1. This is an appeal by the State, Government against an acquittal of the offence under Section 5(2) of the Central Provinces Prevention of Adulteration Act, 1919, for selling adulterated milk.
2. It is admitted that the 1st respondent lives in the upper storey of a house in front of which the milk is said to have been sold. According to the prosecution, whose case is proved by Dhawle (P.W. 1) and Abdul Rahman (P.W. 2) and corroborated by Anant (P.W. 3), the respondent sells milk daily in front of her house on an 'ota'. P.W. instates that on the 10th November 1949 at 9.30 in the morning he saw her selling milk there, so he went and asked her for a sample. She told him that water had been added to the milk. He said that nevertheless he required a sample. Accordingly three bottles were produced. The witness says that these bottles had been cleaned beforehand and were dry. Some 5 to 6 drops of formalin were added to each bottle and then the milk which was being sold was poured into these three bottles. The witness paid for the milk and obtained a receipt from the 1st respondent. The bottles were then sealed and labelled. One was left with the 1st respondent, one was sent to the Public Analyst and the third was produced in Court.
3. The Public Analyst certifies that the sample falls short of the standard of purity for buffalo milk prescribed by the State Government. The standard prescribed is that buffalo milk shall contain at least 5 per cent milk fat and at least 9 per cent solids excluding fat. The certificate of the Analyst says that the fat content of the sample was only 3 per cent and the solids excluding fat only 5.74 per cent. Accordingly the sample clearly fell short of the standard of purity prescribed.
4. Section 5(1) of the Act prescribed that
The Provincial Government may, by notification, determine the standard of purity in the case of any article of food, and, in determining such standard, may provide what deficiency in any of the normal constituents of such article.shall raise a presumption, until the contrary is proved, that the article is not genuine or is injurious to health.
We have already set out the standards prescribed. Accordingly the burden of proof shifts to the accused to show that the milk was not adulterated.
5. The learned Magistrate who tried the case considered the evidence somewhat doubtful and gave the accused what he considered was the benefit of the doubt. Accordingly he acquitted her. In our opinion this acquittal is perverse.
6. The most important point in this case is that the accused is literate, at any rate to the extent of being able to sign her name. When she was asked to give P.W. 1 a sample of the milk she was selling she gave him her own bottle. She admits that in her examination. Further she signed the receipt (Ex. P. 1) which states:
You have, this day, purchased from me 30 tolas of buffalo milk on payment of 3 annas in cash.. You have purchased this buffalo milk for being sent to Nagpur for examination.
The receipt also sets out that the milk was divided into three equal parts and placed in three bottles one of which was given to the accused. The accused gives no explanation of this beyond the fact that she was asked to sign the receipt and so did sign it. She was specifically asked, 'Did you keep the milk exposed for sale on the total of your house' Her reply was evasive. She did not deny that she sold the milk. All she said was that, 'The milk was not mine'. Now under the Act it 4oes not matter who originally owned the milk. The question is, did the accused sell it or offer for sale? The evidence produced here, if believed, unquestionably establishes that she sold the milk to P.W. 1. (After discussing the evidence the Judgment proceeds:) Therefore, considering the evidence as a whole, we think it perverse, in the absence of any explanation of the facts set out above, to conclude that the prosecution case is false. Disagreeing with the learned Magistrate who tried the case, we hold, on the evidence of P. Ws. 1 and 2 coupled with the receipt Ex. P. 1, that the accused did sell the milk in question.
7. The next point is whether the milk was adulterated. The milk was purchased on the 10th November 1949. It appears to have been examined by the Public Analyst on the 2lst November, 1949. Any way that is the date of his report. It is argued that milk goes bad with lapse of time and therefore it is not possible to determine whether 4th has been adulteration. We were referred to a judgment of Mudholkar J. in Dattappa v. Secy. Municipal Committee Criminal Revn. No. 28 of 1950, decided on 23.5.1950, in which the learned Judge reaches that conclusion. But with the utmost respect, we are unable to agree. The authority reaches that conclusion. But with the utmost respect, we are unable to agree. The authority on which the learned Judge relies deals with an alteration in the acidity of the milk. It is common knowledge that there is bacterial action if milk is left exposed for any length of time and that does effect a change in the chemical composition of some of the elements and produces lactic acid. But there is nothing to indicate that the proportion of the fat content and of the other solids excluding fat is altered by reason of this change. The learned Judge has reached this conclusion on his own. In the absence of any authority, and considering the fact that the Act lays the burden on the accuse, we are unable to reach such a conclusion. But that apart, in the present case It is proved that formalin was added to the bottles. Now the point of formalin is that it acts as a preservative and consequently prevents bacterial decomposition and prevents the formation of lactic acid in milk. It was open to the accused to produce either text books or experts to show that this is not the effect of adding formalin. We do not know whether formalin was added in the case before Mudholkar J. or not. In any event, as he has not referred to it that in itself would act as a distinguishing feature.
8. It was then contended that the accused should have been given an opportunity of cross-examining the Public Analyst. She was given that opportunity. When she put in her written statement the Court endorsed on it that 'The accused can examine him if she wants to examine him as defence witness or he will be examined on commission if accused wants that.' That was on the 29th June 1950. The order-sheet of that date is as follows:
Shri Awasthi who appeared for the accused by wants to examine the Public analyst on commission. He is ready to pay necessary expenses.accused is asked to deposit Rs 10 in the Court and file interrogatories for examination of witnesses on commission.
On the next hearing, 10th July 1950, we find this:
Accused does not wish to put up Interrogatories. Shri Awasthi counsel for accused put up an application to that effect.
This shows that the accused was afforded an opportunity of examining and cross-examining the Public Analyst by means of interrogatories. She was also given a chance of calling him as her own Witness if she wished. She deliberately gave Mm up. Nor did the Court prevent her from calling her own expert and proving that the fact of leashing milk for some time does alter the fat content and the other solid contents, either with or without formalin.
9. Lastly it was argued on the strength of an authority to which Mudholkar J. refers that all milk animals do not produce milk having the same fat content and that in some cases the natural milk of the animal falls below the stands prescribed; in a case like that there is no adulteration. Accordingly we were asked to give the benefit of the doubt to the accused and assume that In the present case the reason for the milk falling below the prescribed standard was that the animal in question gave milk naturally of that kind. We are unable to do that because of Section 5(1) of the Act There the burden is on the accused. It is open to her to produce samples of the milk and to produce her own analyst. She has not done that. As be has not done that we are bound to presume under the Act that the milk was adulterated and further that the accused knew that. The knowledge of the accused is to be presumed under Section 5(3) of the Act.
10. The appeal succeeds. The acquittal the aside and we convict the accused under Section 5(2) of the Act and sentence her to a fine of Rs. 100/- because under Section 14A (added by Act XXXV of 1949) that is the minimum prescribed.