M.S. Joshi, J.
(1) This appeal arises from the judgment of Shri C. D. Sharma, Judicial Magistrate 1st Class, Delhi dated 29-10-69 whereby Shri Ram respondent was acquitted of the charge under Section 7/16 of prevention of Food Adulteration Act, 1954 framed against him on account of the complaint filed by the Municipal Corporation of Delhi.
(2) Sri Ram had a shop where milk and curd were sold in Gali Bahuji, Pahari Dhiraj, Delhi. Shri V. N. Sharma, a Food Inspector visited that shop at 7.00 A.M. on 19th April, 1969 and purchased from Sri Ram 660 MI. of Cow's milk for purposes of analysis against payment of 90 P., the price of the said quantity of milk. The sample of milk so purchased was divided into three equal parts and put in three clean and dry bottles which were properly sealed after addition of the requisite 18 drops of formalin per bottle. One of the three sealed bottles was given to Siri Ram and another was delivered to the Public Analyst for test. The milk sold by the shopkeeper was claimed by him to be cow's milk and it was required, accordingly to the standards laid down by the Prevention of Food Adulteration Rules, 1955, to contain not Jess than 3.5 per cent milk fat and not less than 8.5 per cent milk solid not fat. The Public Analyst, however, found that although the fat content of the milk was 5 per cent, the other solid was only 7.14 per cent. The deficiency in the non-fat solid spelt out 16 per cent adulteration. In that context a complaint was lodged by the Municipal Corporation of Delhi against the vendor of the milk, Siri Ram.
(3) The learned Magistrate who tried and disposed of the complaint was of the view that since the total solids found in the sample were more than the prescribed minimum of 12 per cent, the fat content being much in excess of the prescribed minimum i.e. 3.5 per cent, it was quite probable that the Public Analyst was not able to isolate the fat contents so successfully as to have left no scope for slight variation as found in the sample and proceeding of this presumption gave the accused benefit of doubt and acquitted him.
(4) The learned counsel appearing for the Municipal Corporation of Delhi has urged before this Court that the reasoning adopted by the learned magistrate was inherently faulty and his reliance on Supreme Court's decision in Malwa Co-operative Milk Union Ltd.. Indore and others v. Biharilal and another, since reported as 1973 Food Adulteration Cases 375, was misconceived. It is to be borne in mind that according to Siri Ram's own showing the milk which he sold was cow's milk and this type of milk, if sold in Delhi, must contain as per item A. 11.01.11 in appendix B of the Prevention of Food Adulteration Rules, 1955, 3.5 percent minimum percent milk fat and 8.5 minimum per cent milk solid not fat. This standard of quality laid down by the Central Government in excerise of its powers under clause (b) sub-section (1) of Section 23 of the Prevention of Food Adulteration Act, 1954 in consultation with the Central Committee for Food Standards constituted under Section 3 of the said Act prescribes the minimum percentage of milk fat and milk solid not fat independently of each other and compensation of deficiency in one constituent by excess of the other is not contemplated. Otherwise it would have sufficed to specify the total minimum solid content of a variety of milk, and mention of the two types of solid would not have been necessary. In determining whether a disputed sample of milk is or is not up to the mark, the courts have to look to the statutory standards set down by the Rules and not to improvise any rough and ready standards of their own. If this approach is not adopted not only the opinion of the Public Analyst will lose its value, the provision in section 13(2) for analysis by the Central Food Laboratory will also become more or less redundant. The learned trial magistrate purported to act in the light of Malwa Co-operative Milk Union case but he failed to note that the circumstances prevailing in that case were entirely different from those of the one in hand. There the complaints in question had arisen from two samples of buffalo milk examined by the Public Analyst of Indore. One of them contained 6 per cent milk fat and 7.9 per cent solids non-fat, and the other 5.9 per cent milk fat and 7.7 per cent solids non-fat whereas the requirement of the Rules was 5 per cent milk fat and 9 per cent milk solids other than milk fat. In the one case the deficiency in total solids was. I per cent and in the second 4 per cent. The Supreme Court observed that this was border-line variation and it was not clear whether the Public Analyst was able to isolate the fat content so successfully as not to have left room for this slight variation. The fact of the variation of the contents of the sample from the prescribed standards was, thus, though taken into account but what actually weighed with the Court was the propriety of the exercise of its powers by the High Court in revision to set-aside a acquittals in such like cases. In the words of their Lordships :-'the prosecution was launched against a co-operative society registered as a joint stock company which was carrying on the function of procuring and supplying milk in Indore City on a very large scale- It was not interested in making a profit but in organising the milk supply to a big city. No doubt, it was assisted by highly qualified personnel and probably by first rate machinery. The argument of Mr. D. P. Singh that in these circumstances one would expect near perfection in the milk, may be accepted. But that does not prove that near perfection must be accepted in the work of the analyst when the differrent from standard is only .1 per cent in one case and .4 per cent in the other. It is possible that a slight error in calculation or in isolation of fat might have been made. But without speculating upon this aspect of the case, it is quite clear to us that this was hardly the kind of case in which the High Court should have exercised its powers to set aside in revision an acquittal, and determination of these and several other Pacts in issue, but on the withdrawal of the case by the Public Prosecutor at the instance of the Corporation and possibly of Government. The State Government apparently thought that was not a case in which the Union should be subjected to a prosecution at the start of its ventures for an almost nominal variation in the contents of milk. The learned Single Judge failed to notice that the revision applications were rejected by the Sessions Judge for very adequate grounds and that the revision applications themselves had proceeded from a stranger who, as a rival, was interested in setting that some obstruction to the work of the Union would result.' It is clear that the Supreme Court took the acquittal in his case to be such as should have been allowed to stand and the view taken was that the High Court was not justified in exercising its extraordinary powers of revision to set it aside. Here not only the facts are of a different complexion, we arc dealing with an appeal u/s 417 of the Code of Criminal Procedure, 1898, and our sphere of powers is not circumscribed in the manner a court's is when it is hearing a revision petitionagainst acquittal U/s 439 of the same Code.
(5) Unfortunately it was not present to the mind of the learned Trial Magistrate that in Malwa Co-operative Milk Union case the samples were of buffalo milk. This buffalo milk was expected to contain not less than 5 per cent of milk fat and the fat content of the two samples in fact was 6 per cent and 5.9 per cent respectively. Had the milk been adulterated it would have been found deficient not only in non-fat solids but in milk fat too. The milk which Siri Ram sold to the Food Inspector he said was cow's milk. In reality it might have been buffalo milk adulterated with water so that it could come up to the standard for fat (3.5 per cent) and be deficient in non-fat solid as it actually was. The milk sold must satisfy the requirement of the Rules for milk fat and milk solid not fat separately. If it docs not do that it must be taken to be adulterated, because it is an article sold by the vendor which is not of the nature, substance or it demanded by the purchaser and is to his prejudice or is not of the nature, substance or quality which it purports or is represented to be or because its quality or purity fall below the prescribed standard. (Prem Das v. State, : AIR1961All590 ). An expect like a Public Analyst may commit a mistake in his analysis but the Courts make allowance only for a marginal error. If the deviation is within the reasonable experimental error the benefit of doubt may be reaped by the accused but where the deviation in the results from the prescribed standards is large and appreciable, the Court cannot go out of its way to ignore the conclusions arrived at by the expert, and enter the realm of conjectures to fish out an alibit for the accused. The milk sold by Siri Ram should have had 8.5 minimum per cent milk solid not fat whereas it had 7.14 per cent of it. The deficiency was 1.36 per cent which could mean that the milk sold contained about 16 per cent more of water than it should have had in its natural composition. This cannot be termed a border-line variation. The deficiency here is really substantial. In Babulal Hargovind Das v. TheState of Gujarat 1972 F.A.C. 18 the Supreme Court upheld the conviction of the accused though the milk sold by him was deficient in non-fat solids only to the extent of I.I per cent. If the prescribed standard is not attained the statute treats the food article in question. by fiction, as adulterated food though in fact it is not adulterated (M. V. Joshi v. M. U. Shimpi and another, : 3SCR986 ) . In the case reported in Mela Singh Sohan Mal v. The State A.I.R. 1964 Pun 332 , the milk was short in milk solids not fa't by .3 per cent still it was taken to be adulterated. In Bridges V. Griffin 1952 2K. B. 233 the milk had been sold in the same state in which it come from the cow, it had not been directly tampered with and despite that the accused was convicted of adulteration because it was deficient in fat. The offence of adulteration was held proved in A. S. Arunachala Nadar and another v. State 1958 Mlj 408 0 because the butter contained moisture in excess of the statuory maximum and the defense put up by the accused that it was impossible to keep the moisture content at or below the statutory level, was rejected In this context reference may also be made to Municipal Committee, Mandi v. Ran; Lal and another (1962 (1) Cri. L. J. 150
(6) The learned Trial Magistrate committed a grave error in affording the benefit of doubt to Sri Ram in acquitting him. The milk sold by him was positively adulterated and the variation in percentage of milk solid not fat was large and appreciable leaving no option for the Court to treat the milk as adulterated. This appeal is consequently accepted and the accused convicted under Section 7 read with Section 16 of the Prevention of Food Adulteration Act, 1954. He is sentenced, in view of the entire facts and circumstances of the case, to pay a fine of Rs. 2000.00 or to suffer rigorous imprisonment for a period of six months.