The failure to comply with the procedure prescribed under Section 10 of the Prevention of Food Adulteration Act, 1954 is not fatal to the prosecution if the prosecution is able to establish the seizure of the adulterated food beyond reasonable doubt.

( 1 ) THIS Criminal appeal by the State is directed against the Judgment and order of the Judicial 1st Class Magistrate, Adoni, acquitting respondents 1 and 2, (hereinafter referred to as the first accused and the second accused respectively) on charges under Section 16 (1) (i) read with Section 7 of the Prevention of Food Adulteration Act, (Central Act XXXVII of 1954 ).

( 2 ) THE facts of the case relating to this appeal are as follows: The Food Inspector attached to the Adoni Municipality examined in the case as P. W. 1, proceeded to the shop of the first accused who was a dealer in food-stuffs and provisions like ghee etc. , and on 29-5-1957 at about 10 a. m. purchased one seer of ghee from the second accused paying Rs. 1-4-0. He obtained a receipt from the second accused marked as Ex. P-l in the case. The ghee that was sold to him was taken out of a tin of ghee which was lying in the shop. Having thus purchased the ghee in question and obtained the receipt Ext. P-1, P. W. l poured the ghee into three bottles in the presence of the second accused, and marked the bottles as Sample No. 28 and sealed all the three bottles with his seal. At the same time, P. W. 1 served on A-2 a declaration Ex. P-2, to the effect that the ghee was purchased for purposes of analysis. He then delivered one of the sealed bottles to the second accused and the second one he sent to the Public Analyst for examination, and the third one which was kept with P. W. 1 himself, was later produced into the Magistrates Court and marked as M. O. 1. It is the case of the prosecution that the first accused is a licensee for the sale of ghee in his shop No, 14/277 as per the yearly demand list prepared for the year 1957-58 and marked as Ex. P. 4. Ex. P. 3 is the report of the analyst who had examined one of the three bottles that was sealed and marked as sample No. 28 by P. W. 1 as above stated which established that the ghee sample contained 40 per cent of fat not derived from milk or cream and consequently was adulterated. The Public Analyst also found the said bottle marked as sample No. 28, to be properly sealed and fastened and that the seal was in tact and unbroken when he received it. A complaint was accordingly filed by the Food Inspector in the Court below, whose decision thereon is the subject of the present appeal.

( 3 ) IN support of the prosecution, P. W. 1 the Food Inspector and P. W. 2 the Sanitary Mastery of the Municipality who was with P. W. 1, at the time of the purchase of the ghee in question and the sealing of the bottles, were examined.

( 4 ) THE first accused in his defence stated that he was not present at his shop at the time of the incident At the same time he admitted that the shop was his and that ghee was sold in his shop. To the further questions put to the first accused, he stated that he has a licence to sell ghee, that he owns the shop in question, that the second accused is his clerk, and that he was not aware as to what was sold in the shop on the particular day in question. The second accused when questioned by the learned Magistrate stated that he did not sell any ghee to the Food Inspector P. W. 1. He however, admitted that he was in the shop of the first accused on that date and was his clerk. To both the accused, all the material facts appearing in the prosecution evidence against them nave been put, including the execution of the receipt Ex. P. 1 by the second accused. No explanation, however, has been offered by either of them in respect of that document. It is pointed out by the learned Counsel for the accused that the learned Magistrate had stated towards the end of Paragraph 3 of his judgment that the second accused did not know English and that the signature purporting to be that of A-2 in Ex. P. 1 is in Telugu and, therefore, much value cannot be attached to Ex. P. 1, particularly in view of the denial of the second accused of the fact of his having sold any ghee at all to P. W. 1. In this connection