H.C.P. Tripathi, J.
1. These revisions are directed against an order of the learned Additional Sessions Judge of Agra., maintaining on an appeal the conviction and sentence of the applicant under Sec. 16(1)(a)(ii) of the Prevention of Food Adulteration Act.
2. The prosecution case in short was as follows:
The Food Inspector, Sri V. N. Singh, detected the applicant selling adulterated milk on January 19, 1962 in a mohalla in the city of Agra. He purchased some milk for sample and after putting it in threesealed bottles according to the rules handed over one of them to the applicant and sent one to the Public Analyst for report. The report of the Public Analystshowed that the sample was mixture of cow and she-buffalo milk and deficient in fat contents by 24%. When the sample was taken Saheb Singh took theplea that he was selling the milk not for himself but on behalf of his employer Gulzari.
3. A complaint was filed by the Nagar Swasth Adhikari against Gulzari and the applicant underSection 7/16 of the Prevention of Food Adulteration Act. At the trial the applicant and Gulzari both pleaded not guilty. Gulzari's defence was that the applicant was not his servant and that he had nothing to do with the sale of the milk in question. The applicant, on the other hand, asserted that he was selling that milk not for himself but on behalf of Gulzari. Thelearned trial Magistrate convicted both Gulzari and Saheb Singh. On appeal, however, the learned Sessions Judge acquitted Guizari, but maintained theconviction of Saheb Singh, though his sentence of fine was reduced from Rs. 600/- to Rs. 300/-, but the sentence of imprisonment was upheld.
4. Saheb Singh admitted that he was selling milk on the date suggested by the prosecution, sampleof which was taken by the Food Inspector accordingto the rules. He, however, asserted that he was selling it not for himself but for his employer Gulzari and he had committed no offence. The report of the Public Analyst clearly established that the sample of milk was adulterated and deficient in its fat contents by 24%.
5. The question, however, remains whetherSaheb Singh can be convicted on these allegations.From the fact that Saheb Singh took the plea that hewas selling the milk not on his own account but onbehalf of Gulzari at the time the sample was taken, I am satisfied that his assertion in this regard iscorrect. Saheb Singh could not have named Gulzari on imagination and the assertion of Gulzari that he had nothing to do with the adulterated milk was purposive and in all probability false. The learned Sessions Judge was, therefore, not justified in recording his acquittal. Provisions of Section 7 of the Act are too wide and a person selling food stuffs on behalf of his mister also comes within its mischief.
However, there appears to be an insuperable difficulty in the way of prosecution. At the time of the taking of the sample the applicant stated that it was a mixture of cow and she-buffalo milk. The Public Analyst's report shows that the sample had 3.6% fat and 9.4 non-fatty solids. This is undoubtedly Mess than the standard prescribed for the buffalo milk, but above those which are prescribed for the milk of a cow. No standard has been fixed under therules for a mixture of buffalo and cow milk. No doubt it has been provided under the rules that whenmilk 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. In this case, however, it was indicated that the milk had been derived from cow and buffalo both and therefore the provision for milk whose source has not been indicated will not apply. In my opinionin such a case where no standard has been fixed under the rules for mixed milk, whether the sample taken is adulterated or not should be determined on the basis of the standard fixed under the rules for cow's milk. If the fat and non-fatty contents of the sample are less than those as fixed for cow's milk under the rules, then the sample must be held to be adulterated, because in whatever quantity the buffalo milk is mixed with cow-milk, its contents cannot be below that standard. In the instant case the contents of the sample are above the standard prescribed for. cow's milk. In my opinion, therefore, it will not be expedient in the interest of justice to convict the applicant by holding the milk which he was selling to be adulterated by applying the standard fixed for buffalo milk, I am supported in this view by a Division Bench case of the Punjab High Court reported in State v. Raja Ram Ram Saran, (1964) 2 Cri L J 113 (Punj). From the report of the Public Analyst it does not appear how he came to the conclusion that the sample was dificient in fat contents by about 24%.
6. The revision is allowed and the conviction and sentence of the applicant is set aside. He is on bail. His bail bonds are discharged. He need not surrender, The fine, if paid, shall be refunded to him.