Effect of the certificate given by Public Analyst without giving date of analysis.

These two Revision Petitions are filed by the same accused who has been convicted by the Additional First Class Magistrate of Ernakulam of an offence punishable under section 16(1)(a)(ii) read with section 7(1) of the Prevention of Food Adulteration Act XXXVII of 1954.

P.W. 1, the Sanitary Inspector of the Mattancherry Municipality, purchased from the accused 24 oz., of buffalo milk on two dates 12th September, 1958 and 9th March, 1959 when the milk was being taken by the accused to the Madras Cafe for sale. On analysis the milk was found to be adulterated. In both the cases the accused contended that he was only a paid servant of Kuppuswamy Chettiar, his brother and examined witnesses to prove his case. The learned Magistrate disbelieved the defence evidence and found that the accused was a milk vendor and as such was guilty of the offence charged against him. On appeal the learned Sessions Judge also accepted the prosecution evidence and confirmed the conviction and sentence.

The first point that is taken is that the purchase of milk by the Sanitary Inspector in the exercise of the statutory powers under section 10 of the Act does not amount to a sale even though the price had been received by the accused..

Reliance was placed on the decision in Pood Inspector, Calicut v. Parameswaran Chettiar1. In that case the plea of the accused that he was delivering the milk that he had got by milking the buffalo belonging to the proprietor of the coffee hotel and that he was not taking it to the hotel for the purpose of sale was accepted by the Sessions Judge, but the charge that he was called upon to answer was that he had sold one bottle of buffalo milk to the Sanitary Inspector and therefore the question for consideration was whether that transaction of sampling by itself even though the accused was not in possession of the milk for the purpose of" sale would amount to a sale.

Raman Nayar, J., held on the facts of that case that it would be only a case of seizure and compulsory acquisition of the milk in exercise of the powers conferred on the Sanitary Inspector by section 10 of the Act and that it would not amount to a sale. But in has been made clear in that decision that if it is proved that the accused was taking the milk to the coffee hotel for the purpose of sale his very possession of the milk would be sale within the definition of section 2 (xiii) of the Act and he would undoubtedly be guilty of the offence charged.

What was found by the Courts below in this case was that the accused was taking the buffalo milk for sale to the hotel and that the Food Inspector purchased some milk from him which on analysis was found to be adulterated. So it refers to two acts done by the accused; one that he had in his possession adulterated milk for the purpose of sale and the other that he sold adulterated milk to the Sanitary Inspector. The definition of sale in the Act: makes it clear that the sale though not for consumption or use, but only for analysis does not cease to be a sale under the Act. The decision therefore does not help the accused.

The next contention of the learned counsel was that the report of the Public Analyst is incomplete and vague and should not have been made the basis of 1 he conviction. Clause (5) of section 13 prescribes that any document purporting to be a report signed by a Public Analyst, unless it has been superseded by a certificate issued by the Director of the Central Food Laboratory may be used as evidence of the facts stated therein. What the learned counsel for the accused says is that a certificate given by a Public Analyst may be used in evidence., but he contends that the value to be attached to such a certificate would depend upon the facts and circumstances of each case. He points out that where the article sent for examination is capable of disintegration or of undergoing radical change in composition it must be shown that the composition of the sample sent had not undergone any change since it