JUDGMENT

D.S. Mathur, J. - This is an appeal by the Nagar Swasthya Adhikari of the Nagar Mahapalika of Agra against the order dated 28-2-1966 of the Magistrate First Class, Agra, acquitting the respondent, Jawahar Singh, of the offence punishable under Section 16 of the Prevention of Food Adulteration Act for contravention of Section 7 thereof.

2. The material facts of the case are that on 30-3-1965, at about 10.30 a.m., Kunwar Singh (P. W. 1) , Food Inspector, was out on checking duty in Mohalla Motibagh Jamuna Bridge within the limits of the Nagar Mahapalika Agra. He found the respondent, Jawahar Singh, selling milk from his Tanki. On inquiry he told the Food Inspector that it was goat's milk. After serving notice under Rule 12 of the Prevention of Food Adulteration Rules on the respondent, he obtained a receipt Ex. Ka. 1, bearing the left thumb mark of the respondent. The Food Inspector purchased 24 ounces of milk for the purpose of sample, after paying .45 Paise for the same and obtained the receipt Ex. Ka. 2. He then divided the purchased milk in three parts, kept each part in a bottle and mixed 16 drops of 40% strength of formalin to each. Thereafter, he sealed the bottles and placed the prescribed labels. The bottles were then resealed and one of them was given to the respondent and the other two were deposited with the Nagar Swasthya Adhikari. One of these two bottles was sent to the Punblic Analyst, Lucknow, for analysis and report.

3. The Public Ananlyst reported that the sample contained 4.8% fat and 6.3% non-fatty solids. As the non-fatty solids were deficient by about 30%, he expressed the opinion that the milk (goat) was an adulterated one. On receipt of the re-, port the Nagar Swasthya Adhikari moved the complaint before the Magistrate which was taken cognizance of on 17-7-1965. The respondent put in appearance on 11-8-1965.

4. Jawahar Singh pleaded not guilty. He admits the taking of the sample but says that the milk was not meant for sale: it was being taken to his son-in-law, Ranpal (D. W. 2) . He further stated that his thumb mark was obtained on the documents under compulsion. Two witnesses namely Sunabri Lal (D. W. 1) and Ranpal (D. W. 2) were examined in defence.

5. The learned Magistrate did not express any opinion on the merits but acquitted the respondent on two grounds: firstly, that the Food Inspector had not complied with the provisions of Section 10 (7) of the Prevention of Food Adulteration Act and seconly, that there was a delay of 48 days in sending the sample to the Public Analyst. On the first point, it was also observed that no explanation had been furnished why the witnesses to the taking of the sample had not been examined.

6. Both the points which appealed to the learned Magistrate, have no substance. Section 10 (7) of the Prevention of Food Adulteration Act was amended under the Amending Act 49 of 1964 though the amendments came into force from 1-3-1965. Section 10 (7) as it existed prior to the amendment was as below :-

"Where the Food Inspector takes any action under clause (a) of sub-sec. (1) ,sub-sec. (2) , sub-sec. (4) or sub-sec. (6) , he shall, as far as possible, call not less than two persons to be present at the time when such action is taken."

7. The amended Section 10 (7) is as below :-

"Where the Food Inspector takes any action under clause (a) of sub-sec. (1) , sub-sec. (2) , sub-sec. (4) or sub-sec. (6) , he shall call one or more persons to be present at the time when such action is taken and take his or their signatures."

8. A comparison of the two provisions shall make it clear that the Parliament made major changes therein. The words 'as far as possible' used in the un-amended provision were deleted and at the same time the minimum number of persons to be present at the time action is taken by the Food Inspector, was reduced from 2 to 1. The law with regard to un-amended Section 10 (7) can be said to be beyond controversy. It was generally held that the provision was direc