State by Public Prosecutor vs Rajendran

Swamikkannu, J.—This is an appeal filed by the State u/s 378, Crl.P.C, against the judgment, dated 21st August, 1981 in C.C. No. 86 of 1981 on the file of the Court of the learned Chief Judicial Magistrate, Kumbakonam, finding the accused/Respondent herein not guilty under Ss.7(i), 16(1)(a)(i) read with 2(i-A) (a) and (m) of the Prevention of Food Adulteration Act, 1954 (37 of 1954 as amended upto Act 34 of 1976) (hereinafter called the ''Act''), and acquitting him u/s 248(1), Crl.P.C.

The case of the prosecution against the accused/Respondent herein is that on 20th December, 1980 at about 5:30 a.m., in front of Door No. 32, Dr. Besant Road, Kumbakonam, the Respondent herein was found in possession of adulterated cow''s milk for sale, and on analysis of the same, the Public Analyst has opined that the sample was deficient in solids not fat to the extent of at least 47 per cent. Clause A. 11.01.11 in Appendix B to the Prevention of Food Adulteration Rules, 1955 requires that cow''s milk shall contain not less than 3.5% fat and not less than 8.5% solids not fat, and therefore, the Respondent herein has committed an offence punishable under Ss.7(i), 16(1) (a) (i), read with Section 2(i-A) (a) and (m) of the Act.

On behalf of the prosecution P.W.1 Kittappa, Food Inspector, Kumbakonam Municipality, and P.W.2 Pitchai were examined. Exs. P1 to P9 were filed on behalf of the prosecution. On behalf of the accused-Respondent, D.W.1 Sampath was examined and Ex. D1 Form VI notice dated 20th December, 1980 served on the Respondent herein was also filed before the lower court. On the point whether the prosecution had proved its case against the accused/Respondent herein beyond all reasonable doubt, the lower court had held that in the instant case the provisions of Section 10(7) of the Act had been contravened, and as such the Respondent herein cannot be held to be guilty. In other words, the lower court had held that the prosecution had not established its case against the Respondent herein beyond all reasonable doubt. Aggrieved by the above decision of the lower court, the State has now come forward with this appeal.

The case of the prosecution can be briefly stated as follows:- P.W.1, the Food Inspector attached to Kumbakonam Municipality has got the authority to take sample and also institute proceedings in court under the provisions of the Act. On 20th December, 1980 at about 5:30 a.m., P.W.1 was standing near the building bearing door No. 32, Dr. Besant Road. During that time, the accused brought milk in a ''Kudam'' carrying the same in a cycle. The Respondent herein was stopped by P.W.1. P.W.1 asked the Respondent herein as to which place he was taking the milk. On the cycle carrier, there was a ''Kudam'' containing milk, and there were also four other ''Chombus'' kept on the side of the said ''Kudam'' containing milk. The Respondent herein was carrying about 40 litres of milk on that day. The Respondent is the owner of the said milk. According to P.W.1, the Respondent informed him that he was taking the milk for selling it. Thereafter P.W.1 called P.W.2, Pitchai who was standing there as a witness informing that he was taking sample from the milk that was brought by the Respondent. According to P.W.1, the Respondent had also given his consent for the sample being taken from his milk. Thereafter, P.W.2, prepared two notices under Form VI. He gave one of the notices thus prepared to the Respondent. In the said notice that was served to the Respondent, the signature of both the Respondent as well as P.W.2, were obtained by P.W.1. Ex.P1 is the copy of the said notice. The Respondent was also having 500 ml. and 200 ml. measures with him at that time. ''Kudam'' was stirred by P.W.1, and thereafter 700 ml. of cow''s milk was bought by P.W.1, by paying Rs. 1-05 as price for the same. Ex.P2 is the cash receipt for the same. In Ex.P2 the signature of the Respondent and P.W.2 were obtained by P.W.1.

Thereafter, P.W.1 divided into three equal parts the milk purchased and filled them separately in three dry bottles. Twenty drops of formalin were added in each such bottle. Care was taken to see that the contents of the bottles do not leak out. The bottles were closed with corks and thereafter bound with twine thread. Thereafter they were sealed. Form No. 401 was filled and on each bottle they were struck. They were also sealed. Thereafter, each bottle was wrapped with a brown sheet. Both the upper portion as well as the bottom portion was properly folded and pasted. The slip given by the local health authority was also wrapped on the bottle. The signatures of the accused/Respondent were obtained on the slip and the wrapped sheet. The bottles were further bound with thick twine thread and they were properly sealed. Thereafter, P.W.1, came to the office and prepared Form VII, and he prepared five such forms. He affixed specimen seal on them. He also prepared two separate sheets containing specimen seal. One of the bottles so wrapped was put inside a cover along with Form VII and sealed. After informing the local health authority, P.W.1, sent the bottle so packed through railway parcel to the Public Analyst, Madras, on the same day, viz., 20th December, 1980. The remaining two bottles were placed inside a cover along with Form VII (two in number,) and the same was sealed and entrusted with the local health authority. P.W.1, received Ex.P3 acknowledgment from the Local Health Authority. On the same day, viz., 20th December, 1980, he sent the railway receipt and Form VII together with a separate sheet containing specimen seal to the Public Analyst, Guindy, by registered post through his office. Ex.P4 is the postal acknowledgment of the receipt of the same by the Public Analyst. Ex.P5 is the report of the Public Analyst. In the said report (Ex.P5) it is mentioned that the sample on analysis was found to contain 3.2% of fat and 4.5% of solids-not-fat to the extent of at least 47 per cent. Cl. A. 11.01.11 in Appendix B to the Prevention of Food Adulteration Rules, 1955 requires that cow''s milk shall contain not less than 3.5% fat and not less than 8.5% solids not fat. Ex.P6 is Form VII memorandum, dated 20th December, 1980 sent by the Food Inspector to the Public Analyst, Guindy, stating therein that a copy of this memorandum and the specimen seal were sent by railway parcel. Ex.P7 is the letter from the Food Inspector, Kumbakonam, to the public analyst, King Institute, Guindy, stating that the specimen seal had been affixed in the separate sheet. After obtaining the sanction from the local health authority, P.W.1, filed the complaint before the lower court on 4th February, 1981. Thereafter P.W.1, served S. 13(2) of the Act notice and the copy of the report of the public analyst on the Respondent herein on 9th February, 1981. The copy of Section 13(2) of the Act notice issued to the Respondent is Ex.P8. Ex.P9 is the acknowledgment from the accused/Respondent relating to the service of the report of the public analyst. In Exs.P8 and P9, the Respondent herein had put his signatures.

P.W.2 Pitchai has stated in his evidence that about six months before himself deposing in the lower court, the peon of P.W.1 came and called him saying that he had to attest the documents relating to the taking of milk sample, and that as per the request of the Sanitary Inspector, he had put his signatures in two places. P.W.2 has further stated that he did not know as to the person from whom the sample was taken. P.W.2 is owning a tea shop. He was treated hostile to the prosecution and was cross-examined on behalf of the prosecution.

Then the Respondent herein was questioned, and he denied the offence. Thereafter, the lower court had framed the charge against the Respondent herein under Ss.7(i), 16(1) (a) (i), read with Section 2(i-a) (a) and (m) of the Act. The Respondent herein pleaded not guilty. Thereafter P.W.1 was cross-examined on behalf of the Respondent herein. When questioned u/s 313, Crl.P.C,, relating to the incriminating circumstances available in the evidence let in by the prosecution, the accused/Respondent denied the offence. The Respondent has stated that he brought the milk for his own use. He further stated that he was compelled to sell the milk, and that a false case had been instituted against him. He further stated that there was no witness at the time of taking of the sample of the milk from him. He examined D.W.1 Sampath on his behalf.

D.W.1 Sampath has stated in his evidence that he is residing at Kumbakonam. On 19th February, 1980 the Respondent came to his house. On 20th December, 1980 guests came to the house of D.W.1 For purchasing milk, both the Respondent and D.W.1 went to a place opposite to Kumbakonam Town High School at 5:30 a.m. After purchasing the milk, they were bringing the milk from Vijayalakshmi Theatre for going to the house P.W.1 called them. P.W.1 snatched ''Chombu'' containing milk from the hands of the Respondent. The Respondent herein then stated that he would not give the same. It is also the evidence of D.W.1 that at the time, the Respondent told P.W.1 that he had purchased the milk and was carrying the same to his house for domestic purposes. P.W.1 had taken about 600 to(sic) 700 ml. of milk from the said milk. The Respondent was threatened and his signatures were obtained by P.W.1. Thereafter D.W.1 and the Respondent came to their house. At the time when P.W.1 seized the milk, there was no person available at that place as a witness. It is the specific evidence of D.W.1 that the Respondent herein did not take the milk for selling the same on that day, and that the Respondent is not dealing in milk.

On the question whether the prosecution has proved its case against the Respondent herein beyond all reasonable doubt, as already mentioned, the lower court came to the conclusion that the prosecution had not established its case against the Respondent herein and acquitted the Respondent. Aggrieved by the above decision, the State has preferred this appeal.

It is contended on behalf of the State by the learned Public Prosecutor that the lower court had not properly appreciated the evidence available on record and came to a wrong conclusion that the prosecution had not established its case against the accused/Respondent herein.

The point for consideration is whether the prosecution has proved its case against the accused/Respondent herein beyond all reasonable doubt.

From the evidence available on record, it is seen from the evidence of P.W.1 that on 20th December, 1980 at about 5:30 a.m., he took sample from the cow''s milk near Dr. Basant Road, Kumbakonam, and that he purchased the said sample milk about 700 ml. as per Ex.P2 cash receipt. It is also seen from his evidence that he divided the said milk into three equal parts and one such part of the milk was sent to the public analyst for analysis. Ex.P5 is the report of the public analyst. As per Ex.P5, the sample milk contained fat 3.2% and solids not fat 4.5%. The Public analyst has opined in Ex.P5 that the sample is deficient in solids not fat to the extent of at least 47 per cent. So, it is clear from the evidence of P.W.1 that the milk from which the sample was taken is adulterated cow''s milk.

The contention raised on behalf of the Respondent herein is that the milk in his possession on the day in question was not intended for sale and that P.W.1 had taken the sample by force. D.W.1 has stated in his evidence that on the day in question guests came to his house, and therefore the milk was bought and brought by both himself and the Respondent, and during that time, the sample was taken by P.W.1 after threatening them. If really the Respondent was threatened by P.W.1 and the sample was taken from him by P.W.1, certainly the Respondent would have given a petition to the higher authorities against P.W.1 stating that the milk was not kept for sale. No such petition had been sent by the Respondent. So, the evidence of P.W.1 cannot be believed when he states that the milk was bought by the accused/Respondent on the day of question only for domestic purpose of D.W.1.

P.W.1 has stated in his evidence that on the day in question, the Respondent brought about 40 litres of milk in four, ''Chombus'' and that at that time the Respondent was also having 500 ml. and 200 ml. measures with him. If really the Respondent had not brought 40 litres of milk for sale, there is no reason as to why he should have measures with him at that time. Therefore, the irresistible conclusion that can be arrived at, under the circumstances, is that on the day in question, the Respondent herein brought the milk only for sale.

It is relevant in this connection to note that P.W.1 has stated that before taking the sample from the milk brought by the Respondent, he had stirred the same with 200ml. measure and thereafter purchased 700 ml. of milk from the Respondent, and that he had divided the said milk bought, into three equal parts, filled the same separately in three bottles. Thus, it is clear that the sample had been taken by P.W.1 only from the milk that was brought by the Respondent.

The main contention that is raised on behalf of the Respondent herein in this appeal is that the provisions of Section 10(7) of the Act have not been followed by P.W.1 in this case. S. 10(7) of Act reads as follows:

10(7): Where the food inspector takes any action under Cl.(1) of sub-S.(l), sub-S.(2), sub-S.(4) or sub-S.(6), he shall call one or more persons to be present at the time when such action is taken and take his or their signatures.

The evidence of P.W.1 shows that P.W.2 was present from the time of service of Form VI notice to the Respondent by P.W.1 before taking of sample till the bottles were sealed. But P.W.2 in his evidence states that he does not know the accused. According to P.W.2 he put his signatures at two places as required by the Sanitary Inspector, when he was called by his peon. P.W.2 has stated that he did not know the person from whom the sample had been taken. P.W.2 has further stated that he is owning a tea-shop. P.W.2 has not stated in his evidence about the service of Form VI notice to the Respondent by P.W.1 or about the purchase of milk by P.W.1 from the Respondent. Thus, we find that P.W.2 has not corroborated the evidence of P.W.1. Ex. D1 is Form VI that had been served on the Respondent by P.W.1. In Ex. D1 the signature of P.W.2 has not been obtained. So, it is quite possible that the signature of P.W.2 found in Ex.P1 Form VI could have been obtained subsequently. In these circumstances, it is clear that P.W.2 could not have been present, at the time when the sample was taken from the Respondent because the signature of P.W.2 had not been obtained in Ex.D1, Form VI that had been served on the Respondent. If really P.W.2 was present during the time of taking the sample, nothing prevented P.W.I from obtaining the signature of P.W.2 in Ex. D1. So the contention raised on behalf of the Respondent herein that P.W.2 was not present at the time of taking the sample cannot be rejected as wholly unsustainable. It is really strange that Ex. D1 does not contain the signature of P.W.2, when Ex. P1 contains the signature of P.W.2. Thus, we find that the provisions of Section 10(7) of the Act had not been complied with by P.W.1 during the time of taking the sample from the Respondent herein. Thus, on a careful and anxious scrutiny of the entire evidence available on record, this Court finds that the prosecution had not proved its case against the Respondent herein beyond all reasonable doubt. The prosecution had not established its case that the Respondent has committed the offence under Ss.7(i), 16(1) (a) (i), read with Section 2(i-a) (a) and (m) of the Act. The acquittal of the Respondent by the lower court u/s 248(1), Crl.P.C., is correct.

There is no merit in the appeal. Hence the appeal is dismissed.