1. Accused 1 in C. C. 10 of 1964 on the file of the Additional First Class Magistrate of Ernakulam is the revision petitioner. He was convicted by the learned Magistrate under Sections 7(i), 2(i). and 16(1) (a. (if. of the Prevention of Food Adulteration Act (shortly stated the Act. read with Rule 44 (b. of the Rules framed under the Act and sentenced to rigorous imprisonment for one year and to pay a fine of Rs. 2000/-; in default of payment of fine he is to undergo rigorous imprisonment for three months,
2. The case against him is that on 17-10-1963 at about 7 a.m. he had sent some cow's milk for sale through his employee the second accused. In front of the house bearing door No. 5/299 Mattancherry, the second accused was caught with the milk by the Food Inspector, Mattancherry. He purchased from him some sample for analysis and bottled the same in three clean dry bottles, one of which was handed over to the accused as required by the rules. A mahazar was then drawn up by the Food Inspector which is Ext. P-5 in the case, Just when the preparation of the mahazar was over, the first accused made his appearance there and stated to the Food Inspector that the milk in question belongs to him and it was he who had entrusted it to the second accused for sale. His statement was recorded by the Food Inspector at the bottom of Ext. P-5 and that was signed by him (first accused). On analysis, the sample was found to contain 23 per cent of added water. When questioned under section 342 the first accused denied having given any such statement. He also denied having entrusted any milk to the 2nd accused for sale. The 2nd accused, however, stated that he is the first accused's servant and the milk was taken for sale on behalf of the first accused.
The learned Magistrate has convicted the first accused basing mainly on the endorsement on Ext. P-5 and the confessional statement of the second accused. Being a repeater the learned Magistrate was compelled to award him a deterrent sentence. The second accused, on the other hand, has been sentenced to pay a fine of Rs. 150/-in default of payment of fine he has to undergo simple imprisonment for two months. On appeal to the Sessions Judge of Ernakulam by the first accused in Criminal Appeal 19/65 the conviction and sentence were confirmed.
3. The conviction entered on the first accused was subjected to a critical analysis and it was attacked from different angles. In the first place, it was contended that the complicity of the first accused has not been proved by clear and acceptable evidence. Neither the endorsement on Ext. P-5 nor the confessional statement of the second accused, according to the learned counsel, is sufficient in itself to fasten guilt on the first accused. One or two other cases were also charged against the self-same accused and in those cases also similar endorsements and confessional statements were put forward to connect the first accused with the crime; but the conviction entered in those cases was set aside in appeal by the Sessions Judge of Ernakulam saying that it is unsafe to base the conviction of the first accused on such shaky and slender items of evidence; but the present case, according to the learned Judge has to be viewed from a different angle altogether. I am unable to appreciate the reasoning of the learned Judge. I would better quote his own words: 'In this case there is the admission of A-2 or rather the confession of A-2 that the said milk was sent by A-l through him for sale. So the version of Pws. 2 and 3 that at the time of Ext. P-5 mahazar, he admitted that fact. True it is that A-1 denies the endorsement in Ext. P-5. But Pws. 2 and 3 swore in support of that admission of A-l. The percentage of adulteration is very high so that even if a margin is left, still it can be safely concluded that the said sample was adulterated by added water. Under the circumstances, I do not find any way to allow this appeal.'
It would appear from the above observation that he has based the conviction of the first accused not only on the confession of the 2nd accused, but also on the fact that the percentage of added water is high. The percentage of added water has to be considered under a different head and is not to be confused with circumstances that go to fasten the guilt upon the first accused. The two items of evidence, as already stated, that are relied on by the prosecution to fasten guilt on the first accused are:--- (1. the endorsement on Ext. P-5; and (2. the statement of the second accused that the milk was entrusted to him by the first accused. On the first item, I must observe that it was improper on the part of the court to have accepted it as an item of evidence to connect the first accused with the crime. The endorsement in question is seen tagged on to the mahazar Ext. P-5 at the fag-end just below the seal of the municipal office. The whole entry is in the hand-writing of the Food Inspector. The signature alone, according to the prosecution, was affixed by the first accused. The signature, of course, has been denied by him and the impugned signature looks different from his signatures on the 342 statement and on the vakalath. That apart, the endorsement is unattested.
The prosecution case, if believed, the witnesses who had attested the Mahazar Ext. P-5 were available there at the time the endorsement was prepared, and the Food Inspector if he wanted could have got the endorsement also attested by them. Pw. 3 is stated to be one of the attestors to the mahazar. He swears that it was after the mahazar was completed and himself and the other witnesses had signed, that the endorsement was prepared. The mahazar was read over to them but not the endorsement. On this point the statement of Pw. 3 is significant. He says: [Statement in local language omitted -- Ed.. from this it would appear that the endorsement was prepared aside, not within the sight of the attestors. The endorsement itself, as we have already seen, was written up by the Food Inspector himself. The first accused is a literate man; but, according to the Food Inspector he had told him that his hand-writing was bad. So the Food Inspector was allowed to writ out the statement himself. The whole thing is a make-believe, totally incapable of inspiring confidence. The first accused has some experience in the line, having had previous conviction for similar offences It is impossible to believe that such a man even if prompted by a high sense of duty would run into danger like this, with his eyes open. The case of the Food Inspector is that when all the preliminaries were over he emerged at the scene all of a sudden, and made the confession to the Food Inspector that the milk belongs to him and it was he who had entrusted it to the second accused for sale: in other words, the whole responsibility was taken upon himself and this he did presumably with the knowledge that the punishment for a repeater under the present Act would be highly deterrent: Even granting that the statement was signed by him it has to be excluded on the ground that it is hit by the inhibition of Section 24 of the Evidence Act. That it is not a voluntary statement and it was made by inducement, threat or promise, has to be presumed in the circumstances.
It might be argued that he was not strictly speaking an accused at the time and therefore the bar of Section 24 of the Evidence Act cannot apply. This is not correct. True that no charge was filed against him at the time he signed the statement; but the possibility of his becoming an accused eventually is sufficient to exclude the statement as hit by the section. It is not, however, necessary that at the time the inducement is offered, the charge against the accused should have been actually made.
'By Section 24, in a criminal proceeding against a person, a confession made by him is inadmissible if it appears to the court to have been caused by inducement, threat or promise having reference to the charge and proceeding from a person in authority. By Section 25, there is an absolute ban against proof at the trial of a person accused of an offence, of a confession made to a police officer. The ban which is partial under Section 24 and complete under S. 25 applies equally whether or not the person against whom evidence is sought to be led in a criminal trial, was at the time of making the confession in custody. For the ban to be effective the person need not have been accused of an offence when he made the confession. The expression 'accused person' in Section 24 and the expression 'a person accused of an offence' have the same connotation and describe the person against whom evidence is sought to be led in a criminal proceeding.' (Vide Woodroffe and Ameer All's Law of Evidence in India llth Edn. Vol. 1, p 516). To convict the accused, therefore, on such a statement would be doing scant justice to the above provision of law.
[1. The other item of evidence put forward to connect the first accused with the crime is the statement of the second accused in his 342 that he is the first accused's employee and that the milk was entrusted to him by the first accused for sale. This is also an equally weak and flimsy link in the chain of evidence to connect the first accused. The confession of a co-accused is no douht admissible in evidence; but the rule has been formally established and it is a rule of prudence ripened into a rule of law that the confession of a co-accused uncorroborated by any other evidence is not alone sufficient to sustain a conviction. Here the only other corroborative evidence is the endorsement in Ext. P-5, the nature and worth of which we have already seen. It has, therefore, to be taken that this statement of the second accused stands uncorroborated. There is also the further position that the court cannot straightway start with the confession of a co-accused; if there is substantial evidence against the accused and there remains some doubt lingering, the confession of the accused may be taken into account 'to set that doubt at rest'.
On this point the Supreme Court in Haricharan Kurni v. State of Bihar, AIR 1964 S.C. 1184 has observed:
'As a result of the provisions contained in section 30, Evidence Act, the confession of a co-accused has to be regarded as amounting to evidence in a general way because whatever, is considered by the court is evidence; circumstances which are considered by the court as well as probabilities do amount to evidence in that generic sense. Thus, though confession may be regarded as evidence in that generic sense because of the provisions of section 30 the fact remains that it is not evidence as defined by section 3 of the Act. The result, therefore, is that in dealing with a case against an accused person, the court cannot start, with the confession of a co-accused person; it must begin with other evidence adduced by the prosecution and after it has formed its opinion with regard to the quality and effect of the said evidence, then it is permissible to turn to the confession in order to receive assurance to the conclusion of guilt which the judicial mind is about to reach on the said other evidence.'
Thus the confession of a co-accused can be invoked only to give additional strength or added assurance to the other items of evidence led into the case already. But in the present case there is no other item of evidence to connect the first accused with the crime. That being the case, the statement of the second accused made in the course of this Section 342 examination cannot be pressed into service in assessing the guilt of the first accused. The observation of the learned Sessions Judge that this case is different from the other cases in which the first accused was acquitted by him has no foundation whatsoever and the position in the present case is more or less the same as in the other cases. The first accused, therefore, has to be acquitted.
5. The method of analysis resorted to in the case was severely criticised by the learned counsel. The specific gravity test adopted in the present case, according to the learned counsel, is inaccurate and faulty and the safer test is the freezing point test described at page 336 of Daving Pear-son's book entitled 'The Chemical Analy- sis of Foods' 5th Edn., 1962. The certificate in the present case shows that 23 p.o. of added water was discovered in the sample and the charge itself is specifically under Rule 44 (b. which relates to milk which contains added water. The prosecution, therefore, has a duty to establish by reliable data that the sample contained 'added water'. Milk may go down in quality and thus below the prescribed standard due to various reasons; But to record a finding that water was added the most reliable and safest test should be resorted to. The standard prescribed can be guaged from the quality of milk described in the rules which is: 'Milk means the normal clean and fresh secretion obtained by complete milking of the udder of a healthy cow, buffalo, goat or sheep during the' period following at least 72 hours after calving or until colostrum free whether such secretion has been proceeded or not.'
The percentage of fat contents may vary due to various reasons, without the milk being adulterated with water.
'Extreme underfeeding over extended periods, such as keeping cows on pasture without proper supplement may cause decreased yields of milk and lowering of fat percentage. In such cases, fat percentage may be restored to normal within a few weeks by proper feeding but milk-yields are likely to remain below normal throughout the remainder of the lactation. In some instances, spring pasture stimulates milk production with a slight drop in fat percentage of the milk 101-107. Therefore, unless the early spring pasture grass is supplemented by grain, the total amount of fat decreases. The fat percentage is also dependent on the condition of the cow and the quality of the pasture.'
Vide the Nutrition and Lactation in Dairy Cattle by K.C. Sen and C. P. Anan-thakrishnan page 7).
In such circumstances sometimes an 'appeal-to-cow' sample is resorted to, to ensure the accuracy in the analysis for finding out the added water ratio. It is in this connection that the freezing point test assumes importance. The Madras High Court in Public Prosecutor v. Kalloor Rayavaram Cooperative Milk Supply Society Ltd. AIR 1964 Mad. 301 has observed: that the freezing point test is the most acceptable test now in vogue. The learned Judge observed:
'From the text books above mentioned it can be taken that the freezing point test is accepted by courts as the fair and safe method of determining the added water in milk and that the freezing point of milk varies from 0.510 to 0.560 with a mean of 0.530. It has also to be noted that it is difficult to distinguish a sample of milk with added water and a sample of pure quality milk by determining the specific gravity or the percentage of solids alone. The test also should be conducted, when the milk is fresh and before it gets sour. The additionof preservative formalin also affects the freezing point,... .. .. .. According to the authorities, the freezing point of genuine milk seldom goes below 0.53. Even in very rare cases it does not fall below 0.51. The freezing point may be taken as 0.53 and Borne allowance may be made for addition of formalin etc. Still if the freezing point is found to be lower it can be sefely presumed that the milk is adulterated with added water unless the defence rebuts the presumption.'
These are points worth considering; but without the Analyst's statement in further clarification of his report I am not prepared to hazard an opinion one way or the other. The Analyst has resorted to specific gravity test in the present case. Unless his evidence tested by cross-examination is available before court it would be improper to condemn the method adopted and the conclusions reached by him, I would, therefore, leave it at that.
6. About the bottling and sealing of the sample also some arguments were addressed basing on a single Bench decision of the Mysore High Court in Mary Lazrado v. State of Mysore, AIR 1966 Mys 244. The learned counsel argued that so long as a specimen impression of the seal used for sealing the bottle was not sent separately by registered post or delivered to the public analyst in person so as to enable him to compare the seals on the bottle with the specimen impression received by him, it could not be said with certainty that the contents of the bottle were not tampered with and that it was the self-same sample sent by the Food Inspector that was subjected to analysis. Learned counsel further pointed out that the presumption that official acts are regularly performed does not extend Itself to the proper sealing of the bottles It might extend to the sending of the bottles for analysis and not to the other details like the bottling, sealing etc.
In AIR 1966 Mys. 244 (cited supra. the learned Judge observes:
'The mere fact that the report of the Public Analyst contained a statement that the sample sent for analysis had been properly sealed and fastened, and that he found the seal intact and unbroken is not sufficient. The presumption in regard to the regularity of procedure followed by the public analyst may be raised when there is proof that the food Inspector had discharged his functions according to the rules. To raise a presumption both in favour of the Food Inspector and the Public Analyst is to render the rules superfluous and meaningless'.
It is advisable, especially to give the procedure the guarantee that impartial and honest handling of the sample despatched and received for analysis by the Public Analyst, to forward to the Public Analyst, a specimen impression of the seal, so that he may compare it with the seal used for sealing the bottles and thus Ret himself satisfied beyond doubt that there was no tampering either on the spot where it was sampled or in the course of transit. But in the present case since the complicity of the first accused has not been satisfactorily proved and he is being acquitted on that ground, none of these questions arise for consideration. I do not, therefore, propose to deal with them in further detail.
7. No other point arises. The conviction and sentence are hence set aside andthe appellant is acquitted. Fine, if realised,would be refunded. The Revision Petitionis allowed.