S.B. Capoor, J.
1. Balkishan Petitioner was convicted under Section 7 of the Prevention of Food Adulteration Act, 1954. Act No 37 of 1954 (hereinafter to be referred to as the Act and sentenced to pay a fine of Rs. 400/- or in default of payment of fine to undergo rigorous imprisonment for tour months The appeal to the Sessions Court. Ferozepore having failed, he has come to this Court in revision.
2. The facts alleged by the prosecution were as follows: The petitioner was a contactor for the supply of butte to the prisoner's in the Central Jail at Ferozepore. On the 20th June, 1962, S.S. Jogi (P.W. 1), Government Food Inspector Ferozepore, went to the Central Jail for inspection of the food-stuff and found that the petitioner had brought 2 kilo, of butter in cakes for sale and supply to the Central Jail authorities. The witness gave a notice (Exhibit P.A.) to the petitioner winch was duly signed by him and attested by Jagdish Singh (P.W. 2), who was then Assistant Superintendent of that Jail. The Food Inspector then purchased six chhatanks of the said butter after making payment of Rs. 2/- to the petitioner and obtained his receipt (Exhibit P.B.) in lieu of the payment made to him, which receipt was signed by him. The sample was divided into three equal parts and filled in three dry clean bottles and after being labelled, packed and sealed in the presence of the petitioner, and Jagdish Singh P.W. as well as Avtar Singh, one part was given to the petitioner and another sent to the Public Analyst and the third part was retained in the office of the Food Inspector. The recovery memo in this respect is Exhibit P.D. which was signed and thumb-marked by the petitioner and attested by the witnesses. The report of the analysis by the Public Analyst (Exhibit P.C.) was as follows:
Curd etc. 1.6%
The opinion of the Analyst was that the sample was 2.7% deficient of its tat contents and contains 5.1'') excessive moisture.
3. The case was supported apart from the Food Inspector by Jagdish Singh. The petitioner admitted that he had gone to the Central Jail, Ferozepur, to deliver the supply of butter, that he received a notice (Exhibit P.A.), that six chhatanks of butter was purchased from him on payment or Rs. 2/- by the Food Inspector and that he duly attested the recovery memo (Exhibit P.D.). Ha did not dispute the correctness of the report of the Public Analyst, Patiala. (sic) defence was that he supplied the butter in the same condition to the Jail authorities in which he had received it from Karam Chand, Proprietor of G.D. Dairy, Hira Mandi, Ferozepore City. The seller gave him a warranty which he showed to the Inspector but the Inspector asked that it should be shown in the Court. The warranty is on a cash menu), form of the G.D. Dairy, Hira Mandi, the date being 20th June, 1962. In defence he produced Karam Chand, who admitted that he sold 99 butter cakes to the petitioner on payment of Rs 16.12 nP. on the 20th June, 1962, for which Exhibit D.A. was the receipt. lie said that lie prepared the butter from the cream which he extracted from mixed milk of buffalo, cow and goat which he got from importers He was, however, unable to say whether the butter, of which the sample was taken, was actually the butter supplied by him to the petitioner.
4. Mr. K.L. Sachdev, learned Counsel for the petitioner, has taken up a point which was not urged on his behalf either in the trial Court or in the lower appellate Court. He referred to the definition of butter as contained in item A. 11.05 of Appendix D to the Rules framed under the Act, which is as follows:
Butter means the product prepared exclusively from the milk or cream of cow or buffalo or both with or without the addition of salt and annatto and shall contain not less than 16 per cent or milkfat and not more than 10 pet cent if moisture No preservative is permissible in butter.
5. He maintained that tin standard specified was for the product prepared exclusively from the milk or cream or cow or buffalo or both and not if any of the milk from which the product was prepared, was that or goat. He said that as according to Karam Chand D.W. the milk which he got from the importers was the mixed milk of buffalo, cow and goat, the article seized in the case was not butter coming within the above definition and hence it was not necessary that it should have at least 80 per cent of milk fat and not more than 1G per cent of moisture.
6. The argument is hypothetical as well as fallacious. The petitioner never alleged that the article which was to be supplied by him to the inmates of the Central Jail was wholly or partly the product of goat's milk He admitted that the stuff which he was to deliver to the Jail authorities was flutter and it was butter which he sold as sample to the Government Food Inspector. The article had, therefore, to conform to the require merits as specified in item A 11.05 and as it did not do so, it was clearly adulterated under Sub-clause (1) of Clause (i) of Section 2 of the Act and as such punishable under Section 7 of the Act.
7. Mr K.L. Sachdev referred in this connection to Public Prosecutor v Sangammal : AIR1961Mad198 . In that case the plea of the respondent was that she sold only goat's butter. In the case before me, however, no such plea was taken by the petitioner. The learned Judge went on to observe with reference to item A. 11.05 of Appendix D. that even if there was some admixure of goat butter and other butter, such stuff would not fall within the definition unless the results of the analyst conclusively prove that the sample did not contain an admixture of goat butter Mr. K.L. Sachdev interprets these, observations to mean that whenever any article, which is sold as butter, is found not to conform to the standard prescribed for butter in item A 11.05, it is then incumbent on the prosecution to prove that there was no admixture in the article of the product derived from goat's milk I do not think the learned Judge went to that extent and in any event I am unable to subscribe to any such view.
8. The next argument put forward by Mr. Sachdev was that some how extra moisture had got into the butter in the process of manufacture and so the petitioner could not be convicted, and in this connection he referred to Delhi Bather v Corporation of Madras AIR 1940 Mad 221. The defence of the petitioner in that case was that he was the proprietor of a grocery shop in the Moore Market and butter was offered for sale in sealed tins in the state in which it was purchased by the petitioner from Lord's Butter Company and the evidence of the Assistant Manager of the Lord's Dairy Farm showed that the extra moisture must have got unavoidably admixed in the process of the manufacture of the butler. The learned Judge referred to proviso (ii) to Section 5 of the Madras Prevention of Adulteration Act (Act No. 3 of 1918) and he held that, in these circumstances, no offence had been committed. There is nothing, corresponding to this proviso in Act No. 37 of 1954
9. Lastly, Mr. Sachdev sought shelter under the provisions of Section 19(2) of the Act, which alone was the plea stressed in the Courts below and has been repelled with good reasons by those Courts There is no evidence to show that under the first proviso to that section, the petitioner and at the time of sale to the Food Inspector submitted to him or the local authority a copy of the warranty upon which he sought to rely at the trial.
10. Thus, none of the arguments put forward on behalf of the petitioner are of any validity and maintaining his conviction and sentence, I dismiss his revision petition.