P L D 1962 (W (PLP)

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 The unpublished decision of Falshaw, J. Is neither on the file nor was it produced before us.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 Appeal accepted.