S. Rangarajan, J.
(1) A sample of cow's milk was taken by the Food Inspector 15th April, 1964 according to the rules. After compliance .with the formalities prescribed by law requisite drops of formalin were also added to the sample and it was sent to the Public Analyst for examination, which was conducted on 16th April, 1964. The sample is said to have been kept in a refrigerator till the examination. In spite of the same, according to the Analyst's report, the solid fat contained in the milk was said to be only 2 .28% as against 3.5%. The complaint, however, was filed, for no accounted reason, as late as 23rd September, 1964. The accused was served on 12th October, 1964. The second sample of the milk left with the accused was sent for examination by the Director, Central Food Laboratory on 17th February, 1965 and was actually examined by him on 16th March, 1965. According to his certificate the solid fat contents were 3 .2 % as against the minimum requirement of 3 .5%. After the receipt of the report from the Director, Central Food Laboratory, Calcutta the accused took the risk of examining Shri V.P. Bhatnagar, Public Analyst, appointed by the Delhi Administration, as a defense witness. It is explained at the bar that the Director of the Central Food Laboratory was nto examined owing to the cost, which is said to be prohibitive, for securing his presence for examination in Court. A mere perusal of the statement of DW. 1 shows that he was fencing and was in no mood to admit even scientific facts which may be regarded as fairly well established. In one portion of his examination he went so far as to state as follows:-
'IT is incorrect that the fat will decrease and nonfatty solids would increase. I have gone through the report of the Public Analyst Ex. Pe and the report of the Director, Central Food Laboratory, Calcutta (marked X) and find that the total solids of the two results are approximately the.same, which shows that the sample has nto changed much.... Regarding non-fatty solids, when total solids is the same and the fat is higher in Director's report automatically non-fatty solids would be less, but the differences in the two reports is mainly due to the lapse of time.'
(2) It is worth repeating that whereas according to the Public Analyst the solid fat contents were 2 .28 % they were seen to be 3.2% nearly 1% higher, a difference of nearly 50% over the results obtained by the Public Analyst. Whatever may be the attitude taken by DW. I his evidence establishes that such variation in the result, obtained by the Public Analyst and by the Director of the Central Food Laboratory, was due to the lapse of time. We have referred to this portion of evidence prominently at the outset since to the same effect was the evidence of Dt. Sat Parkash the Dairy Chemist in the Delhi Milk Scheme and a notified Public Analyst of the Delhi Administration, who was examined by the High Court of Punjab in Municipal Corporation of Delhi v. Ghisa Ram, (i) the decision in which case is reported in (1965)2nd Punj 543. The effect of the evidence of Dr. Sat Parkash was set out on pages 548-49 of the report, of which paragraphs (d) and (f) are relevant for our purposes. They are worth setting out in extenso:-
'THATby the end of that time, that is to say by the end of a week, bacterial development will start taking place which will break the fat contents thus causing reduction in the same and as the time passes such reduction will increase and that if such a sample is then kept, at that temperature, for more than a week, say 10 days, it will then start decomposing and consequently become unfit for analysis.' * * * *
'THATif to such a sample a preserving agent is added, it may maintain its total percentage of fat and non-fatty solids contents for the purposes of analysis for say four months and if then the sample of this type is placed in a refrigerator, it will keep such qualities for some more months, say another two months, which gives a total of about six months, during which period the sample will be available for the purposes of analysis without deterioration or decomposition affecting the same.'
(3) It may also be noticed that one Dr. A. Kannan, Public Analyst of the Delhi Municipal Corporation, was also examined by the Punjab High Court in that case and the effect of his evidence is set out at page 550 of the report as follows:-
'THATincrease in lactic acid by the lapse of time does nto affect non-fatty solids so as to decrease them, does nto affect fat at all, and with the increase of lactic acid by efflux of time there will be corresponding decrease in the lactose so that the total percentage of solids in curd will continue to be the same.'
(4) The High Court preferred the evidence of Dr. Sat Parkash as a disinterested expert witness to that of Dr. Kannan.
(5) For the purpose of this appeal, it is even needless to go into this question because the difference between the result found by the Director of the Central Food Laboratory, Calcutta and the minimum required was so slender, namely, 0 -3% that it may be regarded as negligible. We are even relieved of the necessity of going into the question whether the said deficiency of 0-3% noticed by the Director, Central Food Laboratory, Calcutta was only due to the passage of time. The ultimate opinion of the Director no-doubt was that the sample of milk was adulterated in view of the said deficiency of 0-3%. But in such cases where the difference is slight and marginal, even in addition to the factor of passage of time (which is claimed by the accused-respondent as a sole factor in this case accounting for the deficiency noticed by the Director) there is room for doubt, the benefit of which has to go to the accused. It is worth referring to an article by Shri S.N. Mitra of the Central Food Laboratory, Calcutta contributed to the Seventh Indian Standards Convention, at Calcutta, held in the year 1963. The margin of permissible error has been described as 'tolerance'. In spite of the standardization in the methods of analysis of food articles it was observed as follows by Shri Mitra-
'INgeneral, in all experiments involving analysis some tolerances are allowed. It would be rather difficult to lay down any hard and fast rule for such tolerance. Further, it is clear that the question of tolerances would arise mainly in the case of border-line values. On the other hand, when the deviation in the results from the prescribed standards is large and appreciable, the question of allowable error will hardly arise.'
(6) Concerning tolerances vis-a-vis calculation of percentage of adulteration Shri Mitra stated:
'INcalculating the percentage of adulteration in a sample of food usually no tolerances are taken into account for personal or experimental errors. Percentage of adulteration is calculated on the results as obtained in the laboratory without giving any allowance. At times,, calculation of percentage adulteration becomes very important from the point of view of the enforcement of purity and quality standards of foods. . . . If, however, this deviation is more or less within the reasonable experimental error the question of giving the benefit of doubt would certainly arise.'
(7) In this case the milk solids other than milk fat were mentioned as 11.l% i.e. significantly above 8.5% referred to in the said article as being the statutory minimum.
(8) Errors in taking samples also cannto be ruled out. Morris B. Jacobs in the Third Edition of his 'The Chemical Analysis of Foods and Food Products' says on page 6:-
'Amost important matter to be considered by the food analyst, although nto directly his province, is the proper sampling of the food or food product to be analyzed. There are probably as many incorrect determinations made because a sample was improperly taken as because of the combined errors of preparation of sample, manipulation, calculation of result, etc. The failure to obtain a proper sample makes a subsequent analysis worthless.'
(9) In order to get over the difficulties which stem from the report of the Director, Central Food Laboratory, Calcutta, the learned counsel for the Delhi Municipal Corporation relied heavily upon the finality of the certificate under section 13 of the Act and claimed that since the certificate had characterised the sample as adulterated the accused be convicted on that basis alone.
(10) The question of the conclusive nature of the said certificate or report has been the subject matter of some decisions. Our attention has been drawn to the decision of Falshaw C.J. & S.K. Kapur, J. of the Punjab High Court in Municipal Corporation of Delhi v. Niranjan Kumar (2) S. K. Kapur, J. speaking for the Division Bench observed as follows at page 943:-
'WEwould like to clarify that finality and conclusiveness has been attached only to the facts stated in the report of the Central Food Laboratory. It is not, however, conclusive as to any other matter and it may still have to be ascertained whether adulteration as disclosed in the report of the Central Food Laboratory was due to certain factors for which an accused could nto be held responsible. In short the finality and conclusiveness is only to the extent that the sample as sent to the Central Food Laboratory contained what the report disclosed.'
(11) To a similar effect is the view regarding the conclusive nature of the said report taken in Mohanlal Chhaganlal Mithaiwala v. Vipanchandra R. Gandhi and another Shelat, J. speaking for the Division Bench held that 'what is final and conclusive in the certificate is the finding on an analysis or test of the constituents in the sample sent, their proportions, etc. The analyst has merely to give his opinion as to whether the article which he analysed has an excess or deficiency in constituents. The vendor would still be entitled to lead evidence or otherwise show that the article of food in question is nto adulterated food.' The factors which the accused was held entitled to rely upon in such cases include the delay in analysis of the sample and its impact on the result obtained.
(12) As already observed, it is needless for us to rely merely upon the delay in the present appeal as the sole factor which could probably account for the deficiency of 0.3% when it was tested by the Director of the Central Food Laboratory, nearly a year after the sample was taken.
(13) The opinion of Dr. S.N. Mitra, as expressed in the said article shows that a doubt arises where the difference is marginal. It is appropriate, thereforee, to give the benefit of that doubt in such marginal cases to the accused.
(14) Our attention has also been drawn to the unreported decision of the Supreme Court, decided on 14th August, 1967 in The Malwa Co-operative Milk Union Limited v. Bihari Lal and another. Referring to a deficiency of 0-1%, in one case, and 0.4% in the other, of the solids in the milk, his Lordship, Mr. Justice Hidyatullah (as he then was) observed as follows:-
'IT is nto clear whether the analyst was able to isolate the fat content so successfully as nto to have left room for this slight variation. The variation was thus borderline . . .However, the question is a general one; it is about the exercise of the powers of the High Court in Revision to set aside acquittals in cases such as these.'
(15) In that case two samples were taken of buffalo's milk. An application to withdraw the cases was allowed in each case by the trying Magistrate. Subsequently, applications were made to the Sessions Judge for reporting the cases to the High Court. Those applications were dismissed. Then a further revision was filed in the High Court which ordered a re-trial setting aside the acquittal. In allowing the appeals against the order of the High Court, the Supreme Court further observed as follows:-
'THEvariation in the solid contents of the milk prima fade were nto so great as to merit attention even in the first instance and we think that the High Court might well have left the acquittal endorsed by the Sessions Judge to stand.'
(16) It is worth remembering in this case that the prosecution itself was launched on account of the Public Analyst's opinion that the solid fat contents were only 2 .28% as against the minimum of 3.5%. But the sample, which was examined by the Director, Central Food Laboratory, even after so much delay, contained, 3.2% the deficiency being only marginal, namely, 0 .30%. It seems to us that it is nto proper to interfere with the order of acquittal passed by the learned Magistrate in this case.
(17) In these circumstances, the appeal is dismissed.