Inder Bir Singh vs State (U.T.Chandigarh)

Harmohinder Kaur Sandhu, J.

Inder Bir Singh petitioner was convicted for an offence under Section 16(1)(a)(i) read with Section 7 of the Prevention of Food Adulteration Act (Act for short) and was sentenced to undergo rigorous imprisonment for six months and also to pay a fine of Rs. 1000/ by Shri R.C. Sharma, Judicial Magistrate 1st Class, Chandigarh. In default of payment of fine be was further awarded rigorous imprisonment for two months and his appeal against conviction and sentence was dismissed by Shri M.K. Bansal, Additional Sessions Judge, Chandigarh vide judgment dated 2951984.

The brief facts of the case are that on 641984 at about 11.00 A.M. Shri Balbir Singh, Food Inspector visited the premises of the petitioner situated in Sector 20 D Chandigarh and found him in possession of 10 kilograms of toned milk for sale. After disclosing his identity and serving notice on the petitioner the Food inspector purchased 700 militres of milk on payment of Rs. 2.50 vide receipt Ex. PB. The purchased milk was sealed in three dry and clean bottles as per rules after formal in was added. One sealed bottle was sent to the Public Analyst for analysis and the other two bottles were deposited with the Local Health Authority. The Public Analyst submitted his report Ex. PD to the effect that fat contents of the sample were 2 per cent as against 3 per cent and the milk was adulterated.

I have heard Shri J. N. Kaushal, Learned Senior Advocate for the petitioner, Shri R.S. Rai, learned counsel for the respondent and have gone through the record.

It was argued on behalf of the petitioner that the petitioner was not running a tea stall nor he sold milk. Rather he was running a restaurant where only food articles were sold. The restaurant was being run in a shopcumflat. The upper portion of the flat was. used for residential purposes. The petitioner was having only three kilograms of milk which was lying in the kitchen on the back side of the restaurant. The milk was kept for use in the house as father of the petitioner was suffering from high blood pressure and was under treatment. The doctor had prescribed double toned milk for him.

In support of its case only Balbir Singh Food Inspector appeared as PW1 who deposed about the purchase of milk from the petitioner. Statement of PW2 Surinder Kumar was formal in nature. One Gurcharan Singh was cited as a witness by the prosecution but he was given up as being unnecessary. He was an independent witness and his testimony was most material for the prosecution to prove its case against the petitioner. He appeared in defence as DW5 and supported the version given by the petitioner. He stated that the petitioner was running a hotel under the name of Best Hotel where meals were served. Milk or tea was not supplied to the customers. When the Food Inspector purchased milk for analysis from the petitioner he was present in the premises. The petitioner disclosed to the Food Inspector that the milk which was lying in the kitchen was meant for domestic use and that was double toned milk which his father was to take under medical advice. He further stated that the milk was brought by the peon of the Food Inspector and no payment was made to the petitioner. Sohan Singh DW1, father of the petitioner, produced his prescription slips Ex. DA to Ex. DD. He stated that he suffered from high blood pressure and remained admitted in the hospital. He was advised to take fatless milk and double toned was milk procured for him from Amar Brothers, Mohali. His statement was duly supported by Amarjit Singh DW 4 who was running a dairy under the name of Amar Dairy. DW 2 Amar Nath and DW 3 Man Raj Singh deposed that they were customers of the petitioner and they took meals at his hotel. They were definite that milk or tea was not supplied there. The conviction of the petitioner could be maintained only if the prosecution proved that the milk found in possession of the petitioner was for public sale. Admittedly the petitioner is running a hotel where milk is not sold nor is used for the preparation of any other food article. As father of the petitioner was ailing and was advised to take fat free milk, double toned milk was purchased for him and was kept in the kitchen. The flat was used for residential purposes by the petitioner and other member of his family, The evidence led in defence was quite convincing and there was no reason to disbelieve the same.

As a result I find that the milk kept by the petitioner in his possession was not for sale and his conviction cannot be maintained. The petition is therefore accepted and conviction and sentence of the petitioner are set aside. He is acquitted of the offence with which he was charged. Fine, if deposited be refunded to the petitioner.