Sale of milk from the milk for tea.

This criminal appeal has been filed by the State against the acquittal of the respondent-accused, by the learned Sessions Judge, East Thanjavur Dn., Nagapattinam in Crl. Ap. No. 42 of 1977, which had been preferred by the accused against his conviction by the learned Sub-Divisional Judical Magistrate, Nagapattinam In C.C. 589 of 1976 of an offence punishable under the Prevention of Food Adulteration Act and a sentence of rigorous imprisonment for three months and fine of Rs. 500/- imposed for that conviction.

2. The case of the prosecution was this; P.W. 1 the Food Inspector of Nanilam Panchyat purchased 660ml of milk from the accused's tea shop on Kumbakonam road at Kolathumangudy village at 11 a.m. on 7-9-1976 for 84 paise, after serving a form VI notice, Ex. P-1, under the acknowledgment, Ex. P-3 and obtaining the receipt, Ex. P-2 for the said purchase, P.W. 1 observed the necessary formalities viz. dividing the milk purchased by him into three equal parts, putting them in three separate clean bottles and sealing them and handing over one of the said bottles to the accused and sending one bottle to the Court and the third to the Public Analyst.

3. The Analyst's report, Ex. P-4 showed that the milk was deficient in solids-not-fat to the extent of at least 76 per cent. Subsequently, the accused has been prosecuted under the Prevention of Food Adulteration Act. The accused stated that he was not running the tea shop and it was run by his brother-in-law Kalyansundaram, examined as D.W. 1. D.W. 1 stated that he was running the tea shop and that the sample milk was taken from our of the milk which was being boiled in a vessel in the tea shop and that the milk was not intended for sale, but was only intended for preparing tea. It was suggested to P.W. 1 that the accused's signatures were obtained in Exs. P-2 and P-3 in his house and not in the tea shop. The learned Sub-Divisional Judicial Magistrate accepted the evidence of P.W. 1 that it was the accused who sold the milk to P.W. 1 under the receipt Exs. P-2 and that Exs. P-1 to P-3 had been signed by the accused on in the tea shop where the milk was purchased by P.W. 1. He accepted the Public Analyst's Report Exs. P-4 and found that the accused sold adulterated milk. He accordingly convicted and sentenced the accused as mentioned above. But, on appeal, the learned Sessions Judge of East Thanjavur Dn. at Nagapattinam, found that the sample of milk had been taken from out of the milk that was being boiled in the tea shop and that it was not intended to be sold and therefore, there was no sale of milk as a primary food in this case. Accordingly, he acquitted the accused and set aside the conviction and sentences of rigorous imprisonment and fine awarded to the accused by the learned Sub-Divisional Judicial Magistrate.

4. The learned Public Prosecutor invited my attention to the decision of the Supreme Court in Food Inspector, Calicut v. Gopalan, and submitted that in view of that decision, the finding of the learned Sessions Judge that there was no sale of milk in this case as primary food is unsustainable. On the other hand, the learned counsel for the accused relied upon a decision of Subramonian Poti J. of the Kerala High Court in State of Kerala v. Abdul Khader, 1979 Cri, LJ 295. In that case also, according to the accused the milk was kept for the purpose of preparing tea and, therefore, no sample ought to have been taken from him. The learned Magistrate who tried the case found that the sample milk was kept in the tea shop for preparation of tea and not for sale as such milk and that as such, sample ought not to have been taken under section 10(2) of the Prevention of Food Adulteration Act, 1954. S. 10(2) of the Act and the proviso thereto read -

"Any Food Inspector may enter and inspect any place where any article of food is manufactured, or stored for sale, or stored for the manufacture of any other article of food for sale, or exposed or exhibited for sale or where