1. This revision is by the first and the second accused in C.G. No. 555 of 1956 on the file of the Additional First Glass Magistrate, Madurai. They were convicted for an offence under Section 16 (1)(a) read with Sections 7(1) and 2(1)(a) of the Prevention of Food Adulteration Act, 1954 and Rule 46 of the Rules framed under the Act. The first accused was sentenced to a fine of Rs. 75 and the second accused to Rs. 25. The convictions and sentences were upheld on appeal by the Sessions Judge, Madurai.
2. The first accused is a ghee and butter merchant at Madurai and the second accused is a clerk under him. On 28th Agust, 1956, P.W. 1, the Food Inspector of Madurai Municipality, went to the shop of the first accused and purchased from the second accused, his clerk, 4 1/2 palams of butter. The first accused was not present then. The second accused sold to P.W. 1 the required quantity. P.W. 1, the Food Inspector, intimated to the clerk (second accused) that he was making the purchase for the purpose of analysis. He served on him a notice, the original of Exhibit P-2, and has obtained his acknowledgement on the back of Exhibit P-2. After this he observed the usual formalities as required by the Rules. He divided the quantity of butter purchased into three parts, sealed them in three bottles, gave one bottle to the second accused and retained the other two bottles with himself and then sent them to the Municipality for being sent to the Public Analyst. The sample bottle that was intended for analysis was received by the Public Analyst on 1st September, 1956 and as is the practice for the Public Analyst to keep the sample butter sent for analysis in a frigidaire the butter was kept in the frigidaire and was taken up for examination on 31st October, 1956. The moisture content was examined and it was found to contain 23 per cent, and as regards the fat content it contained 14 per cent, of fat not derived from milk or cream. Under the Rules more than 16 per cent, of moisture and any quality foreign fats are prohibited.
3. After the receipt of the report of the Public Analyst a prosecution was launched against the two accused and before the trial commenced the accused-vendor exercised his right under Section 13(2) of the Act. Under the provisions of that section after the institution of a prosecution under the Act the accused vendor may, on payment of the prescribed fee, make an application to the Court for sending the part of the sample retained by him to the Director of the Central Food Laboratory for a certificate; and on receipt of the application the Court first ascertains that the mark and seal or fastening as provided in Clause (b) of Sub-section (1) of Section 11 are intact and then sends the part of the sample under its own seal to the Director of the Central Food Laboratory who shall thereupon send a certificate to the Court in the prescribed form within one month from the date of the receipt of the sample specifying the result of his analysis. The accused having exercised this right the Court sent the part of the sample retained by him to the Director of the Central Food Laboratory for test and certificate and this certificate shows the result of his analysis as follows:
'Moisture 27.7 per cent.; Fat 68.2 per cent.; Reichert value 17.4 per cent.
Opinion: The sample is adulterated on account of its containing (1) moisture in excess of 16 per cent, the maximum permitted and (a) extraneous added fat not derived from milk or cream to the extent of not less than 30 per cent.
4. It is clear from the report of the Public Analyst and the Director, Central Food Laboratory, Calcutta, that the sample of the butter got from the first accused was adulterated. The first accused in his statement does not deny the sale of the sample cutter to P.W. 1 the Food Inspector but admits the same and states that he collects butter through his agents from the houses in different villages outlying Virudhunagar, Tirthangal, Rajapalayam and Sankarankoil. The butter so collected by the agents and what is called Swadeshi butter was prepared by churning the curd by the hand-process by the villagers and the butter that floats over normally consists of a certain percentage o moisture and that this percentage of moisture in the butter got out of the hand-process cannot be avoided. The butter thus collected by the agents is pooled over and sent to the shop of the first accused for sale. The general public as well as the purchasers are quite aware of thenature, substance or quality of the butter that is sold in his shop for these 18 years and that no prejudice is caused to such purchasers, much less any false representation was ever made to them.
5. He then refers to certain texts to show that the moisture content in the butter would vary from 16 to 24 per cent, and then quotes from the ' Indian Dairyman', of April, 1954, published by the Indian Science Association that
the moisture content in makkan (butter) made by the country method-usually varies from. 25 to 35 per cent.
6. The accused adds that, judged by these approved standards, no offence has been committed by him as the percentage of moisture content in the butter that he sold was less than the percentage quoted above. He further states that the analytical calculation and standards of purity prescribed for butter are based only on the analysis made on scientific and mechnical process done in Government laboratories, by experts and that those standards of purity and calculations are not practicable (underlining is mine) so far as country or Swadeshi butter is concerned. He also submitted that the climatic conditions, atmospheric changes and the feeding of cattle are factors which have to be taken into consideration in deciding the purity of butter which will influence the chemical and natural conditions of butter. He then points out how in the present case the sample butter taken from his shop on 28th August, 1956, was tested three months later and on account of the lapse of time butter was likely to decay and that the result of the analysis might be due to that factor also.
7. The evidence of P.W. 1, the Food Inspector, shows that the shop of the first, accused is known as 'Madurai Ghee Supplying Company and Ghee Laboratory'. In cross-examination it was elicited that the first accsued has a chemist for testing butter and ghee and that he has a laboratory attached to his shop for that purpose.
8. The fact that the accused has a chemist for testing butter and ghee and that he has a laboratory attached to his shop for that purpose clearly shows that he must be testing the butter which he is selling in the laboratory attached to his shop. It is not suggested that the butter which he sold contained according to his tests less than 16 per cent, moisture and that there was no foreign fat. In fact, that it contained moisture of more than 16 per cent, and had also foreign fat is not seriously disputed before me.
9. It is true that there is difference in the results yielded by the tests conducted both by the Public Analyst and the Director of Central Food Laboratory. The analysis made by the Public Analyst, Madras, shows that the moisture content was 23 per cent, while the fat content not derived from milk or cream was 14 per cent, whereas the test conducted by the Director of Central Food Laboratory shows that, the sample butter contained 27.7 per cent, moisture and foreign fat not derived from milk or cream of not less than 30 per cent. The same butter has been subjected to tests in two different laboratories, both set up by the Government and both are scientific tests. Nevertheless the results vary considerably. Under Section 13 (3) of the Act the certificate issued by the Director of the Central Food Laboratory under Sub-section (2) shall supersede the report given by the Public Analyst under Sub-section (1). What is interesting to be noted here is that when the accused vendor makes an application under Sub-section (2) of Section 13 to have the sample sent to the Director of the Central Food Laboratory he does it in the hope that the results as shown by the Public Analyst may not be quite correct and that the result of the analysis carried on by the Director of the Central Food Laboratory may be in his favour ; but in this case it has turned out to be otherwise. I felt some difficulty in understanding as to why the same butter when subjected to chemical analysis one by the Public Analyst, Madras and the other by the Director of Central Food Laboratory should show different percentages in regard to moisture and fat content. I, therefore, called the Food Analyst, Madras, as a witness in revision and examined him. I felt it necessary to do so as I was puzzled with the difference in the results shown in f espect of the same butter when examined in two laboratories. He frankly admits that it is very difficult for him to guess the source of error but in regard to Reichert value, however, he stated that butter is a somewhat perishable article of food and that the vendor's sample might have undergone some decomposition during the time when it was with' the first accused before its being sent to the Director of Central Food Laboratory. With regard to the percentage of moisture he states that there should be no difference except to quote his own words 'In my opinion the moisture content should not differ by more than one unit at the most.' When I pointed out to him that it has differed here his answer was 'I am in a very difficult position because it is very difficult to guess what were the sources of error.' Then he went on to state that the butter was kept in the refrigerator as soon as it was received and then it was taken out for examination and that on account of its being kept in the refrigerator the condition of the butter was not likely to be altered and when I pointed out to him if there was a likelihood of the moisture content being affected on account of the time lapse between the date of the purchase and the date of its receipt in the laboratory for test he stated that on this account the moisture content would not be affected. He was thoroughly cross-examined and the point sought to be made out by the learned Counsel by the cross-examination was that in the case of country or Swadeshi butter, that is, butter manufactured by the household in village parts by the hand-churning process the moisture content is bound to be between 25 to 35 or at least 20 to 30 per cent. It is only in the case of butter collected by the mechanical process that the moisture content would be of a less percentage and that in butter got by the ordinary method adopted in the village parts, that is by the churning process, the moisture content was bound to be between 20 to 25 per cent. It is quite possible, as contended for by the learned Counsel for the accused, that the moisture content in the butter manufactured by the villagers by the hand process would be between 20 and 30 per cent. In this connection it is interesting to note what is contained in an article which has appeared in the journal 'Indian Dairyman', dated April, 1954 and on which learned Counsel for the accused relies and which was also quoted by the first accused in his statement in the Court below. This is what the writer of the article says at page 77 of the journal:
The common practice adopted in our villages for churning and isolation of makkan (butter) suffers from the following defects:
(1) agitation ununiform, uncontrolled and in alternate directions,
(2) no temperature control and
(3) addition of water in indifferent amounts.
10. The learned writer of the article himself recognises the defects in the country system adopted for churning and isolation of butter.
11. It is clear, therefore, that the butter sold by the first accused was purchased from the villagers and that it might contain more than 16 per cent, of moisture. But the mere fact that by the country method, it is not practicable to maintain a less percentage of moisture is no justification for selling butter cotaining more than the prescribed percentage of moisture content when it is contrary to the Rules. The rule clearly lays down that the butter that is sold should not contain more than 16 per cent, of moisture. The first accused has a laboratory attached to his shop and has a chemist to test the articles of food which he sells namely, butter and ghee. He must have, therefore, known that the rural or country butter or Swadeshi butter as he calls it and which he gets for sale through his agents who procure the same from the villagers in the different villages contains more than 16 per cent, of moisture and he must have also known that selling butter which contains more than 16 per cent, of moisture is against the Rules and is an offence under the Act. It is no justification to say that it is not practicable to get butter from the villagers with a less percentage of moisture. If it is not practicable and what is obtainable does not conform to the standard prescribed by the Rules it is the clear duty of the vendor not to sell such article as selling of such article is clearly an offence under the Rules. It may be a case for reconsideration of fixing the percentage of moisture content in the case of butter manufactured by the rural method or by the hand process. The Central Committee for Food Standards which has been consulted by the Central Government and on whose recommendation the present percentage of moisture content in butter is fixed may have to revise its opinion but so long as the Government has fixed 16 per cent, as the maximum percentage of moisture that may be present in butter and anything more than that percentage is objectionable whether it is practicable to get that percentage of moisture in butter of all kinds either if it is got by the mechanical process or by the rural or hand process it is the bounden duty of the first accused to conform to the standards prescribed by the Rules. Any sale of butter which does not conform to the standard prescribed in the Rules is undoubtedly an offence. Times are far advancing and improved methods of getting butter are available and if that is not taken advantage of and adopted for manufacture of butter (in the village) for the purpose of selling pure stuff then less the attempt to make butter the better. What is aimed at by the Act and the Rules framed under it is a certain standard of purity and that must be maintained at all costs. If the quality of butter that is sold does not conform to the standard prescribed, however much impracticable it may be for villagers from whom the accused is said to have purchased, to manufacture butter of the prescribed quality, it does not cease to be an offence. The petitioners have, therefore, been rightly convicted of the offences with which they stood charged and in the circumstances of the case the fines cannot be said to be excessive. The revision case is, therefore, dismissed.