H. Hardy C.J.
(1) This criminal appeal arises out of an order of acquittal passed by a magistrate 1st Class in a case under Section 7/16 of the Prevention of Food Adulteration Act, .1954 hereafter to be referred to as the Act.
(2) On 12th April, 1968, at 8 20 A.M., respondent Asa Ram was conveying for sale cow's milk at Moli Bazar, Delhi. Shanti Nath Food Inspector purchased a sample which on examination was found to be adulterated due to 1.22 deficiency in non-fatty solids which is equivalent to 14.3 per cent deficiency in non-fatty solids.
(3) Two questions were raised before the trial Court, one of them related to non-compliance with the mandatory provisions of Section 10(7) of the Act while the other was in respect of the analysis carried out by the Public Analyst. As resards the question of non-compliance with the provisions of Section 10(7) of the Act, the learned Magistrate repelled the contention urged on behalf of the respondent and although in the appeal an attempt was made on behalf of the respondent to question the correctness of that finding, the counsels has not succeeded in establishing the point and we are thereforee in agreement with the trial Court in the view taken by her. It is the second contention which found favor with the learned magistrate and the correctness of that finding has been challenged in the appeal filed by the Municipal Corporation of Delhi against that judgment.
(4) Reliance is placed on behalf of the appellant on a decision of the Supreme Court in M. V. Joshi v. M. U. Shimpi where it was said that if the prescribed standard is not attained the statue treats such butter by fiction as an adulterated food though in fact, it is not adulterated.
(5) It was submitted that the sample admittedly deviated from the prescribed standard with regard to non-fatty solids and thereforee came Withinthe purview of Section 2(i) of being an adulterated article of food. The trial Court on the other hand took the view that since the fat contents were exceptionally high the possibility that there had been sen e error in isolation of fat on the part of the Public Analyst could not be ruled out for in the instant case even the total solids taken together exceeded the prescribed minimum and that gave rise to the argtment that the Public Analyst was not able to isolate the fat contents so successfully as not to have left room for the slight variation in the non-fatty solids.
(6) In tie light of that view the trial Court proceeded to hold that tire prosecution had failed to prove its case against the respondent beyond all reasonable doubts and thereforee acquitted the respondent
(7) At the hearing of the appeal, counsel for the appellant urged that the supply of milk is an essential article of food and as a result of the deliberations of the Central Committee for Food Standards, certain standard had been laid down and if a particular article of food does not come up to those prescribed standards, it is to be treated as an adultrated article and any one responsible for its storage and sale is liable to be punished under the Act. The sample of food in the present case admittedly did not come up to the prescribed standard and thereforee the respondent had to be punished.
(8) Counsel for the respondent did not dispute that if the sample of milk did not come up to the standard the respondent had to be punished but he submitted that before the article was declared as adultrated there must be evidence to show that it was so. To prove that the article was adultrated the prosecution relied on the report of the Public Aralyst which under sub-section (5) of Section 13 is to be used as evidence of the facts stated therein in any proceedings under the Act. The report (Ex.P.F.) reads:--
'FAT6.0% Non-fatty solids 7.2% The sample is adultrated due to 1.22 deficiency in non-fatty solids which is equivalent to 14.3 percentage deficiency in not-fatty solids (% added water) '
The prescribed standard for cow's milk is 3.5 per cent milk fat and milk sclids other than milk fat shall not be less than 8.5 per cent. The total of milk fat and non-fatty solids in this case being 13.28. There was an apparent deficiency in non-fatty solids.
(9) Counsel for the respondent thereforee submitted that a request had been made to the Court for calling the Public Analyst as a witness but the request was turned down. It was urged that under Section 257 of the Criminal Procedure Code the respondent was entitled to summon the Public Analyst as a defense witness and that his request could be rejected only on the grounds mentioned in that section, but while rejecting his application no such grounds were mentioned. It is no doubt true that the learred magistrate accepted the defense version but if the prosecution v as challenging the decision of the trial court in an appeal against acquittal, the respondent was entitled to have the Public Analyst summoned in order to ascertain as to how the analyst had found milk fat to be 6 percent as against 3.5 to 4 per cent prescribed in the rules. This could only be done if the analyst was axa- mined otherwise there was room for doubt and the respondent could contend that the Analyst had not been able to isolate the fact content successfully. And it is possible that a slight error in calculation or in isolation of fat might have been made. It is all the more apparent that even the total solids namely, fat contents and non fatly solids taken together exceeded the prescribed minimum and the report does not show the presence of any extraneous matter in the sample. There is every possibility that the Public Analyst was not able to isolate the fat contents so successfully as not to have left room for the slight variation in the non- futy solids.
(10) It would have been a different matter if the respondent had merely relied on the failure of the prosecution to examine the Public Analyst as a witness. That would probably have been the case as was envisaged by the Supreme Court in Mangaldas Raghavji Ruperal v. Slate of Maharahtra, where it was said that no blame coul.l be laid on the prosecution for its failure to examine the Public Analyst as a witness, if the respondent wanted the Public Analyst as a witness it was his duly to have taken appropriate steps. In the present case, the respondent did make an application under Section 257 Criminal Procedure Code.
(11) In Ram Dayal v. Municipal Corporation of Delhi, the question of calling the Public Analyst under Section 27 of the Code of Criminal Procedure was specifically dealt with and it was observed :-
'But nothing contained in these sub-sections relating to certificate of the Director of the Central Food Laboratory in any way limits the right of the accused under Section 257 of the Code of Criminal Procedure to require the Public Analyst to be produced. The court may, as we said earlier reject the prayer for good and sufficient reasons such as for instance where it is made for the purpose of vexation or delay or for defeating the ends of justice.'
(12) The respondent thereforee had the right to summon the Public Analyst as a witness.
(13) Counsel for The respondent also invited our attention to certain passages from a treatise on ' The Chemical Analysis of Food and Food Products' by Morris B. Jacobs (3rd Edition) with regard to the manner in which samples of milk should be taken in order to make sample truly representative of the food that is being stored. In the instant case the sample of cow's milk was taken on 12th April, 1968 and since we are not satisfied about the trial court having rejected the respondent's request for summoning the Public Analyst who, we understand, has already retired, we do not feel inclined to remand the case for that purpose, nor do we think any useful purpose will beserved by our giving a finding as to how the sample of cow's, milk or any other milk and curd etc. should be tested. In a more appropriate case we will refer to that aspect of the matter. Meanwhile the appeal against acquittal is dismissed and the order of acquittal is manitained.