of confessions, the statement of Ram Gopal cannot be deemed to be a confession as he has not confessed guilt but had only tried to fasten the guilt on the co-accused and strictly speaking, he has not admitted the guilt. The statement of Ram Gopal cannot thus be treated as substantive evidence in the case.
9. Parasram Gupta went back on the statement made by him in the examination-in-chief and was accordingly cross-examined by the prosecution. In view of the law declared in Jagir Singh v. The State (Delhi Administration). . the testimony of this witness cannot be relied upon. We are thus left with the sole testimony of the Food Inspector R. N. Dube and the surrounding circumstances. According to the Government Advocate that evidence coupled with circumstantial evidence which has come in the case is sufficient for upholding the conviction of the applicant Kishan Narain, According to Section 167 of the Indian Evidence Act reversal of the decision and the-new trial can be ordered only if it appears to the Revisional Court where the objection to the admissibility is raised, that, independently of such evidence objected to and admitted, there was (no ?) sufficient evidence to justify the decision or the conviction. learned Counsel for the parties has thus placed the evidence in the case for my consideration.
10. Section 7 of the Prevention of Food Adulteration Act 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 of the Act provide:
If any person
(a) Whether by himself or by any person on his behalf imports into India or manufactures for sale, or stores, sells or distributes, any article of food in contravention of any of the provisions of this Act or of any rule made thereunder, or...
Kishan Narain can be held guilty only if it could be proved that he was the person on whose behalf Ram Gopal had supplied milk to the Women's Hospital or had given the sample to the Food Inspector by way of sale.
11. In order to determine whether Kishan Narain was guilty, it would be helpful to keep in mind, the observations in the case of Bhagwan Das v. Delhi Administration and the observations from the judgment in State of A. P. v. Ganeshwara Rao. quoted in Bhagwan Das's case. In the present case the gravamen of the charge is the supply of adulterated milk by Kishan Narain through the agency of Ram Gopal. The whole thing, according to the prosecution, consists of a single transaction. Discussing the meaning of the words 'same transaction' in the State of A. P.'s case (supra), it was observed:
But. it is generally thought that where there is proximity of time or place or unity, of purpose and design or continuity of action in respect of series of acts, it may he possible to infer that they form part of the same transaction. It is, however, not necessary that every one of these elements should co-exist for a transaction to be regarded as the same. But if several acts committed by a person show a unity of purpose or design that would be a strong circumstance to indicate that those acts form part of the same transaction.
Further, it was observed:
Now, a transaction may consist of an isolated act or may consist of a series of acts. The series of acts which constitute a transaction must of necessity be connected with one another and if some of them stand out independently, they would not form part of the same transaction but would constitute a different transaction or transactions.
After quoting the observations from the earlier judgment, in Bhagwan Das's case (supra), it was held:
In our opinion, considering the character of the offence and the nature of the activities of manufacturers and distributors, who generally deal in bulk, and of the ordinary vendor, who sells particular items to the consumer, the common link which could provide the unity of purpose or design so as to weave their separate acts or omissions into one transaction, has to be their common intention that a particular article, found adulterated, should reach the consumer as food....... In: such a case of strict liability created by statute, for safeguarding public health, the mental connection between the acts and omissions of the manufacturer, the distributor and the last vendor would be provided simply by the common design or intention that an article of food, found to be adulterated, should reach and be used as food by the consumer. Each person dealing with such an article has to prove that he has shown due care and caution by taking prescribed steps in order to escape criminal liability. Otherwise, if one may so put it, a menses shared, by them is presumed from a common carelessness exhibited by them. Again, a sale at an anterior stage by a manufacturer or distributor to a vendor, and the sale by the vendor to the actual consumer could be viewed as linked with each other as cause and effect-
The prosecution had thus to establish that there was a link between the supply of milk in the hospital with the appellant Kishan Narain. If the circumstances of the case can establish that link, the applicant would be guilty.
12. It is not denied that Kishan Narain was the contractor for supplying the milk to the Women's Hospital. Civil Surgeon's complaint that Kishan Narain contractor was supplying substandard milk to the Women's Hospital has been proved. The Food Inspector had made a statement that Ram Gopal was carrying milk and had actually supplied the milk in the Mess of the Women's Hospital to Para ram Gupta, the Mess-Incharpe. and thereafter near the mess he had taken the sample for analysis from Ram Gooal from the milk can he was carrying. His testimony is corroborated by Sabir Hussain Khan. The Food Inspector had asked the lady doctor to be a witness but as she was busy, she had directed that Paras Ram Gupta, Mess-Incharge may be taken as a witness. He, however, turned hostile. The record of the Hospital which was examined by the court below disclosed that there was supply of milk on 21-7-1969 as well as 23-7-1969, but the column for supply of milk on 22-7-1969 was blank, Accused Kishan Narain was the person who had to supply milk regularly to the hospital. Once the contract is given no one else can make the sale or supply. Kishan Narain had the sole right and responsibility of selling milk to the hospital. It has neither been pleaded nor proved by Kishan Narain that he had sent milk on 22-7-1969 through any person other than Ram Gopal. The delivery of milk in the hospital mess by Ram Gopal has been proved by the Food Inspector. The absence of entry in the Register by the Mess-Incharge Parasram Gupta who turned hostile in the witness-box cannot be sufficient to cast any doubt on the testimony of the Food Inspector. Ram Gopal was found to have no licence for selling milk. In his examination in the court Kishan Narain has admitted that he was the Thekedar or contractor for supplying milk to the hospital. He has not stated that he was neither not to supply milk on 22-7-1969 or had supplied it otherwise. These circumstances taken cumulatively can lead to no other inference except the inference that the milk delivered by Ram Gopal in the mess of the Women's Hospital on 22-7-1969 and which was sold to the Food Inspector was a supply and sale on behalf of and by the contractor Kishan Narain.
13. learned Counsel for the accused has contended that there is no direct or positive evidence to show that the milk in question was given by Kishan Narain to Ram Gopal. Of course, there is no such evidence, but the absence of direct evidence cannot make the conviction invalid, if there is sufficient circumstantial evidence to establish the guilt. In the present case, the circumstantial evidence is to the effect that Kishan Narain was the contractor, which would mean that he alone had the right and obligation to supply milk in the hospital; milk was being supplied in the hospital regularly every day, and milk was delivered also on 22-7-1969 in the mess of the hospital to the Mess Incharge: Ram Gopal had no authority to deliver his milk into the hospital mess, and would not deliver it as the payment for the supply would naturally go to contractor Kishan Narain and not to him. The milk supplied and sold by the Ram Gopal must, therefore, have been of Kishan Narain and the delivery of milk must have been made by him on behalf of Kishan Narain.
14. learned Counsel also contended that there was a possibility of the milk being adulterated by Ram Gopal during the course of his delivering the same to the hospital. No such case was ever taken in defence. Kishan Narain had denied any connection with Ram Gopal. In cross-examination also no such question was put. There is thus no material for presuming that the milk supplied by Kishan Narain had been adulterated on the way by Ram Gopal. The testimony of the Food Inspector corroborated by that of Sabir Hussain who had also stated that Ram Gopal had delivered the milk in the hospital mess, coupled with the circumstances appearing in the case is sufficient for upholding the conviction of the applicant. The conviction cannot therefore, be quashed simply because the courts below had relied on the informational statement of the co-accused made before the Food Inspector and the testimony of Parasram Gupta.
15. learned Counsel has also contended that Rule 20 of the Prevention of Food Adulteration Rules was violated in the present case, and accordingly it cannot be held that the milk was adulterated. The contention is that the quantity of milk taken was 660 mis. which was divided into three bottles, each bottle containing 220 mis. and hence, according to R, 20, 17.6 drops of formalin should have been added, but only 16 drops of formalin were added. This, according to the learned Counsel, is sufficient to show that Rule 20 was not complied with and hence a presumption be raised that the milk had deteriorated before it was analysed by the Public Analyst and that no reliance should be placed on the report of the Public Analyst. In support of his contention, learned Counsel has relied on the decision m Municipal Corporation, Gwalior v. Kishan Swaroop AIR 1965 Madh Pra 130 : 1965-2 Cri LJ 220. In that case instead of 2 drops of formalin per ounce of milk only one drop of formalin per ounce of milk was added. It was held by the court that this amounted to non-compliance and hence the report given by the Public Analyst could not be relied upon. The facts of this case are not similar to the facts of the oresent case, Rule 20 gives the proportion of 0.6 ml. (2 drops) for 25 mis. The difference in the present case thus between the quantity of formalin to be added and that was added was negligible. Emphasis was laid in Municipal Corporation case (supra) on the fact that the preservative added was much below the prescribed quantity under Rule 20. As only half quantity of the preservative was added, it was held that reliance could not be placed on the report. The relevant sentence in the judgment is "In our opinion, the argument does not help the appellant for the simple reason that the preservative added in the present case was much below the prescribed quantity under Rule 20, and, therefore, cannot be accepted to be sufficient to prevent its disintegration or changes in its composition." But as in the present case, the quantity of formalin added is not much below but only slightly below the quantity required, no such inference can be drawn. In the case of Public Prosecutor v. Venkata Swami . it was emphasised that if the sample had deteriorated, it would have been! pointed out by the Public Analyst him self. In the present case, the sample was taken on 22nd July, 1969. It was received by the Public Analyst on 24th July, 1969. and thereafter it remained in the laboratory of the Public Analyst. The 'Public Analyst has given a certificate in his report to the following effect:
The sample was in a condition fit for analysis....No change had taken place in the constituents of milk which would have interfered with the analysis.
In view of this certificate and in view of the fact that 16 drops of formalin was added, the contention of learned Counsel cannot be accepted. The court below can not be said to have erred in holding that the sample of milk had been proved to be adulteiated.
16. learned Counsel then contended that so far as the present applicant is concerned, he was denied the opportunity and the right given to an accused under Section 13 of the Act. This denial of opportunity according to learned Counsel, is on two bases; one that no sample was given to Kishan Narain. and two that there was delay in the commencement of the prosecution. The question of giving a bottle of the sample to the present applicant did not arise because the sample had been taken from Ram Gopal and Ram Gopal had been given a bottle containing the milk. According Section 11(1)(c) of the Act. the Food Inspector had to deliver one of the parts of the sample to the person from whom the sample had been taken. The sample was therefore, to be given to Ram Gopal only. Secondly the applicant could have exercised the right under Section 13 by reauesting the court to require the Food Inspector to bring in court the third sample for being analysed by the Director of the Central Food Laboratory, No such attempt was made. The applicant could have even asked for the sample with Ram Gopal to be sent for such analysis. This was also not done. 'The present applicant was taking the plea throughout that he had nothing to do with the milk supplied or sold by Ram Copal, It was for this reason that he did not care to take the advantage of Section 13. The applicant had been summoned to appear in court on 31st December, 1969. The sample had been taken only on 22nd July, 1969 and the applicant could have pot it tested, if he doubted the Public Analyst's report, by the Director Central Food Laboratory. If a person does not voluntarily take advantage of Section 13. he cannot complain about the loss of any right.
17. learned Counsel also contended that the charge framed in the present case was bad because it did not state that the milk given by Kishan Narain to Ram 'Gopal was adulterated. In support of his contention learned Counsel has placed reliance on the decision of the Supreme Court in Bhagwan Das v. Delhi Administration . In that case, the accused was charged for having sold adulterated Ghee belonging to the co-accused, but it was not stated in the charge that he had sold adulterated Ghee. The charge only was to the effect that the Ghee purchased by the Food Inspector from accused No. 1 and sold by accused No. 2 to accused No. 1 was found adulterated. In the present case the charge is not such. Here, there is no case of a transaction coming to a termination by a sale by one accused to another. The case of the prosecution is that Kishan Narain had supplied milk to the hospital through Ram Gopal. There was no termination of the transaction when the milk was handed over by Kishan Narain to Ram Gopal. The transaction terminated with the supply of milk into the hospital and sale thereof to the Food Inspector. There was thus no occasion for making a charge about the handing over by Kishan Narain to Ram Gopal of adulterated milk. According to the prosecution, the supply of milk or sale of milk by Ram Gopal was really a supply or sale by Kishan Narain. There is thus no defect in the charge. Further in the case of Bhagwan Das (supra), the Supreme Court has ruled that no trial can be vitiated by reason of a defect in the charge.
18. learned Counsel in the end contended that it was a fit case in which the sentence should be reduced. I am unable to see any justification for doing so; already the minimum penalty has been imposed. It is a case in which the supply was made to the hospital where the lives of patient? depend on pure milk and if the contractor supplies adulterated milk he deserves to be penalised by higher and not less than the minimum penalty prescribed by law.
19. In the result, the revision fails, and is dismissed. The applicant is on bail, he shall be taken into custody to serve out the sentence.