Jagjit Singh, J.
(1) Shri C. D. Sharma, Magistrate 1st Class, acquitted Ail Dass and Bharat Sweets Bhandar in a case under Section 16 read with Section 7 of the Prevention of Food Adulteration Act. For getting the order of acquittal dated October 27, 1967 set aside this appeal was filed on behalf of the Municipal Corporation of Delhi.
(2) The case relates to a sample of butter which was taken on March 14, 1967 by a Food Inspector from Bharat Sweets Bhandar, a sweets shop at No. 14, G. T. Road, Subzi Mandi, Delhi. On a part of the sample being analysed it was reported by the Public Analyst to be adulterated due to 4.3 per cent excess in moisture and 1.5 per cent deficiency in fat. On the basis of that report prosecution was instituted against Ail Dass as the vendor and Bharat Sweets Bhandar as the proprietor-company. The accused were, however, acquitted as the trial Magistrate was of the view that at Bharat Sweets Bhandar butter as such was not sold and the butter kept in the shop was to be used in preparation of samosas.
(3) Regarding the purchase of butter by Food Inspector Pritam Singh, there is his own evidence and the evidence of one Harbans Singh Talwar, who was called by the Food Inspector from an adjoining shop to be present at the time of the taking of the sample. Another person, Kul Bhushan, was also alleged to have witnessed the taking of the sample but during the trial of the case he did not completely support the prosecution and was declared hostile. He deposed that when he went to Bharat Sweets Bhandar for buying Dal Saiv the sample butter had already been purchased by the Food Inspector. On being confronted with his writing on the report regarding the taking of the sample he admitted to have written it. According to that writing 450 grams of milk butter was purchased in his presence and its price amounting to Rs. 2.70 was paid.
(4) It, however, seems to us that there can be no doubt that butter was purchased by Food Inspector Pritam Singh from Ail Dass. Even if the evidence of Kul Bhushan is disregarded still from the evidence of Pritam Singh and Harbans Singh Talwar it is evident that the purchase of butter was made after observing all the legal formalities. their evidence is reliable. On being examined at the close of the prosecution evidence Ail Dass did not deny that the sample of butter was taken by the Food Inspector from his shop and that notice was given to him that the sample would be got analysed from the Public Analyst. He also did not deny that the receipt regarding payment of Rs. 2.70 (Exhibit PA) and the report regarding the taking of the sample (Exhibit PC) were signed by him and that on the receipt he had himself written that Rs. 2.70 had been received by him. He, however, mentioned that both on Exhibits Pa and Pc he had also written that the butter was meant for being used in preparation of samosas.
(5) Thus there is no dispute about the taking of the sample by Food Inspector Pritam Singh. Ail Dass had, however, at the Very time of taking the sample taken the plea that the butter was meant for preparing samosas. Ail Dass also appeared as a defense witness and deposed that he had purchased 4 kilograms of cream on the very day the sample was taken and had prepared butter from that cream. He further stated that the butter so prepared was not for sale but was to be used in preparing samosas. He admitted that the samosas to be prepared would have been sold at his shop.
(6) In his statement Food Inspector Pritam Singh had mentioned that when he went to the shop of Ail Dass he found the latter to be selling butter. That part of the evidence of the Food Inspector was not believed by the trial Magistrate as the Food Inspector could not give particulars of the quantity of butter said to have been sold to a girl, the amount received by way of price from that customer and also because no note regarding that matter was given in any of the papers prepared by him at the time of taking the sample.
(7) Even if it may be considered that the evidence regarding Ail Dass selling butter as such to a girl is not very satisfactory, still one fact stands fully established. There was butter in the shop of Ail Dass and that butter was meant to be used in preparation of samosas. As was laid down by a Full Bench of this Court in Madan Lal v. State 1972 F.A.C. 481 it would not make any difference even if the vendor was not a dealer in the article of which sample was taken, if the article was to be used in preparation of any other article which would have been then sold to customers. In that connection, the following observations were made :-
'ITmust be held that if the respondents in the two appeals were dealers in toned milk as such, they would be guilty of an offence under the Act notwithstanding the fact that they did not agree to sell the toned milk to the Food Inspector or to accept its price from him. The position will be the same even if the respondents were not dealers in toned milk as such but were using the toned milk in the preparation of tea or coffee which they were selling to the customers.'
(8) If the butter of which sample was taken can be regarded to be adulterated then the vendor will have to be held guilty of selling an adulterated article of food to the Food Inspector, even though the butter was kept not for sale in that form but was to be used in preparing samosas to be sold to customers.
(9) What was contended before us by Shri D. C. Mathur, learned counsel for Ail Dass respondent was that the butter of which sample was taken was deshi (cooking) butter and according to the prescribed standard it was only required to contain not less than 76 per c6nt of milk fat by weight and that the standard prescribed for table (creamery) butter requiring not less than 80 per cent of milk fat by weight was not to be applied in determining whether or not the article sold was adulterated.
(10) It will be noticed that the sample of butter was taken on March 14, 1967. In those days the standards prescribed for table (creamery) butter and deshi (cooking) butter by item A. 11.05 of Appendix B to the Prevention of Food Adulteration Rules were as follows:-
'(A)Table (creamery) butter means the product prepared exclusively from milk, cream or curd of cow or buffalo or a combination thereof with or without the addition of salt and coloured with annatto and shall contain not less than 80 per cent of milk fat and not more than 16 per cent of moisture. No preservative is permissible in table butter. Diacety1 may be added for flavour but shall not exceed 4 parts per million.
(B)Deshi (cooking) butter means the product prepared exclusively from milk, cream or curd of cow or buffalo or a. combination thereof, without the addition of any salt or any colour or any preservative and intended exclusively for use in cooking or for preparation of ghee. It shall contain not more than 20 per cent of moisture and not less than 76 per cent of milk fat. Where butter is sold or offered for sale without any indication as to whether it is table butter or deshi butter, the standards of quality prescribed for table butter shall apply.'
THATitem of the Appendix was substituted by items A. 11.02.19 and A. 11.02.20 by G.S.R. 1533 dated July 8, 1968, which are in the following terms:-
'A.11.02.19.-Table (Creamery) Butter means the product obtained from Cow or buffalo milk or a combination thereof or from cream or curd obtained from cow or buffalo milk or a combination thereof with or without the addition of common salt and annatto or carotene as coloring matter. It shall be free from other animal fats, wax and mineral oils, vegetable oils and fats. No preservative except common salt and no coloring matter except annatto or carotene shall be added. It shall contain not less than 80.0 per cent by weight of milk fats, not more than 1.5 per cent by weight of curd and not more than 3.0 per cent by weight of common salt. Diacetyl may be added as a flavouring agent but, if so used, the total diacetyl content shall not exceed 4.0 parts per million. Calcium hydroxide, sodium bicarbonate, sodium carbonate, sodium polyposphates, (as linear phosphate with a degree of polymerisation up to 6 units) may be added for regulation the hydrogen, ion concentration in the finished products not exceeding O.2 per cent by weight of butter as a whole.
A.11.02.20.-Deshi (Cooking) Butter means the product obtained from cow or buffalo milk or a combination thereof or obtained from cow or buffalo milk or a combination thereof without the addition of any preservative including common salt any added coloring matter or any added flavouring agent. It shall be free from other animal fats and mineral oils, vegetable oils and fats. It shall contain not less than 76.0 per cent of milk fat by weight.'
(11) The container from which the sample of butter was taken, as stated by the Food Inspector, did not have any indication on it that it contained deshi (cooking) butter. The indication contemplated by the rules, in our opinion, should be such which is not capable of being changed from customer to customer. The fact that the vendor at the time of the taking of the sample had orally said or given in writing that the butter was to be used for cooking purposes will not satisfy the requirements of 'indication' in terms of item 'A. 11.05(b), as it stood before being substituted by new items in July, 1968. As on the day the sample was taken the old item A. 11.05 applied so in the absence of indication on the container the standard of quality prescribed lor table butter had to apply. Judged from the standard for table butter the sample was rightly reported to be adulterated due to 4.3 per cent excess in moisture and 1.5 per cent deficiency in milk fat.
(12) Another submission made was that as the substituted item A. 11.02.20 of Appendix B to the Prevention of Food Adulteration Rules no longer provides that where butter is sold or offered for sale without any indication as to whether it is table butter or deshi butter the standards of quality prescribed for table butter shall apply, so the substituted item should be deemed to have been given retrospective effect. It was further urged that if the sample was judged from the standard laid down for deshi (cooking) butter, as given in the substituted item A. 11.02.20 of Appendix B, it could not be held to be adulterated. Reliance was as we'll placed on a judgment of the Supreme Court in Ram Lubhaya v. Municipal Corporation of Delhi and another 1974 F.A.C. 102 in which it was observed that the variation change in standard introduced for Haldi powder by item A.05.20.01 in the Appendix to the rules though came into force after the date of the offence yet it was a circumstance not without relevance on the question of sentence. This authority does not, thereforee, support the contention that the substituted items of Appendix B should be given retrospective effect. Rather that authority goes against the contention about item A. 11.02.20 of Appendix B having retrospective effect. Of course the change made is a relevant factor for purposes of sentence.
(13) The sample taken was. it seems to us, rightly reported to be adulterated. In determining whether or not it was adulterated the standards of quality laid down by item A. 11.05 of Appendix B to the Prevention of Food Adulteration Rules, as it existed before the substitutions made by G.S.R. 1533 dated July 8, 1968 had to be applied. In the absence of indication the standards prescribed for table butter were applicable and there being deficiency in milk fat and excess in moisture, as mentioned in the Public Analyst's report. Ail Dass respondent was guilty of selling adulterated article of food. As, however, the offence is a very old one and due to the change introduced in July, 1968, we are inclined to take a lenient view of the matter.
(14) We may, however, mention that no evidence was produced on behalf of the prosecution to establish that Bharat Sweets Bhandar was a partnership firm and the sale made by Ail Dass was on behalf of the firm. The stand taken by Ail Dass was that he was. the sole proprietor. The liability for sale of adulterated butter was, thereforee, only of Ail Dass.
(15) For the reasons given above the appeal is accepted as against Ail Dass only and the order of acquittal dated October 27, 1967 is to that extent set aside and Ail Dass respondent is sentenced to a fine of Rs. 100 only. In default of payment of fine, he shall undergo one month's simple imprisonment. We also allow him 15 days' time to pay the fine imposed on him.