T.P. Naik, J.
1. The accused-applicant Ramdayal was convicted by the Magistrate, First Class, Jabalpur, under Section 7, read with Section 16, of the Prevention of Food Adulteration Act, 1954, for selling in the town of Jabalpur, on the morning of the 28th of October 1961, at about 6.30 a.m., adulterated milk, and sentenced to rigorous imprisonment for a period of one year, together with a fine of Rs. 1,000, or, in default, further rigorous imprisonment for a period of three months, taking into consideration that the applicant had two previous convictions to his credit. On appeal, the First Additional Sessions Judge, Jabalpur, maintained both the conviction and the sentence. He has now come up in revision to this Court against his conviction and sentence aforesaid.
2. According to Gujarati (P.W. 1), the Food Inspector of the Corporation of Jabalpur, while he was sitting at Tula Ram Chowk to take samples of milk for the purpose of detecting adulteration, he found that the accused was going on a cycle with milk in tin-cans for the purpose of its sale. The accused had about four seers of milk and a milk-measure with him. He gave the accused a notice in Form VI intimating his intention to purchase milk from him by way of a sample for the purpose of analysis. He then purchased three paos of milk which the accused stated was the mixed milk of cow and buffalo. He paid .47 nP to the accused as the price of the milk, for which the accused passed a receipt (Ex. P 3) in token of his having received the price. He then divided the milk into three equal parts and filled them up in three sterilized bottles. He added eight drops of formalin as a preservative in each bottle. The bottles were duly sealed, labelled and fastened. He then put his signatures on the bottles and obtained the signatures of the accused on the covers of each bottle also. One such bottle was handed over to the accused and his acknowledgment was taken vide Ex. P 2. One bottle was sent to the Public Analyst, Bapat (P.W. 2). According to his report (Ex. P 5) the milk was deficient in solid nonfat, as it contained 5.7 per cent solid non-fat as against 8.5 per cent which was the prescribed minimum. In his opinion, the milk was adulterated. The evidence of the Food Inspector (P.W. 1) was further corroborated by that of Bhuvendra (P.W. 3), who was a witness to the purchase and seizure of the sample of milk from the accused.
3. The aforesaid evidence, which has been accepted by the two Courts below and which I see no reason to discard, fully establishes that the milk, which the accused was selling on the morning of the 28th of October 1961 was adulterated milk.
4. The first contention of the learned Counsel for the applicant is that there was no proof that the accused-applicant was a milk-seller. In my opinion, there is no basis for such a contention. The accused was found going on a cycle with milk contained in tin-cans. He had also a milk-measure in his possession. He also sold milk to the Food Inspector (P.W. 1) on his asking for it for which he was paid its price. The aforesaid evidence thus leaves no room for doubt that the accused was selling milk, which was, on analysis, found to be adulterated. Apart from the aforesaid evidence, there is also the positive evidence of the Food Inspector (P.W. 1) that he had seen the accused selling milk a number of times and that to his knowledge was a milk seller.
5. The second contention of the learned Counsel for the applicant is that the Food Inspector (P.W. 1) did not get his purchase of the samples of milk and its sealing witnessed by at least two persons as required by Section 10(7) of the Prevention of Food Adulteration Act under that section, where the food Inspector takes any action under Clause (a) of Sub-section (1), Sub-section (2), Sub-section (4), or Sub-section (6), he shall, as far as possible, call not less than two persons to be present at the time when such action is taken and take their signatures. It would be seen that the direction which is prefaced by the expression 'as far as possible' is not absolute in its terms. The non-calling of at least two persons to witness the taking of the sample by the Food Inspector could not, therefore, vitiate the trial unless it was deliberate and mala fide on his part. Whether and how many witnesses the Food Inspector calls to witness he actions will depend on the facts and circumstances of each case.
No doubt, in this case, the time at which the sample was taken was early morning. According to the Food Inspector (P.W. 1), there were not many people on the road. Only Bhuvendra Bhandar was open, Consequently, he had got the proprietor of that Bhandar to witness the taking of the sample of milk and its seizure. There were some people passing by on cycles; but he did not consider it necessary to detain them. He further said that the whole procedure had taken him about half an hour. From the aforesaid circumstances, I am quite satisfied that the non-examination of at least two persons, as contemplated by Section 10(7) of the Act, does not vitiate the trial I may however, remark here that in such cases the Food Inspector would always be well advised to keep at least two witnesses required under Section 10(7) of the Prevention of Food Adulteration Act to be present to witness his actions, because it may be that his non-compliance with the provisions of that Section may be interpreted as evidence of his mala fides.
6. The last contention of the learned Counsel for the applicant is that the trial was vitiated because the Food Inspector (P.W. 1), before sending the sample of milk for analysis, had not mixed with it the prescribed quantity of formalin. Under Rule 19 of the Rules framed under the Prevention of Food Adulteration Act, known as the Prevention of Food Adulteration Rules, 1955, any person taking a sample of any food for the purpose of analysis under the Act may add a preservative as may be prescribed from time to time to the sample for the purpose of maintaining it in a condition suitable for analysis. Under Rule 20, the preservative used in the case or samples of any milk (including skimmed and separated milk), cream and gur in liquid or semi liquid forms shall be the liquid commonly known as 'formalin', that is to say, a liquid containing about 40 per cent of formal dehyde in aqueous solution in the proportion of two drops for one ounce of the sample.
There is no dispute that in each bottle eight ounce of milk was kept by the Food Inspector (P.W. 1) in the instant case. Consequently, each bottle of milk required sixteen drops of formalin. This Food Inspector (P.W. 1) has admitted that he had put only eight drops of formalin in each bottle. From this admission of the Food Inspector (P.W. 1), the learned Counsel for the applicant argues that the non-mixing of the requisite quantity of formalin in the bottle of milk may have had some effect on the analysis. I do not agree. The Rules show that the mixing of the formalin to the sample is for the purpose of maintaining it in a condition suitable for analysis. The evidence of Bapat (P.W. 2), the Public Analyst, does not show that the non-mixing of 16 drops of formalin in each bottle had affected its suitability for analysis. On the other hand, his evidence is that any impurity in the formalin would not affect the analysis, as only about 8 drops of formalin were to be put in it, thereby suggesting that 8 drops were enough for its preservation.
No authority has been cited before me to show that if the sample of milk of eight ounce is mixed with less than the prescribed quantity of formalin, it would per se not be suitable for analysis. On the other hand, the learned author of 'A Text book of Dairy Chemistry1, Edgar R. Ling says that where 'fat and solid matter estimation is required, formalin should be used at the rate of 1 millilitre per quart sample, as it has been found that when used in this concentration, there is no perceptible effect on the percentage of total solids as determined by the usual methods. He has further pointed out that 'if too much formalin were to be used, some difficulty may be experienced in dissolving the sample in sculpture acid during the Gerber fat estimation on account of the hardening action of this preservative on casein. According to him for the preservation of samples for analysis, no more than 2 drops of formalin per 100 millilitre of sample are required. There is thus no merit in the contention that as 2 drops of formalin were not mixed with every ounce of sample, the finding that the sample contained 5.7 % of solid non-fats was vitiated.
7. It was also faintly contended that the prescribed minimum of 8.5% of solid non-fat was for cow's milk and as there was no prescribed minimum for a mixture of cow's and buffalo's milk, the applicant could not be held guilty of adulteration. A look at Appendix B, where the prescribed standards of quantity are mentioned, would show that the pre-scraped standard for buffalo's milk is very much higher than that for cow's milk - it being 9 % for soild non fat. Consequently, a mixture of cow's and buffalo's milk would require a higher percentage of solid non-fat than pure cow's milk. As the mixture in question was much below the prescribed minimum for cow's milk, there could be no question o-f its being not adulterated. The conviction of the accused-applicant is thus correct and is hereby upheld.
8. The sentence requires no interference under the Circumstances of the case.
9. The revision fails and is dismissed.