Hardayal Hardy, C.J.
(1) The only question raised in this appeal by special leave is that the sample of cow's milk was taken by the Food Inspector on 9-7-1963 at about 7A.M. but the complaint was filed against the respondent Zahiruddin, on 14-2-1964, i.e. after a delay of 7 months and 5 days. The sample was analysed by the Public Analyst on 18-7-1963 with the following results :-
'The sample was in fit condition for analysis. Date of analysis . . . .11-7-1963 Fat . . . . . .4.3% Non-fatty solids . . . .6.3%
and of the opinion that the same is adulterated due to 2.2 per cent deficiency in non-fatty solids which is equi- valent to 25.8 percentage deficiency in non-fatty solids (% added water).'
(2) On 23-6-1964 the sample was received by the Director Central Food Laboratory, Calcutta with a memorandum dated 20th June 1964 addressed by Shri R.K. Jain, Magistrate 1st Class, Delhi for a certificate under Section 13(2) of the Prevention of Food Adulteration Act, 1954 which will hereafter be referred to as the Act. The sample was analysed by the Director on 1-7-1964 showing the following results:-
'Milk fat . . . . . . 2.5% Milk solids other than milk fat . . 6.8% Starch & cane sugar . . . . Absent
OPINION: The sample of cow milk is adulterated. The condition of the seals on the container and the outer covering on receipt was as follows :-
THEseals were intact.'
Section 13(5) of the Act makes the certificate signed by the Director, Central Food Laboratory, final and conclusive evidence of the facts stated therein. The contention urged by the counsel for the respondent is that between 9-7-1963 and 1-7-1964 there was a delay of 11 months and 22 days and that is why the milk fat which was 4.3% at the time of analysis of the sample by the public Analyst was reduced to 2.5% while there was an increase of 5% non-fatty solids for the Public Analyst had reported that contents of non-fatty solids were 6.3% as against 6.8% found by the Director, Central Food Laboratory. In such circumstances, relying upon a majority decision of Allahabad High Court in Nagar Swastha Adhikari Nagar Mahapalika, Agra v. Mangaha (1970 Allahabad Criminal Reports 465 F.B.), it was argued by the counsel for the respondent that 'finality and conclusiveness attaches to what is mentioned in the certificate itself. When the Director does not certify whether or not the sample could have a partly deteriorated by the time it reached him for analysis and whether or not it was capable of being analysed for arriving at any reliable and accurate conclusion regarding fatty and non-fatty solid contents contained in the sample on the date the sample was taken, it cannot be presumed that the Director had applied his mind to that aspect of the case also. The fact that he has performed the analysis no doubt indicates that the analysis was possible on that date. However, to our mind the fact that the sample was analysed by the Director cannot further establish that no deterioration in the composition of the milk had taken place. In the absence of any certificate to that effect granted by the Director, the question whether or not there could be partial deterioration in the composition of the milk by the time the sample reached the Director will have to be decided by the Court either on the basis of the evidence furnished by the Director himself or on the basis of what the Court considers to be just and proper.'
(3) Counsel for the respondent further argued that in the case Municipal Corporation of Delhi v. Ghisa Ram 1965 Pun 543 the opinion of Dr. Sat Parkash who was Dairy Chemist in the Delhi Milk Scheme and was a notified Public Analyst of the Delhi Administration it was stated that if to such a sample a preserving agent was added, it may maintain its total percentage of fat and non-fatty solid 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. Similarly if-a properly sealed sample of curd is kept at room temperature for a week and then in a refrigerator for three weeks, and it is, thereafter sent to Calcutta for analysis, it will still be fit for analysis by the end of the fifth week, but it will start decomposing thereafter.
(4) The sample was taken in that case on 20th September 1961. The complaint was filed before the magistrate on 23rd May 1962, i.e. more than eight months after the sample had been taken. The accused applied on 4th October 1963 i.e. more than two years after the date when the 'ample was taken, that the sample had been given to him by the Food Inspector to be sent to the Director for analysis and the grant of a certificate. When the sample was received by the Director, he reported that the sample of curd sent to him had become highly de-composed and no analysis of it was possible.
(5) The case went up to the Supreme Court and is reported as : 1967CriLJ939 . The question arose whether the accused could be given the benefit of the delay made by the complainant in launching the prosecution on the ground that the valuable right conferred on him by sub-section (2) of section 13 of the Act had been lost. In the absence of a certificate by the Director the case against the accused had to be tried on the basis of the report given by the Public Analyst. The appeal filed by the Municipal Corporation of Delhi from the order of Ghisa Ram's acquittal was dismissed.
(6) It will thus be seen that in the case of Ghisa Ram(2) there was more than two years delay before the sample of curd could be examined by the Director. The Director had at the request of Ghisa Ram actually examined the sample of curd and found it to be highly de-composed and un-fit for examination, and thereforee the only report before the Court was that of a Public Analyst.
(7) The case of Ghisa Ram is thereforee no authority for the proposition enunciated by the learned counsel for the respondent.
(8) In the present case 16 drops of formalin were added as preserevative to the sample, although there was no evidence as to how the sample' had been kept by the respondent.
(9) Learned Magistrate however felt that according to the prescribed standard, the fat contents have to be 3.5% and non-fatty solids at 8.5% whereas according to the Director the milk fat was found at 2.5 per cent and milk solids other than milk fat at 6.8 per cent. The Public Analyst on the other hand found the fat contents at 4.3% and non-fatty solids at 6.3 per cent. It was thereforee not understood why this difference had arisen between the report of the Public Analyst and the Director Central Food Laboratory. The whole thing thereforee appeared to the learned Magistrate to be doubtful and it could not be said whether the sample in question was really adulterated. Learned Magistrate also went on to hold that either it was that the Director Central Food Laboratory did not receive the actual specimen of the sample or that the technical authorities did not perform their job well. It was in this view of the matter that the respondent was acquitted.
(10) It is ridiculous that the learned Magistrate should have compared the report of the Public Analyst with the certificate issued by the Director. Under Section 13(5) of the Act the certificate issued by the Director has to be final and conclusive evidence of the facts stated therein, although no such presumption attaches to the report of the Public Analyst. The certificate granted by the Director cannot thereforee be disregarded. The certificate also shows that milk fat and milk solids other than milk fat found by the Director were less than the prescribed standard. The Director also did not say that the milk was in a deteriorated or de-composed condition. Had that been the case the Director would not have granted the certificate. The question whether the milk was in a fit condition of analysis when analysed by the Director is a question of fact and it depends upon so many circumstances that in the absence of any evidence about the condition of sample the Courts cannot lay down any artificial rule that after a certain period has lapsed it must be presumed that the sample was not fit for analysis even when the Director analysed it and gave a certificate.
(11) We find support for our view in the minority decision of Allahabad, High Court in Nagar Swastha Adhikari Nagar Mahcipalika's/(1) case. when Malik J. took the same view. The learned Judge observed :-
'WHEREthere is no evidence about the condition of the sample, can the court presume that by lapse of time-and if so by lapse of what period of time-the sample must have so deteriorated that it was futile to send it to the Director for analysis or even where it was sent and the Director has given the result of his analysis, the Director's findings as to the fat contents and non-fatty solids should not be accepted and conviction based thereon?'
Learned Judge also referred to a book on 'Milk : Production and Control' by Harvey and Hill from where certain passages were uoted in the judgment of Mudholkar J. in Dattappa Mahadapa v. Secretary, Municipal Committee (AIR 1951 Nagpur 191) (3) and observed :-
'THEREis nothing in the quotations given in the judgment of Mudholkar J. to indicate that the remarks apply to milk to which formalin had been added. Formalin is added to kill the bacteria in milk. If the suggestions contained in the quotations from Harvey and Hill given in the judgment have to be applied to all milk samples, it is impossible in a country like India to have satisfactory analysis of any milk sample. The passages quoted from Harvey and Hill give so many factors which affect the condition of milk that it is not possible to lay down a fixed rule as to a definite period after which the sample must be held in every case to be unfit for analysis. In any case, in the absence of evidence that the remarks contained in that book relate to milk to which formalin had been added to destory the bacteria, the remarks cannot be made applicable to the case before us.'
We prefer the decision of Malik J. to the majority decision of Allahabad High Court and are of the view that if the respondent wished to rely on matters with respect to which the certificate of the Director is not conclusive evidence, it was his duty to have led evidence as to the manner in which the sample had been kept during the period it was sent to the Director. No such evidence was led by the respondent.
(12) The manner in which the trial magistrate approached the case being erroneous the judgment of acquittal is reversed and the respondent is convicted of an offence under Section 7 read with Section 16 of the Act. The offence is such that at the relevant time no minimum sentence of imprisonment was prescribed there for and it could be punished with a maximum fine of Rs. 2000.00. Since the offence was committed eight years ago, while we maintain the conviction of the respondent we direct that he be punished with a fine of Rs. 500.00 for we are told that be is an old man. The fine should be paid within a month from today's date and in case there is a default in payment of fine, the respondent should undergo simple imprisonment for a period of three months.