S. Padmanabhan, J.
1. On a complaint by the Food Inspector, Kanhangad Circle, the accused was convicted for an offence punishable under Section 16(1)(a) read with Section 7(1) and (2)(la)(m) Prevention of Food Adulteration Act, hereinafter referred to as 'the Act' and Rr. 44(b) and 50(1 a), Prevention of Food Adulteration Rules, hereinafter referred to as 'the Rules' as well as Rule 10, Kerala Food Adulteration Rules, by the Judicial First Class Magistrate, Hosdurg, who sentenced him to simple imprisonment for six months and to pay a fine of Rs. 1,000/-. The charge against him was that on 21-11-1979 at about 2 p.m. he was found having exposed for sale adulterated buffalo milk for humaji consumption at the premises of the Kanhangad Co-operative Milk Supply Society bearing No.VI/561-B of the Kanhangad Panchayat without licence. In Crl. A. No. 69 of 1982, the Sessions Judge, Tellicherry acquitted him. The case was taken up in calendar revision. Notices were issued. Both sides were heard.
2. The Sessions Judge acquitted the accused on the grounds : (i) he is entitled to protection under the proviso to Section 2(l)(m) of the Act, (ii) the freezing point test, which is the reliable test to find out added water was not conducted and (iii) Section 13(2) of the Act was violated.
3. Ext. P2 report of the Public Analyst showed that milk fat was 7.1% and milk solid non fat was 6.6% in the sample. The prescribed standard for buffalo milk is milk fat 5% and milk solid non-fat 9%. In the sample milk fat was found 2.1% in excess of the prescribed minimum. The main item of adulteration was deficiency in milk solid non-fat by 2.4% from the prescribed minimum.
4. Undoubtedly milk is an item of primary food. The proviso to Section 2(l)(m) of the Act reads:
Provided that, where the quality or purity of the article, being primary food, has fallen below the prescribed standards or its constituents are present in quantities not within the prescribed limits of variability, in either case, solely due to natural causes and beyond the control of human agency, then such article shall not be deemed to be adulterated within the meaning of this sub-clause.
5. In primary food when the quality or purity falls below the prescribed standard or its constituents are present in quantities not within the prescribed limits of variability solely due to natural causes beyond the control of human agency, it cannot be considered adulterated. In this particular case, adulteration is mainly due to milk solid non-fat being below the prescribed minimum. The question is whether it is solely due to natural causes beyond the control of human agency. If the answer is in the affirmative, the food cannot be said to be adulterated.
6. In this case undoubtedly the burden of proving this fact is not on the prosecution but on the accused. It was so held in Rajan v. Food Inspector 1982 Ker LT 706 : 1982 Cri LJ 170 wherein it was found (at P. 173):
The prosecution cannot be expected to prove that the fall in standard was solely due to natural causes and beyond the control of human agency. In the very nature of the circumstances this is a matter which it would be for the accused to prove.
7. It is an established legal principle that the burden of proof cast on the accused is not onerous as that of the prosecution to establish the case beyond doubt Prosecution is expected to prove the guilt of the accused beyond reasonable doubt by adducing evidence which the nature and circumstances of the case warrant. Burden of the accused is not so tough. He is not expected to prove his case beyond doubt. It is enough, if he establishes preponderance of probability for that purpose. It is not necessary for him even to let in evidence if the probabilities could be otherwise established. In order to establish his defence he can even rely on the evidence adduced by the prosecution and the attendant circumstances brought out by the prosecution evidence. If such evidence and circumstances are capable of probabilising his case, he can bank on them without adducing any evidence of his own. In this case also he is entitled to do so.
8. As I have earlier stated, milk is a primary item of food. From Ext. P2 it is seen that milk fat is far above the prescribed minimum. That leads to the inference that no water has been added to the milk. Non fatty solid contents alone being below the minimum could justify an inference that it may be due to natural reasons beyond the control of human agency. It is only common knowledge that quality of primary food can be affected due to various natural reasons which are beyond the reach of human power to control. Breed of the animal, manner of its feeding, quality of the food given, variations in seasonal changes, time of milching, intervals between milching, health of the animal and various other factors may influence variability from the prescribed standards and justify the existence of components, the qualities of which are not within the prescribed limits of variability.
9. In Food Inspector v. Rajan 1976 Ker LT 74 it was found that 'it is a recognised fact that in the case of milk, the composition varies in individual cows and also depends upon the bread of the cow, the manner of its feeding, the time of the year, the time of the day, the interval between milchings and other similar factors'. .
10. It can also happen that the Public Analyst has gone wrong in his conclusions. This is so especially when it is seen that milk fat was far above the prescribed minimum. Even though the report of the public analyst is evidence of the facts stated therein, it would be open to the court to decide whether his conclusions are correct or not. If the report is found by the court to be not free from doubt, the benefit of that doubt is also available to the accused. In an identical case in Dhani Ram v. State 1979 FAJ 107, the Allahabad High Court had occasion to hold 'By no stretch of imagination it could be said that the milk which was deficient considerably in non fatty solids was adulterated ' In this particular case the food inspector who was examined as P. W.3 did not specify that the sample was taken after stirring the milk. 'In the same decision it was also held:
The Division Bench also observed that when milk is stored the fat contents come to the top as the milk cools down and if sample is taken from the top portion without stirring it thoroughly the sample will be very high in fat contents and would not give a correct picture or, in other words, would not be a correct sample of the quality of the milk. The report of the Public Analyst was, therefore, held to be far from convincing and not absolutely free from doubt.
The same principle must be held applicable to the facts of the present case because the Food Inspector, who was bound to testify to the formalities of sampling has not spoken that sample was taken after stirring the milk. The same view was expressed in State v. Gangadhar Abarao Mankape 1981 FAJ 77 (Bom). All these decisions held that when fat content was above the prescribed standard, deficiency in non fatty solids cannot lead to the conclusion that milk is adulterated. Ordinarily it is not possible to take out non fatty solids alone out of the milk by artificial means without affecting the fat contents. The necessary consequence is that if non fatty solids are deficient in milk, fat also should be correspondingly so. If so, the conclusion must be that deficiency in non fatty solids alone cannot be caused by human agency without affecting the milk fat. In Pati Ram v. State (1981 FAJ 77) (Sic), the Allahabad High Court had occasion to find, referring to the evidence of the Public Analyst, that 'he stated that ordinarily it was not possible to take out non-fatty solids out of milk without affecting the fat contents in it. It means that if the non-fatty solids were deficient the milk fat should also be deficient - the case of Puran Singh was decided by a Division Bench. The Bench, in the circumstances indicated above, could not place reliance on the report of the Public Analyst. In this case the percentage of fat contents is more than the double of the minimum requirement and the non-fatty solids are less than half of the minimum requirement. In these circumstances the report of the Public Analyst cannot be taken as correct.'
11. Another ground of Adulteration seen from Ext. P2 report is presence of added water. This is one of the reasons attributed for the deficiency in milk solid non fats. 20% of added water was found in the sample. Admittedly, the freezing point test was not conducted. What was done was calculation of the milk solids-non-fat contents. That is not a safe test. Freezing point test is accepted as the reliable method of finding added water. Since that test was not done, Ext. P2 cannot be considered as correct. At least there is reason for a bona fide doubt regarding the correctness of Ext. P2, when this aspect is taken along with the facts stated earlier. In Food Inspector's case 1976 Ker LT 74, it was observed:
It is evident from the reports of the Public Analyst in the instant case that the percentage of added water was calculated not by adopting the freezing point test but by calculating the milk-solid-fat content alone. We need only say that the Public Analyst should have followed the freezing point test which has been considered as a reliable method of finding out the water contents in the sample to see if there has been contravention of Rule 44(b), Prevention of Food Adulteration Rules. The omission, however, is not of much consequence in this case because the charge against the accused rests not only on Rule 44(b) but also on sale of milk which does not conform to the standard fixed under the Act. The report of the Public Analyst shows that the milk sold by the accused was below standard and, therefore, adulterated.
12. The above aspects brought out by the prosecution evidence could be relied on by the accused in discharge of his burden that the variability was due to natural causes beyond the control of human agency. He could at least claim that these aspects were capable of creating a genuine doubt in the mind of the court as to the correctness of Ext. P2, under the cover of which he is entitled to acquittal.
13. Now the only aspect remaining to be considered is non-compliance of Section 13(2) of the Act, which, in view of what is stated above, dwindles to insignificance and becomes a matter of academic importance alone. Still, I am considering that aspect also since that was one of the contentions strongly pressed before me. Section 13(2) of the Act reads:
13(2). On receipt of the report of the result of the analysis under Sub-section (1) to the effect that the article of food is adulterated, the Local (Health) Authority shall, after the institution of prosecution against the person from whom the sample of the article of food was taken and the person, if any, whose name, address and other particulars have been disclosed under Section 14-A, forward, in such manner as may be prescribed, a copy of the report of the result of the analysis to such person or persons, as the case may be, informing such person or persons that if it is so desired, either or both of them may make an application to the court within a period of ten days from the date of receipt of the copy of the report to get the sample of the article of food kept by the Local (Health) Authority analysed by the Central Food Laboratory.
14. Under the provisions of the Act, as it stood before amendment, out of the three samples taken by the Food Inspector, the accused was entitled to get one. He was free to produce that sample before court in order to request the court to send the same to the Central Food Laboratory for a second opinion. After amendment, the Food Inspector has to send one sample to the public analyst and the others to the Local (Health) Authority under Section 11. Now the accused has nothing to do with the sample and his only right regarding the sample is to file an application under Section 13(2) to direct the sample with the Local (Health) Authority to be produced before court for being forwarded to the Central Food Laboratory for a second opinion. He is entitled, under Section 13(2), to get a copy of the report of the public analyst from the Local (Health) Authority, after institution of the prosecution. This is in substitution of his right, which was available before amendment, to produce the sample with him before court and apply for a second opinion. He is not only entitled to get a copy of the report of analysis from the Local (Health) Authority, the Local (Health) Authority is also bound to inform him that he has such a valuable right. Further, he has to be told that he has to file an application for that purpose within ten days from the date of receipt of the copy. In order to have an effective enforcement of the right within the time limit, he is not only entitled to get the above informations apprising him of his right along with a copy of the report he is also entitled to be informed by the Local (Health) Authority the specific court where the sample has to be produced and where he has to move the application.
15. In Chockalingam v. Food Inspector 1981 Ker LT 628 : 1981 Cri LJ 1225, Bhat, J. had occasion to hold thus (at Pp. 1228-29):
The right implicit in Section 13 of the Act of the accused to move the court to send the sample to the C.F.L. is a very valuable right conferred on him in substitution of other rights he had under the Act as it originally 'stood. Accused is given such a valuable right obviously because he has no sort of control over sample taken by the Food Inspector or the despatch of the sample to the Public Analyst by the Food Inspector. Once the sampling is done accused remains only a spectator of the further developments. It is this state of affairs which is sought to be remedied by conferring this right on the accused under Section 13 of the Act. In the nature of this right conferred on him, it is clear that the provision is mandatory. Exercise by the accused of this right is wholly dependent on the duty to be performed by the L.H.A. in sending a copy of the Public Analyst's report and also requisite information as contemplated in Section 13(2) to the vendor, etc. The right conferred on him is so valuable in nature that any failure on the part of the L.H.A. in discharging his corresponding duty, must necessarily be held to lead to prejudice to the defence; The Legislature fixed a limit of 10 days only with a view to avoid uncertainties. If that be so, the right conferred on the accused to move the court is circumscribed by this important limitation, viz., that he moves the court within a particular time-limit i.e. ten days from the date on which the information under Section 13(2) of the Act is conveyed to him. Section 13(2) does not contemplate the information being given to the vendor at any time of the choosing of L.H.A. The Section specifically states that the information must be given to him after the complaint is laid by the Food Inspector, before the appropriate court. In other words, when an accused receives a copy of the Public Analyst's report and also the information contemplated under Section 13(2) of the Act, he must necessarily know that a complaint has already been filed. He must also be able to know that he must move the court within 10 days from the date of receipt of the copy of the report, 'To invite their attention to Section 13(2) of the Act' does not amount to informing them about the right which they have under Section 13(2) of the Act. It may be that when an accused received such an informtion, he may go to a lawyer and consult him and take appropriate steps. It is also possible that he may not seek legal advice at all or may not seek legal advice within ten days. As I read the provisions of Section 13(2) of the Act, on a reading the information given by the L.H.A. the vendor without anything more and without legal assistance, must be able to realise that he has a valuable right vested in him of moving the court in an appropriate way. Failure to inform the vendor of his right to move the court within ten days would amount to non-observance of Section 13(2) of the Act. A statement inviting vendor's attention to Section 13(2) of the Act is no compliance at all, subsequently or otherwise, of the provisions of Section 13(2) of the Act. Such a statement does not have the effect of informing him of his right to move the Court in ten days. Unless he is so informed, he may not be aware of his right and consequently he loses the opportunity of exercising the right.
16. There is no dispute as to the mandatory nature of Section 13(2), the non-compliance of which will be fatal to the prosecution. But delay in compliance if it has not actually resulted in prejudice, may create only a different situation. That aspect of the matter we are not concerned in this case. In Food Inspector v. Kodungallur S. S. Bank Ltd. 1984 Ker LT 27 it was observed thus:
Any person who is arrayed as an accused in a prosecution under the Prevention of Food Adulteration Act should be enabled to make use of the opportunity statutorily given to him under Section 13(2) of the Act to file an application ^for examination by the Central Food Laboratory within the time prescribed. Refusal of such an opportunity, on the assumption that if the other accused who is an employee was given the opportunity, the opportunity so given to that accused should do duty for the employer accused as well, does not seem to be legally tenable. In all cases where there is multiplicity of accused, the employer and employee or principal and agent etc., the prosecution should see that notice under Section 13(2) of the Act is served on each of them so that there may not be any complaint of denial of the statutory opportunity by any of them.
So also, Bhaskaran Nambiar, J. in Food Inspector v. Kochunni 1984 Ker LT 871 : 1985 Cri LJ NOC 24 observed:
The copy of the report of the analysis was not given to the second accused and therefore there is violation of the mandatory provision contained in Section 13(2) of the Act. This is fatal for the prosecution and therefore the acquittal of the second accused has to be confirmed on the short ground that so far as he is concerned, Section 13(2) of the Act is not complied with.
17. Exhibit P5 is the intimation given to the accused. In Ext. P5 the name of the court was described as Sub-Divisional Magistrate's Court, Hosdurg. At that time there was no such court existing there; There was only the Judicial First Class Magistrate's' Court at Hosdurg. The case was pending in that court. Sample was produced before that court and application had to be filed in that court within 10 days of the receipt of the copy along with the intimation. Sometimes it may be possible for the accused, in spite of the mistaken description of the identity of the court, to find out the court and make an application in time. But that is not what is required. There must be supply of the correct information and details with which alone he must be capable of enforcing his right within the time allowed by law, without the help of any extraneous agency. He must also be made conscious of his rights and the requisite details must be supplied to him. Even the slightest mistake in the information regarding identity of the court may turn out to be material. An identical question came up for consideration before the Allahabad High Court in Ami Hussain v. State of U.P. 1983 FAJ 103 and it was held:
In the intimation sent it was said that the applicant may make an application to the Munsif within ten days and get another part of the milk sent to the Director, Central Food Laboratory, Calcutta, for re-analysis. This case was, however, pending not in the court of the Munsif Magistrate, Amroha but in the Court of 1st Additional Munsif Magistrate at Amroha. The applicant, therefore, could not have possibly made application in the proper Court to get another part of the sample sent to the Director, Central Food Laboratory for reanalysis and was clearly prejudiced.
18. That view has to hold good in this case also.
19. The appreciation of evidence made by the Sessions Judge and the conclusions arrived at by him are in conformity with the above discussions and conclusions. There is no scope for interference in revision. The decision of the learned Sessions Judge will have to stand.
20. The Crl. Revision case is disposed of as above.