P. Govinda Menon, J.
1. These two revision petitions are filed by the same accused who has been convicted by the Additional First Class Magistrate of Ernakulam of an offence punishable under Section 16(1)(a)(ii) read with Section 7(i) of the Prevention, of Food Adulteration Act - Act 37 of 1954.
2. Pw. 1 the Sanitary Inspector of Mattancherry Municipality purchased from the accused 24 oz., of buffalo milk on two dates 12.9.58 and 9.3.59 when the milk was being taken by the accused to the Madras Cafe for sale. On analysis the milk was found to be adulterated. In both the cases the accused contended that he was only a paid servant of Kuppuswamy Chettiar, his brother and examined witnesses to prove his case. The learned Magistrate disbelieved the defence evidence and found that the accused was a milk vendor and as such was guilty of the offence charged against him. On appeal the learned Sessions Judge also accepted the prosecution evidence and confirmed the conviction and sentence.
3. The first point that is taken is that the purchase of milk by the Sanitary Inspector in the exercise of the statutory powers under Section 10 of the Act does not amount to a sale even though the price had been received by the accused.
Reliance was placed On the decision in Food Inspector, Calicut v. Parameswaran Chettiar 1961 Ker LT 308 : 1962 (1) Cri. LJ 152. In that case the plea of the accused that he was delivering the milk that he had gat by milking the buffalo belonging to the proprietor of the coffee hotel and that he was not taking it to the hotel for the purpose of sale was accepted by the Sessions Judge, but the charge that he was called upon to answer was that he had sold one bottle of buffalo milk to the Sanitary Inspector and therefore the question for consideration was whether that transaction of sampling by itself even though the accused was not in possession of the milk for the purpose Of sale would amount to a sale.
Raman Nayar, J., held on the facts of that case that it would be only a case of seizure and compulsory acquisition of the milk in exercise of the powers conferred on the Sanitary Inspector by Section 10 of the Act and that it would not amount to a sale. But it has Been made clear in that decision that if it is proved that the accused was taking the milk to the coffee hotel for the purpose of sale his very possession of the milk would be Sale within the definition of Section 2(xiii) of the Act and he would undoubtedly be guilty of the offence charged.
4. What was found by the courts below in this case was that the accused was taking the buffalo milk for sale to the hotel and that the Food Inspector purchased some milk from him which on analysis was found to be adulterated. So it refers to two acts done by the accused; one that he had in his possession adulterated milk for the purpose of sale and the other that he sold adulterated milk to the Sanitary Inspector. The definition of sale in the Act makes it cleat that the sale though not for consumption or use, but only for analysis does not cease to be a sale under the Act. The decision therefore does not help the accused.
5. The next contention of the learned Counsel was that the report of the Public Analyst is incomplete and vague and should not have been made the basis of the conviction. Clause 5 of Section 13 prescribes that any document purporting to be a report signed by a Public Analyst, unless it has been superseded by a certificate issued by the Director of the Central Food Laboratory may be used as evidence of the facts stated therein, What the learned Counsel for the accused says is that a certificate given by a Public Analyst may be used in evidence but he contends that the value to be attached to such a certificate would depend upon the facts and circumstances of each case. He points out that where the article sent for examination is capable of disintegration or of undergoing radical change in composition it must be shown that the composition of the sample sent had not undergone any change since its transmission.
6. In. support of this position the learned Counsel referred to the decision in Dattappa v. Buldana Municipality AIR 1951 Nag 191 where the certificate of the Public Analyst was not accepted. In. that case the milk was sent for analysis a week after the sample was taken and there was no proof that any steps had been taken either to pasteurise it or send it under refrigeration. In this case n0 doubt the report is signed in one case on the eleventh day of November 1958 and 'the other on twenty-sixth day of May 1959. The certificates only show the date of the receipt of the sample, but do not show on which date it was analysed. It cannot be stated that the analysis was done only on the date when the report is signed, as is contended by the accused. If the accused wanted he could have made an application to the court for examining the Public Analyst as a witness either in court Or on commission.
There is also the further fact that the evidence of the Sanitary Inspector showed that he had. in conformity with the rules framed, added the prescribed drops of formalin to each of the bottles and duly corked and sealed them. The certificates of the. Analyst also show that he received the samples fox analysis properly sealed and fastened and that the seals were intact and unbroken. The facts are, therefore, entirely different from the case referred to above where the milk was sent without these precautions and hence found to be not properly tested and analysed.
7. It was further contended that the certificate does not give the factual data and that no finding can be recorded On the basis of such a certificate.
Reliance was placed on the decision in State v. Sahati Ram AIR 1958 AH 64 where it was stated
It has been repeatedly pointed out by this Court, and in this connection, we may refer to two recent decisions of this Court, the one in Din Dayal v. State : AIR1956All520 in which one of us was a party, and the other in State v. Nathi Lal 1956 All LJ 340 that the certificate of the Chemical Analyst should contain the factual data which the analyst should reveal and not merely the opinion of the Public Analyst as to what that) data indicates about the nature of the article of food, and that if the certificate merely gives the final opinion of the Public Analyst and if such an opinion be held to be conclusive evidence about the nature of the article of food, the merit of tie case against the accused-is real y decided by the Public Analyst and not by the court and the court just gives its authority to the conclusion of the Public Analyst and this cannot be the position in law. The report of the Public Analyst in the present case does not, in our opinion, specify what Section 10 of the Act required him to specify and what could have been evidence for the consideration of the Court.
8. Here in this case the result of the analysis is given in the certificates, Ex. P5 in C.C. 135/60:
Solids-not-fat 6.2 per centFat 4.8 per cent
and the Public Analyst has given his opinion that the said sample contains not less than thirty one per cent (31.0%) of added water as calculated from the solids-not-fat content. Ex. P 5 in C.C. 160/60:
Solids-not-fat 8.7 per centFat 7.8 per centFreezing point (Hortvet'smethod) 0.44C
and the Analyst gave his opinion that the said sample contains not less than sixteen per cent (16.0 per cent) of added water.
9. What the learned Counsel contends is that it was the duty of the Analyst to have given a quantitative break Up of each of the different kinds of non-fat solids. According to him the report of the Analyst is useless unless it shows the break up of the kinds of the non-fat solids.
10. A similar argument was raised and repelled in the case in Mansingh Amarsingh v. State : AIR1960MP125 where it is stated:
I cannot accept this argument which realty ignores both the requirements of the law, and the modus operandi of the analysis, indicated for such cases. If the law had prescribed a minimum percentage content of each of the different kind of the non-fat solids, certainly, there should be a break up during analyst. But if the law has prescribed a minimum content of this non-fat solids all lumped together, I do not see why the expert should go out of his way to report such a break-up, Certainly it is possible by some laboratory tests to show how much of each of the separate non-fat so ids is found in the milk.
There may be certain lines of research in which such a break-up is necessary. In fact, there may be lines of research in which a more elaborate break-up right down to amino acids will be necessary. But experts will go and need go only so tar as the law and the occasion requires. The law here requires a quantitative break-up of the milk only into three contents (1) fats which are separately extracted and measured, (2) all solids other than fats which are estimated by evaporation ad (3) whatever is left as water, which obviously can be worked out by simple arithmetic without separate estimation. To the extent that each of the two contents, namely, the fat and non-fat solid felt short of the prescribed limit, the water content will be increased.
With these observations I am in respectful agreement.
11. I may in this connection refer to the case an Bridge v. Howard (1897) 1 QB 20 where the certificate stated:
I am of opinion that the sample contains the parts as under milk 94 per cent added water 6 per cent. This opinion was based on the fact that the sample contained 7.97 solids non-fat, whereas genuine milk contains not less than 8.5 solids nonfat.
This certificate was held to be good, because the analyst not only stated the percentage of added water but also gave the scientific basis on which his conclusion rested.
No other point arises in these cases. The conviction and sentence passed on the accused in both the cases C.C. No. 135 of 1960 and C.C. No. 160 of 1960 are, therefore, correct and are confirmed and the revision petitions are dismissed.