State of Punjab vs Tilak Raj

H.K. Sudha, J.

The facts of the case, in brief. are that on 7111977 Dr. M.R. Chhabra who exercised the powers of Food Inspector led a raiding party and intercepted Tilak Raj accusedrespondent at Jalalabad while the respondent was carrying milk in a container on his cycle. Some milk was purchased from the respondent which was divided into three equal parts and was transferred into three dry and clean bottles. Each bottle was labelled stoppered and scaled according to rules. One of the sample bottles was sent to Public Analyst and the remaining two bottles were deposited with Local Health Authority, Ferozepur. The Public Analyst as per his report Ex. PE found that the sample milk contained milk fat 4 per cent and milk solids not fat 7, 6 per cent. It was deficient in milk solids not fat by 8 per cent and was, thus, adulterated. A copy of the report of the Public Analyst was sent to the respondent and challan was presented in the Court of Shri S.N. Aggarwal. Judicial Magistrate Ist Class, Fazilka for trial of the respondent for an offence under Section 16(1)(a)(i) read with Section 7 of the Prevention of Food Adulteration Act.

The contention of the respondent was that he was innocent and was falsely implicated in the case. In fact he was not running the business of selling milk.

The prosecution examined Dr. M. R. Chhabra PW 1, Dr. K.R. Makkar PW 2 and L.R. Joshi PW3 in support of the charge against the respondent. The learned trial Court after hearing the counsel for the parties found that it was not a case where due compliance of the provisions of Section 10(7) of the Act had not been made but it came to the conclusion that the respondent was not a milkseller. He was only a Young lady of the age of 16 years and he carried the milk for his father who was a licensed milkseller. In view of these findings, the respondent was acquitted of the charge vide judgment dated 3091982. This judgment has been assailed by the State of Punjab by way of this appeal.

The only contention of the learned counsel for the appellant was that the learned trial Court wrongly held that the respondent was carrying the milk for his father and as such was not a milkseller. In fact the provisions of Section 16 of the Prevention of Food Adulteration Act were fully attracted in the instant case and the accused was liable for the offence of selling adulterated milk. This contention of the learned counsel, however, does not hold good. It has come on record, that when Dr. M.R. Chhabra informed the respondent that he was to take a sample the respondent protested that he was not a milkvendor and the business of selling milk was being run by his father who was holding a licence for the same. Dr. K.N. Makkar PW 2 when crossexamined admitted that the respondent was not a milk seller but it was his father who was carrying on that business. In view of the statements of thee two witnesses it could not be asserted that the version put up by the respondent was an after thought. The witnesses also admitted that the respondent never cold milk to anybody in their presence. The sale of milk only to the Food Inspector under protest was no sale. In the case of Public Prosecutor v. Y. Pulla Raddy, AIR 1966 Andhra Pradesh 302, it was observed as under :

"Where a person coming under item (ii) of Cl. (a) of Sec. 10(1), Prevention of Food Adulteration Act, 1954, is one who is a mere carrier taking the article to a person who had already purchased and who has no power to dispose of the goods or part with the goods, he will not ordinarily allow the Food Inspector to take a sample except by the latter exercising his power under Section 10 of the Act to take sample against the will of the person. And if an article is seized by a Food Inspector by using his powers under Section 10 of the Act and compelling a person in possession of that article to deliver it to him (against his will) for analysis, it will not be a sale for the purpose of Sec. 2 (xiii) of the Act."

In the instant case although the respondent was in possession of Milk but it was not intended for sale nor he fulfilled the character of a `seller'' as he was simply carrying the milk on behalf of his father. The Food Inspector was, therefore, not competent to take a sample and to validly launch prosecution of the respondent. The learned trial Court under circumstance rightly acquitted the respondent and there is no justification for interfering with those findings.

As a result we do not find any force in this appeal and dismiss the same.