Yahya Ali, J.
1. This is an appeal by the Public Prosecutor against the acquittal of the respondent by the Stationary Sub-Magistrate of Narsapur of the alleged offence of adulterating milk, an offence punishable under Rule 29 of the rules framed under the Madras Prevention of Adulteration Act, 1918 (hereinafter called the Act). As the respondent was not represented and the matter was of some public importance, Mr. B. T. Sundararajan was appointed amicus curiae and I am obliged to him for the valuable assistance rendered by him.
2. The case brought by the Municipality of Palacole against the respondent who is a milk vendor, was that he was in possession, for the purpose of sale, of buffalo's milk which had been adulterated by the addition of 13 per cent, of water. A sample of the milk was obtained by the Sanitary Inspector, P.W. 1 who, aftre complying with the prescribed formalities, sent it to the Government Analyst who in his certificate Ex. F, gave the opinion that the sample sent to him contained milk which had been deprived of fat to the extent of at least 61 per cent, and that the proportion of the milk was not more than 87 per cent, while the added water was at least 13 per cent. He also stated in his opinion that the sample contained only 1.5 per cent, of milk fat and 7.8 per cent, of milk solids other than milk fat, as against the prescribed percentage of 4.5 per cent, of milk fat and 9 per cent, of milk solids. The accused merely denied the offence although at a later stage he also pleaded that the milk belonged to Vanga Ramamurthi under whose orders he was delivering it to P.W. 3's coffee hotel. That plea was rightly rejected by the Magistrate. The Magistrate found it established in the evidence that the milk which was supplied to P.W. 3 by the respondent and whose sample was taken by the Sanitary Inspector P.W. 1 was boiled milk and not raw milk. He was of the view that before and during boiling it was necessary to add water to prevent the milk boiling over and that therefore the adulteration in this case of 13 per cent, of water was not ' to increase the bulk or measure or to debase the quality of milk.' He found that the accused could not be 'classed with milk vendors who sell raw milk fraudulently added with water to increase its measure', and in that view, he acquitted the accused.
3. It must, at the outset, be pointed out that the Magistrate was not justified in introducing as a rest of liability the purpose for which adulteration was effected and further of importing into it the element of an intention to commit fraud. The material previsions do not postulate that for establishing the offence of adulteration it's either necessary to prove that the intention was to icrease the bulk or measure or to debase the quality or that the intention w as of a fraudulent nature. In another place in his judgment, the learned Magistrate seems to express the view that since in this case it is not raw milk but hot milk that was being sold, the provisions of the Act did not apply. It is against this view of the Magistrate that the present appeal is essentially directed.
4. Milk is defined in Section 2 of the Act as meaning the
normal clean secretion drawn from the udder of a healthy cow or buffalo either completely, or, after the first portion of such secretion has been drawn off, to completion.
5. Under Section 5(1)(d) it is provided that every person who offers for sale or sells milk which is not up to the standard of purity prescribed by the Local Government shall be punished for the first offence with fine which may extend to one hundred rupees and for every subsequent offence with fine which may extend to five hundred rupees. Under Section 20(2) the power of making rules under the Act has been given to the Local Government for the following among other purposes:
(f) prohibiting or regulating in the interest of public health,
(i) the addition of water or other diluent or adulterant to any food;
(ii) the abstraction of any ingredient from any food; and
(iii) the sale of any food to which such addition or from which such abstraction has been made or which has been otherwise artificially treated.
6. In the rules framed under the Act, the following rules are material to the issue in this case.
Rule 27 : No person shall add any water, or any skimmed or separated milk to milk intended for sale and no person shall either by himself or by any servant or agent sell or offer or expose for sale, and no person shall have in his possession for the purpose of sale any milk to which any such addition has been made.
Rule 29 : Whoever commits a breach of any of the rules in this part shall be punishable-
(a) in the case of a first conviction, with fine which may extend to one hundred rupees, and
(b) in the case of a subsequent conviction, with fine which may extend to five hundred rupees.
With regard to the standard of purity referred to in Section 5(1)(d) of the Act, the rules relating to the standard prescribed for buffalo's milk are Rules 19 and 20 which are in these terms :
Rule 19 : Where a sample of buffalo's milk (not being sold or offered for sale as skimmed or separated milk) contains less than 4.5 per cent, of milk fat, it shall be presumed for the purposes of the Act, until the contrary is proved that the milk is not genuine, by reason of the abstraction therefrom of milk-fat, or the addition thereto of water.
Rule 20 : Where a sample of buffalo's milk whether sold, or offered for sale as buffalo's milk or as skimmed or separated buffalo's milk, contains less than 9 per cent, of milk solids other than milk fat, it shall be presumed for the purposes of the Act, until the contrary is proved that the milk is not genuine by reason of the addition thereto of water.
I have already mentioned with reference to Ex. F the Government Analyst's certificate, that as against 4.5 per cent, of milk fat. and 9 per cent, of milk solids prescribed under the foregoing rules, the percentage in the case of milk taken from the respondent was 1.5 per cent, of milk fat and 7.8 per cent, of milk solids. There can be no question therefore that the milk sold by the respondent was not of the nature, substance and quality prescribed under the rules and was not up to the standard of purity prescribed by the Local Government.
7. The distinction sought to be drawn however was on the basis that the respondent did not pretend to sell milk in the same state as it came from the buffalo; but he sold it as hot milk to which it was essential to add some water and in this connection attention was drawn to the evidence of P.W. 3 himself who stated that he was aware that it was boiled milk, that it was milk with water added and that with that knowledge he purchased the milk. The knowledge and awareness of P.W. 3 are wholly immaterial as the object and policy of the statute is to protect the public by prohibiting the sale in any circumstances of adulterated milk or milk which did not come up to the prescribed standard of purity. The only question then is whether it ceases to be milk within the meaning of the Act when it is sold as hot milk. Prima facie it does not, having regard to the definition of milk in the Act. The Act itself makes no distinction between raw and hot milk and provides no exception in the case of hot milk. To recognise and give effect to any such exception on a priori grounds would be contrary to the spirit and intendment of the Act and the rules and would enable a milk vendor to adulterate milk to any extent he pleases and escape libaility altogether by merely applying some heat to the milk.
8. Although there is a mass of English decisions under the Sale of Food and Drugs Acts concerning the several varieties of milk-new, sweet, skimmed, separated, dried, condensed, etc.--(the Madras Act does not notice any such distinctions), there appears to be only one case which has dealt with hot milk and that is Harrington v. Slater 90 L.J.K.B. 265. In that case, the appellant had asked the respondent to supply him with a glass of hot milk, which she did. The milk was deficient in fats. The Justices held that no offence was committed relying upon an earlier decision in Lane v. Collins (1884) 14 Q.B.D. 193 which was a case of skimmed milk. It was contended for the respondent in the Court of Appeal that the milk had ceased to be milk in the commercial sense, that the appellant asked for hot milk and received hot milk and that hot milk need not comply with the Regulations. For the appellant it was argued that the respondent should have supplied the appellant with milk in its natural condition, but which had been made hot. The latter contention prevailed. In the leading judgment, Earl of Reading, C.J., raised the question whether when a purchaser asked for a glass of hot milk and was served with hot milk which had been adulterated, there had been a delivery to him by the sellor of milk of the nature, substance and quality demanded. Referring to Lane v. Collins (1884) 14 Q.B.D. 193 he pointed out that since that decision, the Sale of Milk Regulations, 1901, had come into force which provided the requisite percentage of fat and milk solids that should be found in merchantable milk. Darling J., who was a party to this decision, said:
The Justices have decided that no offence has been committed on the ground that when the appellant asked for hot milk he was supplied with what he asked for, when in fact all the respondents supplied him with was milk which had ceased to be milk owing to the deficiency of necessary constituents.
These observations forcibly apply to the present case and from the judgment of the Chief Justice it is clear that Lane v. Collins (1884) 14 Q.B.D. 193 upon which the justices had relied was wrongly decided. I may point that the decision in Lane v. Collins (1884) 14 Q.B.D. 193 which was given in 1884 was under the Sale of Food and Drugs Act of 1875, which has since been repealed. The Act now in force in England is the Sale of Food and Drugs Act of 1938. In Section 20(1) of that Act milk is defined to mean milk intended for sale or sold for human consumption, or intended for manufacture into products for sale for human consumption. In Section 100(2)(a) of that Act, it is provided that any reference to milk shall be construed as including a reference to cream and to separated milk but not as including a reference to dried milk or condensed milk. The standard quality of milk is prescribed under what are called the Sale of Milk Regulations. In Harrington v. Slater 90 L.J.K.B. 265 reference was nude to the Regulations of 1901 which were said to have superseded the decision in Lane v. Collins. (1884) 14 Q.B.D. 193 Those Regulations have from time to time been changed and the Regulations now in force are the Sale of Milk Regulations of 1939 (printed at page 257 of Bell's Sale of Food and Drugs, 11th edition). The 1939 Regulations prescribe that a sample of milk must contain at least 3 per cent, of milk fat and 8.5 per cent, of milk solids which precisely corresponds to the percentages prescribed under the Madras Act with regard to cow's milk. The important point to be noted is that neither in the English Sale of Food and Drugs Act nor under the Sale of Milk Regulations nor under the Milk and Dairies Regulations 1926 to 1943 is it contemplated that hot milk should be treated as anything different from milk in the ordinary sense.
9. Hot milk is, thus both in the English law and under the Madras Act nothing but milk in its natural condition which has been made hot and it should contain the prescribed minima of milk fat and milk solids. When it is found that on account of adulteration with water or abstraction, those percentages diminished and that the sample taken of the adulterated milk disclosed that in the place of 4.5 per cent, there was only 1.5 per cent, of milk fat, there can be no doubt that the person who sold the milk, whether in raw state or as hot milk, infringed the prohibition contained in Section 5(1)(d) of the Act read with Rules 19, 20 and 27 and is punishable under Rule 29(a) as also under Section 5(1)(d) of the Act. In my opinion, the Magistrate came to an erroneous conclusion as to the effect and scope of the material provisions of the Act and the Rules.
10. The appeal must be allowed and the acquittal of the respondent must be set aside. The respondent is convicted under Section 5(1)(d) of the Madras Prevention of Adulteration Act, 1918, and Rule 29(a) of the Rules framed under that Act. With regard to the sentence, I have to take into account the fact that P.W. 3 who is a coffee hotel-keeper deposed that what he wanted was boiled milk adulterated with water and that he was aware of the fact that he was purchasing such impure milk. Further the object of the Public Prosecutor in filing this appeal was mainly to obtain the ruling of this Court as to the applicability of the Act to hot milk. In view of these considerations, the sentence need not be as severe in this case as ordinarily it has to be in such cases. I sentence the respondent to pay a fine of Rs. 15 in default to suffer simple imprisonment for one week.