State (delhi Admn.) v. Abrar Hussain

P.K. Bahri, J.

1. This appeal is directed against judgment of acquittal dated October 22, 1986, of a Metropolitan Magistrate, New Delhi. The respondent was acquitted of an offence punishable under Section 7 read with Section 16 of the Prevention of Food Adulteration Act.

2. The undisputed facts of the case are that on February 27, 1985, at about 4.45 p.m. the respondent was carrying certain milk cans in a vehicle from his village for selling the milk in Delhi, but on the way to Delhi the Food Inspector stopped his vehicle near Nizammuddin Bridge and had taken a sample of the milk from a can which bore no label. In the receipt issued by the Food Inspector to the respondent for purchasing sample of the milk, the respondent had recorded that he had sold the sample of separata/(skimmed) milk. The analysis of the sample milk carried out by the Public Analyst indicated that the sample did not conform to the standard of buffalo milk although it did conform to the standard of skimmed milk.

3. A complaint was made against the respondent before the Metropolitan Magistrate after obtaining necessary prior sanction on the ground that the can from which the sample of the milk was taken did not indicate as to what kind of milk it contained, so, in view of the Rules applicable to the sample where there being no indication of the type of the milk so sold, the standard of buffalo milk is applicable. The learned Metropolitan Magistrate had held that in the receipt the respondent had indicated that he was selling sample of the skimmed milk and, thus, the standard for the skimmed milk was applicable and hence, the respondent was not guilty of selling any milk of buffalo which could be treated as adulterated milk as it did not conform to the standard of buffalo milk prescribed by the statute. So, he acquitted the respondent.

4. The learned Counsel for the State has vehemently argued that in view of Rule A..11.01.11 the Note (i) appended therein, if the milk is offered for sale without any indication of the class, the standards prescribed for buffalo milk shall apply, would be applicable to the present case inasmuch as there should have been an indication on the can of the milk indicating as to what class of milk was contained in that particular can and mere indication of the class of the milk on the receipt pertaining to the sample of milk so purchased that it was a skimmed milk is of no consequence.

5. Similar question had arisen before a Single Bench of this Court in the case of Gajinderv. State,1975 (1) FAC 420. In the said case the container similarly had no indication written over it with regard to the class of the milk but a plea was taken by the accused in that case that at the time of the sale of the sample, he had given the indication orally with regard to the class of the milk. The contention raised before the Single Bench was that the word indication mentioned in the aforesaid note would mean even oral indication at the time the sample is sold. The learned Single Judge, however, held that the word indication if broadly interpreted may mean even oral or written indication but the broad interpretation is not to be given because it is liable to be misused by the unscrupulous persons dealing in food articles as at the time of the sale of the sample a false representation and declaration could be given by the vendor with regard to the nature of the article being sold. So, he held that the word indication should mean some indication on the container or can containing said food article and not any indication being given orally or in writing by the vendor at the time of the sale of the milk.

6. The same interpretation was given by a Division Bench of this Court in Municipal Corporation of Delhiv. Karam Chand, 1974 FAC 490. In the said case the Food Inspector had taken a sample of the milk out of one of the containers which had the indication written on it as toned milk. The contention raised before the Division Bench was that the vendor had written the words as cows milk on the receipt. There was some discrepancy in the receipt, at first the vendor had written in his own hand in Urdu script that it was cows milk but later on deleted the word cow and wrote below it the word separata. The learned Division Bench of this Court held that as the container had indicated to be toned milk and thus, as the analysis of the sample did not meet with the requirement of the law, so it brought home the offence to the respondent having sold the adulterated milk. The matter was taken to the Supreme Court in the S.L.P. The case is reported in book Supreme Court on Food Adulteration & Drugs Cases 1951 to 1982 at page 497, Karam Chandv. Municipal Corporation of Delhi, Criminal Appeal No. 219/74 decided on February 7, 1979. The Supreme Court had set aside the judgment of this Court and had held that the declaration made by the vendor duly written on the receipt would be sufficient to show the indication of the class of the milk being sold by him and such indication was accepted by the Supreme Court and ultimately Karam Chand, the accused in that case, was acquitted.

7. The learned Counsel for the State in all fairness has also drawn our attention to a judgment of the Supreme Court given in the same book at page 551 in The State of Tamil Naduv.R. Krishnamurthy, in Criminal Appeal No. 236/73 decided on November 15, 1979, where it has been observed that a person selling adulterated sample to a Food Inspector could invariably inform him that it was not for human consumption and thereby insure himself against prosecution for selling adulterated food. It was observed that if sale for analysis is an unqualified sale for the purposes of the, there is no reason why other sales of the same article should not be sales for the purposes of the. That judgment is based on different facts and it is not applicable to the facts before us.

8. The short question which arises for consideration is whether the Legislature had intended or not by appending the said Note mentioned above that the indication with regard to the class of the milk being sold should be on the container prior to the sale or such indication could be given orally or even in writing at the time of the sale of the milk. If we go by the language of the said note, it is evident that the indication has to be at the time of the sale of the sample of the milk. In case the legislature intended that there should be labelling of the container containing the milk prior to the sale of the milk the Legislature could have easily provided for it in Rules 32 and 42 which require the prior labelling of the containers containing the food articles mentioned therein. The milk in containers/cans is not included in the said Rules. It is true that some unscrupulous persons dealing in adulterated milk can take advantage of such interpretation being given to the word indication but the remedy for curbing such evil lies with the Legislature and not with the Court. At any rate, the judgment given in the case of Karam Chand (supra) by the Supreme Court applies on all fours to the facts of the present case. Hence, we hold that acquittal of the respondent in the present case is well-based. We find no reason to interfere with the said order of acquittal. We dismiss the appeal.