(Appeal (disposed of on 26-11-1943) under S. 417, Crl. P.C. 1898 against the acquittal of the aforesaid accused by the Stationary Sub Magistrate of Anantapur in C.C. No. 449 of 1943 on his file.)

This is an appeal by the Crown against the acquittal of the accused in C.C. No. 449 of 1943 on the file of the Stationary Sub-Magistrate of Anantapur. He was charged under R. 29(b) of the rules framed under the Madras Prevention of Adulteration Act and S. 5(1)(b) of the said Act read with R.

27. The case against the accused was that he was selling milk adulterated with water on the 28th of March last. The Sanitary Inspector found him offering milk for sale. He purchased from him milk for two annas with a view to test it. He tested the milk and found that it was adulterated with water. He made samples of it and gave a declaration to the accused and sent a report. P.W. 1 the Sanitary Inspector proved the purchase by him for two annas of the milk which the accused was offering for sale. He took out of it three samples and sent one to the chemical analyst. The analysts report showed that the sample milk sent to him contained 46 per cent of water. The Magistrate held that since the Sanitary Inspector took out the samples in his official capacity the accused could not be found guilty and he relied upon the decision of Mr. Justice Horwill in In re Ballamkonda Kanakayya (I.L.R. 1948 Mad. 381 = 55 L.W. 464). The Magistrate has evidently not correctly understood that ruling. All that was stated there was that there must be proof that the accused sold the milk. In that particular case there was no proof of sale and the evidence disclosed that the Sanitary Inspector seized a part of the milk and sent it to the analyst. The accused could not be found guilty as there was no evidence of sale. In this case there is the evidence of the Sanitary Inspector that he purchased milk for two annas and that after purchasing the same he noticed that it was adulterated and then took out a sample and forwarded it to the authorities. The ruling has therefore no application to the facts of this case. It was pointed out even in that ruling that if the Sanitary Inspector had purchased it the accused would have been guilty of the offence. The fact that the purchaser in this case happened to be the Sanitary Inspector would not make it any the less a purchase. The order of acquittal is therefore set aside. There is no evidence to show that the accused had any previous conviction. The accused will have to be convicted for an offence punishable under R. 29(a). I therefore convict the accused under R. 29(a) and S. 5(1)(b) of the Act mentioned above read with R. 27 of the rules framed under that Act and sentence him to pay a fine of Rs. 5 with simple imprisonment in default for one week.