Indian Kanoon - Search engine for Indian Law

3. The accused denied the offeree alleged against them. Thereupon the prosecution examined PWs. 1 to 4 and proved Exts.P1 to 5. PW.3 is the Food Inspector and PW.4 his Peon. The accused No. 1 took the stand that she had no connection with the establishment. Accused No. 2, inter alia, contended that there was no proper sampling. The Food Inspector had no jurisdiction to draw the sample as the milk was not intended to be sold as such milk at the Restaurant. It was further contended that at any rate it must be held that there is no adulteration as the sample does conform to the standards prescribed for cow's milk and the standards applicable for buffalo's milk were wrongly applied to the sample. Another employee of the Restaurant was examined as DW. 1. Ext.D1 menu card of the Restaurant was also produced and marked. A Court exhibit was marked as Ext.C1.

Provided that no sample of any article of food, being primary food, shall be taken under this sub-section if it is not intended for sale as such food."

8. Section 10(2) invests the Food Inspector with the power and authority to enter and inspect any place, where any article of food is kept for sale. But the proviso to Section 10(2) contains a mandate that the Food Inspector shall not take any sample of a primary food unless such primary food is intended for sale as such food. The accused contends that the milk found in the premises of the Restaurant was not intended for sale as such milk and was intended to be used for preparation of food articles in the Restaurant. It was, no doubt, intended for sale in the sense that the food items prepared using such milk would be sold. In this view of the matter, following the dictum laid down in Food Inspector, Calicut Corporation v. Gopalan and Anr. (1971 KLT 462) the milk is intended to be sold. But the contention is that the milk was not intended to be sold as such milk. Reliance was placed on two decisions of this Court reported in Food Inspector v. Abdul Khader (1978 KLT 830) and Poulose v. Food Inspector (1992 (1) KLT 522). It is by now trite that the milk is an item of primary food and sample of milk cannot be drawn from a premises unless it is intended to be sold as milk.

10. The learned Counsel for the petitioners contends that there are many indications which probabilise the case of the accused that the milk was not intended to be sold as such milk. He first of all relied on the menu card, in which milk is not an item offered for sale. He then relied on the admitted circumstance that the sample was found in the kitchen of the restaurant indicating that it was used intended to be for preparation of articles in the kitchen. He also relied on the Public Analyst's report, Ext.P2, which shows that the milk sample contains added sugar. This was of course contrary to the assertions made by PW.3. But the fact remains that the milk found in the kitchen had added cane-sugar in it.

14. I have anxiously considered all the relevant inputs. The fact that the milk is not an item of food mentioned in Ext.D1 menu card may not clinch the issue. It cannot be insisted that all articles offered must be shown in the menu card also. Probably, because of this we find the accused and DW. 1 denying the fact that tea/coffee was also offered for sale at the Restaurant. Merely because milk is not an item of food enumerated in Ext.D1 as available at the Restaurant it cannot be concluded that milk was not available for purchase at the Restaurant. But certainly that is an indication which can be used to favour the contention of the accused on broad probabilities. Similarly the fact that milk sample was available in the kitchen-is also one indication which could suggest that milk was kept there to be used for the preparation of other items of food. It may not be convincing, conclusive and clinching. But certainly this is one indication which would show that milk was intended to be used for the preparation of other articles of food. I am in agreement with the learned Counsel for the revision petitioners that in these circumstances the Food Inspector must certainly have enquired and satisfied himself whether the milk was intended to be sold as such milk. We have no entry in any contemporaneous document to show that the milk was intended to be sold as milk and that the Food Inspector had satisfied himself of this crucial fact. On probabilities, therefore, the contention of the accused that the milk was not intended to be sold as such milk appears to be impressive.