N.N. Sharma, J.
This appeal is directed against order of acquittal recorded on 16.11.1977 by Sri K.P. Mathur, learned special Judicial Magistrate, Allahabad in Criminal Case No. 1775 of 1976 under Sections 7(i)/16(i)(a)(i) of Prevention of Food Adulteration Act 1954.
2. On 17.11.1975 at about 9.30 A.M., Sri I.N. Wahab, Food Inspector, Nagar Mahapalika, Allahabad found respondent selling mixed cow and buffalow milk, Food Inspector disclosed his identity, and served notice in Form VI Ex Ka I on respondent and purchased 700 ml. milk from respondent in presence of witnesses on payment of Rs. 1.50 as price vide receipt Ext. Ka 2; sample was sent to the Public Analyst vide report Ext. Ka3 dt. 23.12.1975; on analysis it was found that the sample contained fat 3.5% and non fatty solids 9.4% (milk solids other than milk fat). The sample was deficient in fat contents by about 18% according to the standard for cow buffalo mixed milk. After procuring necessary sanction for prosecution from the Chief Medical Officer concerned a complaint was filed.
3. Prosecution examined Sri I.N. Wahab, Fobd Inspector (PW 1) and Suresh Chandra Srivastava (PW 2) to prove the necessary documents.
4. In his statement under Section 313 Cr.PC respondent denied the sampling and examined himself as DW 1. In that statement, he alleged that he disclosed that the milk was of cow and he was illiterate and so his signatures on acknowledgment due receipt were not genuine.
5. Learned trial Magistrate observed that the standard prescribed for mixed milk as given in Appendix 13 of the Rules framed under the Prevention of Food Adulteration Act at item A-11. 01-11 was fat contents 4.5 and non fatty solids contents 8.5. In the instant case, the aggregate of fat and non fatty solids contents comes to 13.3 which exceeded the aggregate fixed by the standard which ironies only to 13.0 and so the accused-respondent could not be punished on the ground of such marginal deficiency which might be due to error in analysis by the Public Analyst. In the result, the respondent was acquitted.
6. I have heard learned Counsel for the parties and perused the record.
7. Learned Advocate for the appellant attacked this finding and argued that such presumed error in chemical analysis could not afford a ground for acquittal as was held in Municipal Committee. Amristar v. Hazara Singh reported in 1975 All Cri C Page 193 at Page 195 : 1975 Cri LJ 928 at P 930 SO which posited:
The standard fixed under the Act is one that is certain. If it is varied to any extent, the certainty of a general standard would be replaced by the vagaries of a fluctuating standard. The disadvantages of the resulting unpredictability, uncertainty and impossibility of arriving at fair and consistent decisions are great.
8. Learned Advocate for respondent pointed out that in that case despite the said observations, the order of acquittal was not disturbed by the Supreme Court for the reasons given in that authority.
9. Learned. Advocate for the appellant further pointed out an authority of this Court reported in Nagar Swasthya Adhikari Nagar Mahapalika, Kanpur v. Guru Prasad (1982) 1 F.A.C. 237 : 1982 All LJ 149 which is exactly in point. In that case also, the lower appellate Court wrongly acquitted the accused on the ground that the milk was deficient only in non fatty solids by 11 percent but not in milk fat and the aggregate as found by the Public Analyst exceeded the percentage prescribed by the standard for mixed milk. Such order of acquittal was struck down on the ground that this view was not in consonance with Full Bench decision of this Court as reported in Prem Das v. State (1979) 1 F.A.C. 63 and 1961 (2) Cri LJ 737 a Division Bench of this Court in State of U.P. v. Nafri Ram 1964 All LJ 59. Other authorities were also cited in that case which need not be multiplied.
10. No authority to the contrary was cited before me on behalf of respondent. However, Sri P.S. Misra tried to support the judgment on the ground that the acknowledgment due receipt did not contain the thumb impressions of the respondent, who is illiterate, and who in his statement denied' his signatures on acknowledgment due dt. 17.2.76. I have perused that document which contained the name and the correct address of respondent. It appears that this point was not pressed before the Court below who disbelieved the respondent in view of his shifting stand. Learned Advocate for respondent also pointed out that the respondent was not served with a copy of the report of Public Analyst within time. These contentions are also not weighty. It appears that even prior to the filing of the complaint in Court, respondent was informed about his right to get the sample analysed by the Director, Central Food Laboratory. He did not do so nor it was shown that he was prejudiced thereby. Rule 9(j) of Prevention of Food Adulteration Rules, 1955, was simply directory and not mandatory, as was laid in Ramdhani v. State (1982) 1 F.A.C. 268 : 1982 All LJ NOC 85 and Naney v. State of U.P. (1982)1 F.A.C. 49 : 1982 Cri LJ 158 (All).
11. So I respectfully follow the said authorities and find that even non observance of any part of this rule could not vitfate the criminal proceeding against the respondent. The result, therefore, is that the order of acquittal recorded by learned Magistrate was unjustified.
12. Having regard to the deficiency detected in milk and the efflux of time while setting aside the order of acquittal, respondent is convicted under Section 7/16 of Prevention of Food Adulteration Act, and sentence of fine of Rs. 250/- is imposed on him. In default he shall undergo three months rigorous imprisonment. The fine shall be deposited within three months of the receipt of the record by the trial Court. Office shall expedite the despatch of the record to the Court below.