JUDGMENT H.L. Capoor, J.
1. This judgment shall govern both the appeals, as the accused is the same in both the cases and both of them were disposed of by one trial.
2. The Nagar Swasth Adhikari. Agra, has preferred these appeals against the orders, dated 13th December, 1971, of Sri A. N. Bhargava. Magistrate, 1st Class, Agra acquitting the accused in both the cases out of which these appeals have arisen.
3. The prosecution case, in brief is that the accused-respondent was found selling cow milk on 25th December, 1967 and 6th January, 1968, at about 9 O'clock in the morning in Shivaji Market by the Food Inspector, who purchased 660 millilitres of milk as sample on cash payment of .62 P. and .60 P. respectively. The milk was divided in three equal phials, in each of which 17 drops of formalin were added in both the cases. One sample was given to the accused, the other was sent to the Public Analyst, and the third was retained in the office of the Nagar Swastha, Adhikari in respect of the milk taken on both the days. The report of the Public Analyst showed that the sample milk was deficient in fatty solid contents by about 34% and in non-fatty solid contents by about 59% in the sample taken on 25th December, 1967, and it was found deficient in non-fatty solid contents by 27% in the milk taken on 6th January, 1968. It is on these allegations that the accused was charged under Section 7 read with Section 16 of the Prevention of Food Adulteration Act (hereinafter called the Act), in both the cases.
4. The accused denied to have committed any offence in both the cases. His main defence was that he was falsely implicated, because the Food Inspector had taken the sample, but its price was not paid by him. No defence evidence was, however, adduced on his behalf.
5. The prosecution, in order to establish its case, relied upon the statements of Sri Bishan Swarup Srivastava, Food Inspector (P. W. 1) and Lakhan Singh. Naib-Safai Jamadar (P. W. 2) as the witnesses of fact, and Prakash Chandra Agrawal, Licence Clerk (P. W. 3), who proved that the accused was issued a licence from 29th August, 1967 to 31st March, 1968, in the case in which milk was taken on 25th December. 1967.
6. In the other case, in which milk was taken from the accused respondent on 6th January, 1968. the witnesses examined were seven in number, out of whom Sri Suresh Chandra Upadhya, Food Inspector (P. W. 1), Rup Chandra (P. W. 5). Narain Das Sharma (P. W. 6) and Ram Chander (P. W. 7) were the witnesses of fact. Rup Chandra (P. W. 5) did not support the prosecution case and was declared hostile.
7. The learned Magistrate, on a consideration of the evidence on record, was of the view that the Public Analyst was not examined to prove his own report, that the prescribed quantity of formalin was not added in the milk as a result of which it could not be preserved for the prescribed period, and that the statements of the prosecution witnesses were not corroborated or supported by any independent witness, and hence he arrived at the finding that the prosecution failed to prove its case against the accused and acquitted him in the case in which milk was taken on 25th December, 1967. In the other case, in which sample was taken on, 6th January, 1968, the learned Magistrate did not discuss the statements of the other witnesses, except the statement of P. W. 1, and by stating that the solitary testimony of the Food Inspector could not be relied upon, that a lesser quantity or formalin than that prescribed under the Rules being added to the sample milk, an illegality was committed, and that the milk could not be preserved for the prescribed period, acquitted him of the charge for sample of milk being sold on 6th January, 1968. also.
8. The learned Counsel appearing on behalf of the appellant has strenuously urged before me that the view taken by the court below is erroneous inasmuch as the law does not require that the Public Analyst is necessary to be produced to prove his report unless the accused applied to the court that he should be examined as a witness due to any fact so that he may be cross-examined; otherwise the report of the Public Analyst, as filed in this case and exhibited will be legal evidence, which could be read and used against the accused. He has also urged that it has now been held by the Supreme Court in several cases that it is not necessary that the statements of the Food Inspector and the other persons of the Department be necessarily supported by any independent public witness before the conviction of the accused could be recorded. He has also urged that it is not necessary that if the prescribed quantity of formalin is not added with the milk, it would be said to be non-compliance of the Rules framed under the Act, unless there may be evidence on record to come to the conclusion that the sample was not found by the Public Analyst in a fit condition for analysis. In support of his last contention, he has relied upon a Full Bench case, A. N. Ante, Food Inspector, Indore, Municipal Corporation v. Mohammad Amin Khajarana 1974 FAC 131 (Madh Prai and Chairman Jugsalai Notified Area Committee v. Mukhram Sharma ; the answer given by the Full Bench of the Madhya Pradesh High Court to a question referred to them, in the former case, was as follows:
Rule 20 of the Rules framed under the Prevention of Food Adulteration Act is not so rigid or mandatory that a small deviation about the quantity of formalin to be added will be fatal to the prosecution. The law only requires substantial and not technical compliance of this Rule, provided that when the sample is examined by the Public Analyst at the request of the Food Inspector and by the Director of the Central Food Laboratory at the request of the accused, the sample of food is found in a condition fit for analysis and its analysis is not rendered impossible only because, of inadequacy of formalin added to the sample of food.
In the latter case, the Food Inspector took sample of cow's milk from the respondent weighing 3/4 seer after observing the necessary formalities and on payment of price. After dividing the milk into three parts, he added 8 drops of formalin in each bottle of 8 ozs. The milk was, however, found to be deficient by the Public Analyst, who examined it after 2 1/2 months of the sample being taken. The accused did not take any step either for the examination of the Public Analyst or for sending the sample with him to the Director, Central Food Laboratory, for examination. It was held in the circumstances of the case that the finding of the Lower Court that as the required quantity of formalin was not added to the sample, the accused could not be convicted on the basis of the report, was erroneous, and the order of acquittal of the accused was set aside. It would thus appear that merely because, instead of 18 drops of formal in only 17 drops of formalin were added to each phial, it could not be said to be non-compliance of the rules framed under the Act, and that the public Analyst having stated in his report that the sample was in a fit condition for analysis. there could be no defect in adding a lesser quantity of formalin than required under the Rules, and the view taken by the court below was erroneous, with the result that the acquittal of the accused respondent must be set aside.
9. The first two submissions of the learned Counsel must also be accepted that it was not at all necessary for the prosecution to examine the Public Analyst and that the statements of the two witnesses examined in the case having found corroboration from each other, the prosecution succeeded in establishing that the accused respondent was found selling milk and the sample sold to the Food Inspector was found deficient in fatty and non-fatty solids both. He accordingly committed an offence under Section 7 read with Section 16 of the Act, and must be convicted for it in the case, in which the sample was taken on 25th December, 1967.
10. So far as the other case, in which the sample of milk was taken from the accused on 6th January. 1968, is concerned, it is wrong to say on the part of the learned Magistrate that there was the solitary testimony of the Food Inspector. In fact, apart from Sri Suresh Chandra Upadhya (P. W. 1), the other witnesses of fact, namely, Rup Chandra (P. W. 5), Narain Das Sharma (P. W. 6) and Ram Chander (P. W. 7) were also examined, out of whom Rup Chandra (P. W. 5) did not support the prosecution case and was declared hostile, but the rest corroborated the statement of the Food Inspector, Nothing material whatsoever has come out in their cross-examination to discredit them in any manner. It was thus established from their evidence that the sample of milk was taken from the accused respondent on 6th January, 1968, by the Food Inspector, and the accused-respondent actually sold this milk to him on receipt of price. So far as the sample being taken by the Food Inspector is concerned, it is also admitted by the accused. The sample was found to be adulterated, it being deficient in non-fatty solids by about 27% and the Public Analyst haying found the sample to be in a fit condition for analysis, the mere fact that only 17 drops of formalin, instead of 18 drops of formalin, were added in it would be immaterial as laid down in the aforesaid two cases, one of the Madhya Pradesh High Court and the other of the Patna High Court. Thus, the view taken by the learned Magistrate that the accused was entitled to acquittal on the grounds that only one witness was examined and that the lesser quantity of formalin than the prescribed one was added in the milk was definitely erroneous and must be set aside.
11. In the result, both the appeals are allowed, the acquittal of the accused-respondent is set aside, and he is convicted under Section 7 read with Section 16 of the Act in both the cases and is sentenced to pay a fine of Rs. 500/-, and in default to undergo six months' rigorous imprisonment in the case out of which criminal appeal No. 154 of 1972 has arisen, and in the other case, out of which Criminal Appeal No. 153 of 1972, has arisen, he is sentenced to pay a fine of Rs. 200/-, and in default to undergo three months' rigorous imprisonment.