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Criminal Appeal No. 725 of 1959, decided on 4th May 1962.
Pouring of adulterated milk in cup of tea meant for sale-Amounts to selling of adulterated milk.
M. Iqbal for Appellant.
A. Zaidi for Respondent.
Dates of hearing : 26th and 27th April 1962.
-This Is an appeal by the State against the order of Mr. Jamil Asghar, Sessions Judge, Rawalpindi, dated 22nd of January 1959, who acquitted the respondent.
2. The facts of the case briefly are that the respondent Mirza Amir Beg, son of Mirza Hussain Beg, was the Manager of the refreshment room at Railway Station, Rawalpindi. On the 23rd September 1958, the Food Inspector tool' a sample of milk out of a vessel containing two seers of milk lying In the refreshment room, and sent it to the Public Analyst for analysis, whose report shows that the sample of milk was mixed with added water to the extent of 30 per cent. After receiving the above-mentioned report, the respondent was challaned, who denied his guilt and produced, in his defence, Ashiq Hussain Mirza (D. W. 1) and Muhammad Nawaz (D. W. 20). Ashiq Hussain Mirza deposed that the milk was not sold but was used in the preparation of tea. Muhammad Nawaz D. W. deposed that once he wanted to purchase some milk for his children from the refreshment room but the contractor refused to supply him milk saying that he did not sell milk. The trial Magistrate. Mian Abdus Sattar, Additional District Magistrate. exercising summary powers, by his order dated 27th December 1958, convicted the respondent under section 13 (1) (a) read with section 13(6)(i) of the Punjab Pure Food Act (VIII of 1929) and sentenced him to pay a fine of Rs. 500 or In default to undergo rigorous imprisonment for three months. On appeal, Mr. Jamil Asghar, learned Sessions Judge, Rawalpindi, relying upon an unpublished judgment of Falsbaw, J. of the East Punjab High Court in P. 0, Hagan v. The State (Cr. App. No. 110 of 1959) came to the conclusion that the milk when poured in the cups full of tea gets diluted with a large percentage of water and, therefore, selling of cups of tea with milk already adulterated with water did not amount to selling of adulterated milk. He further held that the prosecution did not establish that the respondent was selling adulterated milk. Consequently, the learned Sessions Judge accepted the appeal, set aside the conviction and sentence of the respondent and acquitted him.
3. The word "sale" is defined in section 3(i) of the Punjab Pure Food Act (VIII of 1929) in the following words: -
"'Sale' means a transfer of ownership in exchange for a price paid or promised, or part paid or part promised, and Includes barter, or offering or attempting to sell, or receiving for sale, or having in possession for sale or exposing for sale or causing or allowing to be sold, offered, or exposed for sale, and refers only to sale for human consumption or use."
The definition of "food" in section 3(d) of the Punjab Pure Food Act (VIII of 1929) is in the following terms: -
"'Food' includes every article used for food or drink by man other than a drug and any article which enters into the com position or is used in the preparation of any such article and also includes flavouring and colouring matters and condiments."
Section 4(i) of the Punjab Pure Food Act (VIII of 1929) gives the meaning of "adulteration" in the following terms: -
"For the purposes of this Act any food shall be deemed to be adulterated-
(1) if it contains or is mixed or diluted with any substance which diminishes in any manner its nutritive or other be neficiary properties as compared with such food in a pure and normal state, or which in any other manner operate to the prejudice or disadvantage of the purchaser or consumer."
3. Learned counsel for the State relied on the provisions of section 12 of the Act and in particular on clause (a) of subsec tion (1) of this section and argued that it should be presumed that the milk which was adulterated was kept for sale. Section 12 (1) provides that in any prosecution under this Act, the Court may presume-
(a) that a person sold or intended to sell a food if such person sold or Intended to sell for human consumption or use any article of which such food is a constituent."
It appears from the file that the milk, a sample of which was taken by the Inspector and sent to the Public Analyst, was found to be adulterated with added water to the extent of 30 per cent. According to section 3(d) of the Act, milk is also food. It was used in the preparation of tea and, therefore, the milk was constituent of the tea offered for sale by the respondent to his customers.
4. The unpublished decision of Falshaw, J. Is neither on the file nor was it produced before us. However, the finding of Falshaw, J. has been incorporated in the judgment of the learned Sessions Judge, which is reproduced below
"In my opinion since milk becomes diluted with a very large percentage of water when it is poured into tea, selling cups of tea with milk already adulterated with water does not amount to selling adulterated milk, and the petitioner could only be pro perly convicted of selling adulterated milk if he sold milk as such."
5. With due deference we are unable to find ourselves in agreement with the observations of Falshaw, J. because the pouring of adulterated milk in a cup of tea, amounts to selling of adulterated milk within the meaning of section 12 (1) (a) as it is a constituent of tea. We are fortified in this view by a ruling of the Lahore High Court reported as Dewan Singh v. Emperor (A I R 1937 Lah. 702). The facts of this case briefly are that Dewan Singh, a halwai, was found in possession of ghee below standard. He was challaned and con victed under section 13(e), Punjab Pure Food Act (VIII of 1929). It was held that the petitioner was found in possession of Ghee below standard and was covered by section 12 of the Punjab Pure Food Act although he does not sell it as ghee but sells it as sweetmeats.
6. Ashiq Hussain Mirza (D. W. 1), son of the respondent, has clearly stated that when they sell tea to their customers in the refreshment room they give its components, i.e., qahwa, milk and sugar, separately. From this statement it follows that milk is sold by the. respondent to his customers for pouring it into tea. The report of the Public Analyst clearly goes to show that the milk found in 1 possession of the respondent was adulterated with water to the extent of 30 per cent. In view of the aforementioned discussion, we accept the State appeal, set aside the order of acquittal, and convicting the respondent under section 13(1)(a) read with section 13(6)(i) of the Punjab Pure Food Act, 1929, sentence him to pay a fine of Rs. 100, or in default to undergo one month's rigorous imprisonment. He will also pay Rs. 10 as costs of the Public Analyst under section 18 of the Punjab Pure Food Act, 1929.
A. H
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