A.N. Grover, J.
1. This order shall dispose of all the Criminal Appeals (Criminal Appeals Nos 105-D to 119-D of 1962) against an order made by the learned Magistrate acquitting the respondents on charges under Section 7, read with Section 16, of the Prevention of Food Adulteration Act, 1954 (hereinafter to be referred to as the Act) All that the learned Magistrate has stated in his order is that the sample of milk was sent to the Public Analyst and it has been reported to be adulterated with added water but it has not been stated in the report what the actual percentage of the water in the sample is. Purporting to follow a decision by P. D. Sharma J in Nandu Ram v. The State 1962-64 Pun LR 57 : (1962 (2) Cri LJ 579) it was held that there was no point in proceeding with the case and the complaint must be dismissed and the accused acquitted. Mr. Tarachand Brijmohanlal. who appears for the Municipal Corporation, the appellant, contends that the view of this Court, which the learned Magistrate followed, is no longer good law in view of the Bench decision in Municipal Corporation v. Nathu Ram, Criminal Appeal No. 87-D of 1968, decided by Dulat and Capoor JJ. on 14th October 1963 (Punj). The Bench followed a Full Bench decision of the Allahabad High Court in Prem Das v. State AIR 1961 All 590 (FB) in which it was held that a sample of milk would be deemed to be adulterated if the milk fats are less than the prescribed minimum or if the non-fatty solids are less than the prescribed minimum and as no maximum for water had been prescribed the question whether milk was adulterated within the meaning of Section 2(i)(l) of the Act or not, did not depend on the quantity of water. Therefore the question whether a sample of milk contained any added water or not is wholly irrelevant for the purposes of the aforesaid provision, although it would be relevant in a case where rule 44 of the Rules is applicable which prohibits sale of milk which contains any added water which would be an offence punishable under Section 16(1)(a) of the Act.
2. It is not disputed in the present cases that according to the law laid down by the Division Bench, the learned Magistrate was in error in dismissing the complaint without making any further enquiry and examining evidence. It has, however, been pointed out that these cases were decided on 1st February 1962 and even if the matter is now sent back to the Magistrate for trial the respondents would be deprived of the opportunity which they would have had under Section 13(2) of the Act of making an application to the Court for sending a part of the sample to the Director of Central Food Laboratory for a certificate which when issued shall supersede the report given by the Public Analyst In Municipal Corporation of Delhi v. Ghisa Ram, Criminal Appeal No 30 D of 1964 (Punj) decided by Mehar Singh and Capoor JJ. on 9th November 1964, this matter was considered at length and it was held that the Magistrate could not possibly have convicted the accused because of the denial of statutory right to the latter to have the part of the Sample with the Food Inspector checked by the Director of the Central Food Laboratory, Calcutta, this situation having been created by circumstances beyond the control of the respondent.
Mr. Tarachand Brijmohanlal submits that it was due to the error committed by the learned Magistrate by declining to take any proceedings on the complaint that such a situation has arisen and that in every case where the Magistrate acts contrary to law and refuses to proceed against the accused for reasons similar to those given in the present cases, the accused can always claim the benefit of such a situation having been created by which he would be entitled to say that if the case is retried by the Magistrate, he will be deprived of the opportunity of obtaining the certificate relating to the sample from the Director of the Central Food Laboratory Section 13(2), however, contains a provision by which the complainant also can make an application for sending the part of the sample to the aforesaid authority and in future if the complainant has any such apprehension that any wrong or erroneous order of the Magistrate would lead to a situation which obtains in the present cases, then it is open to the complainant to make an application under Section 13(2) as soon as the complaint comes up for hearing.
At any rate, in view of the authoritative decisions which have now been given by this Court, there can be no manner of doubt that in future such difficulties will not arise and that the Magistrate will not be able to dispose of the complaints in the manner in which it has been done in the present cases.
3. In the result, although we are of the opinion that the dismissal of the complaint was contrary to law but in the circumstances which have already been mentioned we do not consider that in the present cases a retrial need be ordered The appeals shall stand disposed of accordingly.
S. K. Kapur, J.
4. I agree.