State by Public Prosecutor vs Rathinammal

Varadarajan, J.—This criminal appeal has been filed by the State represented by Public Prosecutor against the acquittal of the respondent-

accused Rathinammal of an offence punishable under S. 16(1)(a)(i) read with 7(i) and 2(1-a) (a) and (i) of the Prevention Food Adulteration Act,

by the learned Sub-Divisional Judicial Magistrate, Erode, in S.T.R. 429 of l977.

The complaint in the above case was preferred by the Food Inspector, Anthiyur (P.W.I), alleging that at about 7:30 a.m. on 28th November,

1976, near door No. 35 in Durgar Road, Anthiyur, the respondent Rathinammal was in possession for sale and sold to P.W.I adulterated buffalo''s

milk, which on analysis was found to be deficient in solids-not-fat to the extent of 25% and the accused-respondent thereby committed an offence

under the above section of the Food Adulteration Act. P.W.I, stopped the accused and served Ex. P 1 Form VI notice of intimation of his

inattention to take sample of milk and purchased 660 milliliters of the said milk for Rs. 1-15, under receipt Ex. P 2 in the presence of Kandaswami

(P.W.2). 1P.W.1''s ministry, Chinnaswami has not been called as a witness, P.W.1 divided the milk into three equal parts, poured it into three

clean, dry and empty bottles and added 16 drops of formalin to each of the bottles and thereafter corked. twined and wrapped them and gave one

bottle to the accused under acknowledgment, Ex.P. 3, retained one bottle, M.0.1 and sent another bottle to the court. The bottle in which the

sample has been taken was sent to the Food Analyst who has subsequently reported that the sample was deficient in solids-not-fat to the extent of

25%.

Os questioning about the circumstances appearing against her in the evidence, the accused stated that she was not taking the milk for sale and

that even though she told P.W.1 that she was not having the milk for sale, he took some milk and gave money to her.

The accused examined her senior paternal uncle as D.W.I, and he has deposed that at the relevant time, he was ailing and on the advice of the

Doctor, he was taking milk and on the date in question, he had asked the accused to bring three liters of milk. He has denied that the accused was

selling milk to him and has stated that she was giving the milk free of cost and she continued to do so even after the date on which P.W.1 had

taken some milk from her.

The learned Sub-Divisional Judicial Magistrate found on the evidence that there was no measuring instrument with the accused when P.W.I

purchased 660 milliliters of milk from her for Rs. 1-15, and held that there was no sale of milk and that the milk was not intended for sale and in

that view, he found the accused not guilty and acquitted her.

The learned Advocate for the Government relied upon a decision of the Supreme Court in The Food Inspector, Calicut Corporation Vs.

Cherukattil Gopalan and Another, and submitted that the sale of milk for sample amounts to sale within the definition of sale contained in S. 2(xiii)

of the Prevention of Food Adulteration Act, 1964. In that decision, it has been observed more thin once that a reference to the definition of ''sale''

in the Act will show that a sale of any article of food for analysis comes within that definition.

But, in the present case, P.W.I, has not stated in his evidence that he purchased the milk for sample. The notice, Ex.P 1 states that the milk was

taken for sample and not that it was purchased for sample. Even P.W.2 who has attested Ex. P 1 has not stated in his evidence that P.W.I wanted

the accused to sell some milk for the purposes of sample or analysis. On the other hand. P.W.2 has stated that he does not know whether the

accused was taking the milk for sale or for domestic consumption. P.W.I would say that the accused is a licensed milk vendor, but no license or

any counterfoil of any license has been produced to show that the accused is a milk vendor. The observation of the learned Sub-Divisional Judicial

Magistrate in paragraph 8 of the judgment that P.W,1 has admitted that the accused had no measuring instrument with her is not correct as P.W.I,

has not made any such admission in his evidence. The evidence let in on the side of the prosecution does not establish that the accused purchased

the milk for sample or analysis and that she sold it to P.W.I voluntarily. The evidence does not establish that P.W.I purchased the milk from the

accused after making any representation to her that he was doing so for the purpose of taking a sample or for analysis. Therefore, the sale as

required by S. 2(xiii) of the Act is not established by the facts of the present case. Moreover, S. 13(2) of the Act lays down that on receipt of the

report of the result of the analysis under Sub-s. (l) to the effect that the article of food is adulterated, the Local (Health) Authority shall, after the

institution of prosecution against the person from whom the sample of articles of food was taken, forward, in such manner as may be prescribed, a

copy of the report of the result of the analysis to such person informing such person that if it is so desired, that person may make an application to

the court within a period of ten days from the date of receipt of the copy of the report to get the sample of the article of food kept by the Local

(Health) Authority analysed by the Central Food Laboratory. There is no evidence to show that the requirement of S. 13(2) of the Act was

satisfied in this case. This would be another reason to hold that the prosecution has not complied with the provisions of law and that the acquittal of

the accused by the learned Sub Divisional Judicial Magistrate is not unwarranted. No interference with the judgment of the court below is called

for, This criminal appeal is dismissed.