S.K. Verma, J.
1. This is an appeal filed by the State of Uttar Pradesh against the judgment of Sri D. N. Srivastava, Magistrate, 1st class, District Basti, dated 8-10-1956 acquitting the respondent Zalim Lonia of an offence punishable under Section 16(1)(a) read with Section 7(1) of the Prevention of Food Adulteration Act, 1954.
2. The prosecution case was that on 14-3-1956, at about 2 p.m., the respondent was carrying milk for sale. A Food Inspector, Ram Deo Sharma, (P.W. 1), suspected that the milk was adulterated. He purchased twelve chhataks of milk for six annas, divided it into three equal parts and sealed and labelled the same in three phials before the respondent. One phial was given to the respondent, one phial was sent to the Public Analyst at Lucknow for analysis and the third was sent to the Medical Officer of Health. The relevant portion of the certificate of analysis No. 4640 dated 5-4-1956, was as follows :
1. Fat .... 6.1....per cent. The sample is not standard quality.
2..... solids ..... 6.15 per cent (milk solids other than milk fat) and am of the opinion that the sample is adulterated.
3. The sample contained about 31 per cent added water. No change had taken place in the constituents of milk which would have interfered with analysis.
The sample has been judged on the basis of the statutory standards for buffalo milk. Signed this 5th (Sd.) A. C. Chatterji,April, 1956 (A. C. Chatterji)The sample belongs D. Sc., Dr. Ing. (Berlin)to Zalim, son of Kariya Lonia Public Analyst,Uttar PradeshLucknow.'
3. On the receipt of the report the respondent was prosecuted, tried and acquitted as mentioned above. The respondent in his statement admitted the sale of 12 Chhataks of milk to the Inspector as alleged by the prosecution. He also admitted that the milk was sealed in three phials and he had been given one of those sealed phials.
4. In support of the prosecution case one witness was examined, namely, Ram Deo Sharma, the Food Inspector. The respondent also examined one witness in his defence, namely Ram Bali (D.W. 1). Ram Deo Sharma deposed to the prosecution case as mentioned above. In his cross-examination he stated as follows.
'I did not mention in the report whether the milk was of cow or goat or buffalo. I did not write even to the Analyst that the milk was of cow or buffalo or goat. While taking sample I did not enquire from the accused whether the milk was of a cow or buffalo or goat.'
5. The statement of Ram Bali (D.W. 1) was simply to the effect that the respondent had no buffalo and that be sold only cow's milk. The learned Magistrate discarded the testimony of the witness for the defence. He, however, held that, as the sample of milk sent to the Public Analyst for analysis had been judged on the basis of the statutory standards for buffalo's milk, and as there had been no indication that the milk was of buffalo, cow, goat or sheep, there had been a non-compliance of Rule 15 of the Prevention of Food Adulteration Rules. The learned Magistrate went on to observe as follows.
'In the case of this accused the Food Inspector has not stated the nature of milk submitted and the analyst has judged it according to statutory standards of buffalo's milk. The question is how the analysis has been made for buffalo milk when nothing was mentioned, and why it has not proceeded on the basis of cows milk or any other milk, and in that case the result would have been different from what it is now.'
6. He considered this lacuna fatal to the prosecution case and acquitted the respondent. Rule 15 of the Prevention of Food Adulteration Rules reads thus :
'All bottles or jars or other containers containing samples for analysis shall be properly labelled and the parcels shall be properly addressed. The label on any sample of food sent for analysis shall bear :
(a) Serial No,
(b) Name of the sender with official designation, if any,
(c) Name of the vendor,
(d) Date and place of collection,
(e) Nature of article submitted for analysis,
(f) Nature and quantity of preservative, if any, added to the sample.
The learned Magistrate appears to have taken the view that there had been a non-compliance with the requirement of Clause (e) of Rule 16. The Food Inspector had mentioned that he was sending milk for analysis. Rule 5 of the Prevention of Food Adulteration Rules reads as follows :
'Standards of quality of the various articles of food specified in Appendix B to these rules are defined in that appendix.'
Paragraph A 11.01.03 of Appendix B reads thus :
'Goat or Sheep milk shall contain not less than 3.0 per cent of milk fat except in Madhya Pradesh Punjab, PEPSU, Bombay, U. P., Travancore-Cochin where it shall not be less than 3.5 per cent. The milk solids other than milk fat, shall be not less than 9 per cent.
Where milk, other than skimmed milk, is sold or offered for sale without any indication as to whether it is derived from cow, buffalo, goat, or sheep, the standard prescribed for buffalo milk shall apply.'
7. It was, therefore, for the respondent to indicate whether he was selling milk of buffalo, cow, goat or sheep. This paragraph clearly lays down that if no such indication is given the standards prescribed for buffalo milk shall apply. The respondent did not give any indication and simply stated that he was selling milk and the Food Inspector labelled the sample sent for analysis as 'milk'. In these circumstances the Food Inspector had clearly indicated the nature of the article that he had submitted for analysis and there was no contravention of Rule 15 of the Prevention of Food Adulteration Rules. In the absence of any indication on the part of the respondent the sample would be treated as buffalo milk and would be judged an the basis of the statutory standards for buffalo milk. There are certain other paragraphs of Appendix B which are relevant. They are as given below. A.11.01.
Milk means the normal clean and fresh secretion obtained by complete milking of the udder of a healthy cow, buffalo, goat or sheep during the period following at least 72 hours after calving or until colostrum free whether such secretion has been processed or not.
Cow milk shall contain not less than 3.5 per cent of milk fat except in Orissa, where it shall be not less than 3 per cent and in Punjab and PEPSU where it shall be not less than 4.0 per cent. The milk solids other than milk fat, shall be not less than 8.5 per cent. A.11.01.02.
Buffalo milk shall contain not less than 5.0 per cent of milk fat except in Delhi, Punjab, PEPSU, Uttar Pradesh, Bihar, West Bengal, Assam, Bombay and Saurashtra where it shall be not less than 6 per cent. The milk solids other than milk fat, shall not be less than 9 per cent.
It would thus appear that, whether the milk that the respondent was trying to sell was the milk of cow, buffalo, goat or sheep, it was dearly deficient in milk solids other than milk fat. Moreover, there was 31 per cent of added water. Rule 44 of the Prevention of Food Adulteration Rules reads thus :
'Notwithstanding the provisions of Rule 43 no person shall either by himself or by any servant or agent sell -
(b) milk which contains any added water.'
On the basis, therefore, of the deficiency of milk solids other than milk fat and the presence of 31 per cent of added water, the analyst was perfectly justified in coming to the conclusion that the sample was adulterated. Whether the milk was of cow, buffalo, goat or sheep, it could not, and should not, have contained 31 per cent of added water unless the milk had been adulterated. It appears to me that the learned Magistrate overlooked the rules applicable to cases of this kind. In my opinion, the acquittal of the respondent is wrong and must be set aside.
8. For the reasons given above, I allow this Government Appeal, set aside the acquittal of the respondent and convict him under Section 16(1)(a) of the Prevention of Food Adulteration Act for a contravention of Section 7(i) of the Act and sentence him to rigorous imprisonment for three months. The respondent will surrender immediately and serve out the sentence imposed upon him.