S.N. Dwivedi, J.
1. This is an appeal by the Municipal Board, Kanpur, against the order of the Additional City Magistrate, Kanpur, acquitting the respondent of the offence under Section 7 read with Section 16 of the Prevention of Food Adulteration Act (VII of 1954), hereinafter called the Act.
2. Badloo respondent was found selling milk on 24-9-1957. When asked by the food inspector he informed that he was selling mixed milk oil cow and buffalo. Thereupon the food inspector purchased some milk for the purpose of taking a sample thereof. One part of the sample was sent to the Public Analyst for examination. The Public Analyst reported that the sample contained 4.8 per cent fat and 7.4 per cent non-fatty solids. In his opinion the sample contained about 15 per cent added water and was adulterated. He has clearly stated in his report that the sample was analysed on the basis of the standards for mixed milk (cow and buffalo).
3. The Oral evidence is of little importance. The Municipal; Board tried to secure the conviction of the respondent on the report of the Public --Analyst. The report, according to the learned Magistrate, did not prove the respondent's guilt beyond reasonable doubt. Notwithstanding the strenuous arguments of learned counsel for the Municipal Board I have also arrived at the same conclusion,
4. Section 16(1)(a) of the Act prescribes punishment where any person sells any article of food in contravention of any provision of the Act or the rules made thereunder. Section 7 prohibits the sale, inter alia, (i) of any adulterated food and (ii) of any article of food in contravention of any provision of the Act or the rules made thereunder. Section 2(i) defines adulterated food. The defini-tion clause contains several sub-clauses, but Sub-clause (i) alone is piertinent to the case. According to Sub-clause (1) an article of food is adulterated, if the quality or purity of the article falls below the prescribed standard or its constituents are present in quantities which are in excess of the prescribed limits of variability.
Section 2(xii) declares that 'prescribed' means, prescribed by rules made under the Act. Section 23(1) empowers the Central Government to make rules, and by Sub-clause (b) of Sub-section (1) thereof the Central Government is enabled to frame rules defining standards of quality for, and fixing the limits of elemental variability permissible in respect of, any article of food. By Sub-clause (m) of the same sub-section the Centra] Government is empowered tq make rules for prohibiting or regulating (i) addition of any water tq any article of food and (ii) the sale of any article of food to which such addition has been made. The Central Government has framed rules which are called the Prevention of Food Adulteration Rules, 1955. Rule 5 lays down that standards of quality of various articles of food specified in appendix B to the Rules would be as defined in that appendix.
Appendix B prescribes among others the standards of quality for cow milk and buffalo milk. The cow milk in Uttar Pradesh shall contain not less than 3.5 per cent fat and not less than 8.5 per cent non-fatty solids. The buffalo milk shall contain not less than 6 per cent fat and not less than 9 per cent non-fatty solids, Rule 44 provides that no person shall sell inter alia milk which contains any added water. Sections 8, 11(3) and 13(1) of the Act deal with the appointment and duties of the Public Analyst, Sub-section (5) of Section 13 provides that any document purporting to be a report signed by a Public Analyst may be used as evidence of the facts stated therein in any proceedings under the Act.
5. From the above summary of the pertinent provisions of the Act and the Rules it would appear that there are no statutory standards of quality or statutory limits of componental variability for mixed milk of cow and buffalo. The public Analyst has first found the mean between the prescribed standards of cow milk and buffalo milk; he has then tested the .sample by the mean standard. His opinion that the sample was adulterated is therefore based upon the mean standard, which is his own creation and has no statutory support. It would be illegitimate to coerce conformity with his standard by penal sanction. Courts of law would refuse to accord it a,ny sanctity until it lias received statutory acknowledgement.
6. I have worked out the mean standard for mixed milk of cow and buffalo, which is as follows:
Fat 4.71/2 per centNon-fatty solids 8.71/2 per centWater 86.5 per cent.
According to the Public Analyst the sample contained 4.8 per cent fat and 7.4 per cent non-fatty solids. The aggregate of fat and non-fatty solids was 12.2 per cent, and hence the quantity of water in the sample was 87.8 per cent, Water was, therefore, in excess by 1.3 per cent. It is difficult to reconcile with this calculation the opinion of the Public Analyst that the sample contained about 15 per cent of added water. The report of the Public Analyst can therefore have little probative value, and it will be unsafe to hold on its basis that the respondent is guilty of contravening the provisions of Rule 44 (b),
7. Water is one of the natural constituents of milk. To my knowledge neither there is nor there can bei an agreed opinion about the exact natural quantity of water in various kinds of, unadulterated milk. The report of the Public Analyst does not state what was the actual percentage of water in the sample and unless that is specified it is not possible for the Court to test the accuracy of his opinion since standards vary for various reasons. It must be remembered that it is the Court, not the Public Analyst, who is the ultimate Judge of the question. The report must therefore be ignored altogether.
8. In similiar circumstances the certificate of the Analyst was given no effect in Fortune v. Hansoo, (1896) 1 QB 202, There the Analyst had given an opinion that the sample of adulterated, milk contained 5 per cent of added water. Mr. Justice Hawkins at page 205 of the report, observed:
'It has been stated to be, and no doubt is, the fact that there is a great variation between. the standards adopted as to what percentage of water found in miik would be sufficient to show that water had been added. I think the magistrates are entitled to inquire, and the Legislature intended they should have a statement, in such a case as this, of the parts of which the sample was composed. To say merely that a sample of milk contained 5 per cent of added water is only to state the analyst's own opinion that water has been added. The magistrates have to exercise their, own judgment on the question. They may adopt one standard the analyst another. They ought to be informed by the certificate what was the total percentage of water found in the sample.'
Mr. Justice Kennedy, who agreed with Mr. Justico Hawkins. observed:
'Nobody, in my opinion, who knew how debatable the point is as to the proportion of water-to be found in unadulterated milk under different circumstances, could fairly say that'll person ought to be convicted of an offence against the statute* on the mere statement that the miik contained1 5 per cent of added water. I think it would be wrong to convict on that alone.'
9. Again, in Newby v. Sims (1894) 1 QB 478, it was held that the court could not convict a man of selling adulterated rum on the Analyst's certificate that it contained 13 per cent excess-water.
10. For the reasons discussed above I hold thatthe Municipal Board has failed to prove that therespondent sold the sample milk in contraventionof the Act or any rule made thereunder. Theappeal is accordingly dismissed.