Jagjit Singh, J.
(1) This appeal is on behalf of the Municipal Corporation of Delhi and is against an order of Shri H. C. Goel, Additional Session Judge, whereby he acquitted Messrs Nestles Products India) Limited, Delhi, of a charge under section 7 read with section 16 of the Prevention of Food Adulteration Act, 1954.
(2) On December 6, 1969, at about 11.20 a.m., Food Inspector Sohan Lal Mehra went to a provision store, known as Biria Provision Store, at 27/13, Shakti Nagar, Delhi. From the salesman, Shri Basant Kumar, the Food Inspector purchased for purposes of analysis three sealed tins of Milkmaid brand of condensed milk sweetened bearing batch No. MOJCJ. On the same day one of these tins was delivered to Prem Parkash Bhatnagar, Public Analyst for Municipal Corporation of Delhi area. The Public Analyst reported that the sample was adulteries due to 1.30 per cent deficiency in total milk solids. The result of the analysis as given in the report (Exhibit PE) was as follows :-
'MILKfat : 9.0 per cent. Total milk solids: 29.70 per ceni. Cane sugar: 43.65 per ceni. Taste: Good.'
On the basis of the Public Analyst's report the Municipal Corporation of Delhi, through its Assistant Municipal Prosecutor, instituted prosecution against (i) Basant Kumar, (ii) Birla Provision Store, (iii) Ishwar Dutt Sharma, (iv) The Hind National Store (Agencies) and (v) Messers Nestles Products (India) Limited, Delhi (hereinafter referred to for facility of reference as 'the Company').
(3) The company was prosecuted as the manufacturer of the condensed milk of which samples were taken. Messrs Hind National Store (Agencies) being the authorised agents and distributors and the Manager of that firm, I. D. Sharma, were imp leaded as accused on account of sample tins being out of the lot that was purchased from them by Biria Provision Store. Basant Kumar was prosecuted as the vendor and the Biria Provision Store as the firm on whose behalf the sale of the adulterated article of food was made.
(4) The accused other than the company were discharged by the trial court on July 17, 1970 as it was considered that no prima jacie case had been made out against them in view of the fact that they had purchased the goods under a written warranty. The company was, however, convicted on April 16, 1971 for manufacturing for sale adulterated condensed milk sweetened and was ordered to pay fine of Rs. 15,000. On appeal the order of the Trial Court in respect of the company was as well set aside.
(5) It was not disputed before us that the tins of condenced milk sweetened purchased by Food Inspector Sohan Lal Mehra, on December 6, 1969, from Biria Provision Store had been got manufactured for sale by the company and were part of the lot sold to Biria Provision Store, through its distribution agents. Messrs Hind National Store (Agencies).
(6) The evidence of Ghanshayam Dass, a partner of Messers Birls Provision Store, was that on November 20, 1969, twelve tins of condensed milk were purchased by his firm, along with some other articles, from Messers Hind National Store (Agencies), through a cash memo (Exhibit Public Witness 3/A) and a written warrenty. Shri Banarasi Dass, a partner of Messers Hind National Store (Agencies) deposed about his firm being the sole agents of the company for the Old Delhi area and that a dozen tins of condensed milk were sold to Birla provision Store through the aforesaid cash memo. He further stated that his firm had purchased the tins of condensed milk from the company.
(7) Shri 0. P. Malhotra, a representative of the company, when examined under provisions of section 342 of the Code of Criminal Procedure, 1898 admitted that the company had got manufactured turn sale Milkmaid brand condensed milk sweetened from Messers Food Speciality, Moga. It was also admitted that the company had supplied tins of condensed milk sweetened of Milkmaid brand bearing batch No. Mojcj to its agents, Messers Hind National Store (Agencies), for sale and distribution in the Old Delhi area.
(8) On behalf of the prosecution evidence was led to establish that the tins of condensed milk sweetened purchased by Food Inspector Sohan Lal Mehra from Biria Provision Store were of Milkmaid brand bearing batch No. Mojcj and were in original packing and in a sealed condition. It was so stated by Food Inspector Sohan Lal Mehra and another Food Inspector, named Anand Gaur. The latter had accompanied Food Inspector Sohan Lal Mehra. To the same effect was the evidence of Adarsh Mohan, a private businessman, who was present at the time of purchase by Sohan Lal Mehra of these tins of condensed milk sweetened.
(9) The defense of the company was that the goods sold were not adulterated. In support of that contention the Public Analyst who had got the sample of condensed milk analysed under his supervision and Dr. B. D. Narang were examined as defense witnesses.
(10) The statement of the Public Analyst, Shri Prem Parkash, made us a defense witness was that in analysing condensed milk, the methods laid down by the Central Food Laboratory, Calcutta, were followed and the results of analysis which were obtained in respect of the sample of condensed milk sweetened were 'perfectly correct and there is no possibility of error.' He did not dispute the abstract proposition that every measurement relating to analysis of food and food products entails some error but according to him such error may at the most cause variation of results up to O.1 per cent. He also stated that he had followed volumetric and not polorymetric method. He could not say whether polorymetric method was more accurate than volumetric method but asserted that it was not correct to say that volumetric method did not lead to correct results. He did concede that if the Sugar contents arc not determined correctly then the determination of total milk solids would not be correct. When required to produce the rough notes regarding the calculations that were made, he mentioned that these were destroyed after recording the final result in the register.
(11) The other defense witness. Dr. Narang, was a Public Analyst in the service of the Haryana Government at the time of making the statement. Without any orders from the trial court the company had directly sent to him some samples of condensed milk sweetened for analysis. By his letter dated June 6, 1970 (Exhibit Dw 2/A), Dr. Narang informed the company as under about the result of the analysis performed by him:-
'FAT:9.5%. Total Milk Solids : 33.70% . Sucrose : 40.24%..'
He also expressed the opinion that the samples sent to him conformed to the prescribed standard as laid down under the Prevention of Food Adulteration Act for condensed milk sweetened.
(12) In his deposition Dr. Narang mentioned that in connection with food analysis work an analytical chemist must keep record of the analysis in a bound note book and that the entries must be made directly on this note book. He further stated that before starting analysis, the date of experiment must be entered in the note book and no change in the entries should be made without signing the alterations. He did concede that there could be no objection to rough calculations being made on loose sheets of paper.
(13) With regard to the report (Exhibit PE) of Prem Parkash the criticism of Dr. Narang was that the sample was considered to be adulterated only due to deficiency of less than four per cent of total milk solids even though deviation from the minimum prescribed standard up to five per cent could be regarded as marginal 'due to the involved experimental error which is allowable in all analytical techniques.'
(14) In accepting the appeal of the company and acquitting it of the charge of manufacturing for sale adulterated condensed milk sweetened the learned Additional Sessions Judge relied upon the statement of Dr. Narang that deficiency up to five per cent in total milk solids In condensed milk sweetened could be disregarded as being marginal, or in other words inspire of the deficiency in total milk solids noticed by the Public Analyst the sample could be held not to be adulterated.
(15) We are unable to agree with the view taken by the learned Additional Sessions Judge. The standard of quality laid down for condensed milk sweetened by item A. 11.02.11 of Appendix B to the prevention of Food Adulteration Rules, 1955 is as follows:-
'CONDENSEDmilk sweetened means the product obtained from cow or a buffalo milk or a combination thereof or from standardised milk, by the partial removal of water and after addition of cane sugar. It may contain added refined lactose, calcium chloride, citric acid and sodium citrate, sodium salts of orthophosporic acid and polyphosphoric acid (as linear phosphate with a degree of polymerisation up to 6 units) not exceeding 0.3 per cent by weight of the finished product. Such addition need not be declared on the label. Condensed milk sweetened shall contain not less than 9.0 per cent milk fat, not less than 31.0 per cent total milk solids and not less than 40.0 per cent cane sugar.'
(16) Against the prescribed standard the sample of condensed milk sweetened was found by the Public Analyst to contain 9 per cent of milk fat, 29.70 per cent of milk solids and 43.68 per cent of cane sugar. It was on that basis that the sample was reported to be adulterated due to 1.30 per cent deficiency in total milk solids per cent.
(17) There is no understandable basis, scientific or otherwise for the view propounded by Dr. Narang that due to the involved experimental error, a deviation from the minimum prescribed standard up to five per cent in milk solids may be ignored as being marginal. It seems to us that the said witness made altogether an irresponsible statement, merely with a view to help the company. In a Full Bench judgment of the Kerala High Court, in State of Kerala v. Vasudevan Nair 1975 F.A.J. 36, the following observations were made:-
'THEstandards of qualities of the articles have been fixed by the Government under the provisions of the Act after due deliberation and after consulting a committee of competent men. It is for them to give due allowance for probable errors before fixing a standard. They may have done it also. There is no reason to assume otherwise. thereforee the conclusion is that for an article of food when a standard has been fixed under the Act it has to be observed in every detail.'
We are in respectful agreement with the view taken by the Kerala High Court that while fixing the standard due allowance must have been given for propable errors in analysing articles of food. It, thereforee, follows that when as a result of analysis by the Public Analyst for the Municipal Corporation of Delhi area the sample of condensed milk sweetened was found deficient to the extent, of 1.30 per cent in total milk solids it was rightly reported to be adulterated and it would not be corect to hold the sample not to be adulterated by saying that possibly some mistake was made in analysis.
(18) It was also contended before us that no reliance should be placed on the result of analysis as entered in the report of the Public Analyst for he did not preserve the rough notes showing how the calculations were made. The learned counsel for the company could not point out any directions or rule according to which after making entries in the note book meant for the purpose the papers on which rough calculations may have been made should as well be preserved. Even according to Dr. Narang rough calculations can be made on loose papers. Obviously where loose sheets are used for making rough calculations it would not be necessary to preserve them after the result of analysis has been entered in the note-book or the register. In the present case the result of analysis was duly entered in the register meant for the purpose. The contention raised is, thereforee, without any force.
(19) Another submission made was that the percentage of total milk solids may not have been correctly determined due to inaccurate determination of the percentage of sugar contents of the sample. There is, howler, no basis for starting with the presumption that sugar contents were not correctly determined.
(20) From the data given, in the report of the Public Analyst, which has not in any way been shown to be inaccurate, the only possible conclusion is that the sample of condensed milk sweetened was adulterated due to deficiency of 1.30 per cent in the total malk solids. Theacquittal of the company was, thereforee, not justified. The learned Additional Sessions Judge appears to have proceeded on untenable surmises.
(21) We accordingly accept the appeal filed against the order of the acquittal and set aside the order of Shri H. C. Goel, Additional Sessions Judge, dated January 25, 1973. The company [Messers Nestles Products (India) Limited, Daryaganj, Delhi) is convicted under section 16(1)(a) read with section 7 of ithe Prevention of Food Adulteration Act and is sentenced to a fine of Rs. 5,000.00 . We allow the company 15 days' time for payment of the amount of fine. If the fine is not paid during that period, proceedings for recovering the amount shall be commenced in accordance with law.