(1) This appeal is against the acquittal of the respondent, Arumugham by the Third Presidency Magistrate, Saidapet, for an offence punishable under Ss. 7 and 16 of the Prevention of Food Adulteration Act r/w Rules 44(c) and 46 of the Rules framed thereunder. The Food Inspector of the Corporation of Madras, P.W. 1 purchased from the respondent on 21-9-1962 a sample of ghee exhibited for sale which, when analysed by the Public Analyst, was found adulterated with 13% of foreign fat.
(2) There is no dispute that after P.W. 1 purchase the sample of the ghee, he had conformed to the formalities in the matter of dividing the sample and sending 1/3rd thereof to the Public Analyst. The result of the analysis disclosed 87 per cent genuine ghee, 13 per cent foreign fat (not derived from milk or cream) and a Reichert value of 22.5 per cent, so that the Analyst certified that the sample was adulterated with 13 per cent extraneous fat and this opinion was based on item A.11.14 of Appendix B of the Rules which prescribes the minimum Reichert value of genuine ghee for the State of Madras to be 26.
(3) The learned Magistrate found that the prosecution had not established any extraneous fat or added matter not exclusively derived from milk in the sample purchased from the respondent, and, therefore, there was no violation of Rule 44(c) or 46 though, according to him, regard being had to the definition in S. 2(i)(1) of the Act, a violation of item A.11.14 would amount to an offence. He further observed that S. 16 of the Act deals not only with violations of offences in the Act but also the Rules and there can be no two opinions that the respondent would be liable for offences punishable under S. 7 r/w 16 of the Act if the other conditions prescribed in the Prevention of Food Adulteration Act are satisfied.
(4) For the respondent, it was sought to be made out that the variation in the Reichert value was due to the fact that the ghee in question was from the milk procured in Coimbatore as the cattle in Coimbatore are fed with cotton seeds. The learned Magistrate was not prepared to go into this question as the violations of the provisions of the Act as well as the rules are offences per se. But a further contention was urged before him that S. 20 of the Act had not been complied with and that Ex. P-5, the sanction, did not set out the offence which the accused had committed. He upheld this contention as in his view the averment that the sample was adulterated with 13 per cent of foreign fat was not a correct description of the offence which the respondent had committed and following the decision of this Court in Bala Chander v. Food Inspector, Cri. Appeals Nos. 198 to 202 of 1963 disposed of by Kailasam, J. on 2-8-1963 (Mad) which, in his opinion, applied on all fours to the facts of the case before him, he held that the prosecution for contravention of item A.11.14 of Appendix B has to fail for want of compliance of S. 20 of the Prevention of Food Adulteration Act.
(5) The observations of Kailasam, J. relied on by him were made after a consideration of S. 20 of the Act in the light of the Supreme Court ruling in State of Bombay v. Parshottam Kanhaiyalal, : 1SCR458 and the Privy Council Ruling in Gokulchand Dwarkadas v. The King , a case under Clause 23 of Cotton Cloth and Yarn (Control) Order, 1943 approved by the Supreme Court in Madan Mohan v. State of Uttar Pradesh, : AIR1954SC637 . The learned Judge observed:
'The Health Officer while giving his consent in writing, exercised his mind only as regards ghee containing 15 per cent foreign fat. In fact, the note requesting for sanction to prosecute specifies only Rules 44(c) and 46. There is nothing to show that 'the Health officer considered the report of the Public Analyst that the Reichert value was less than that prescribed under Item A.11.14 of Appendix-B and, therefore, decided that the accused should be prosecuted. As the written consent was not given after consideration of the fact for prosecuting the accused for selling ghee, which did not come up to the standard as regards the Reichert value, the accused cannot be prosecuted for that offence.'
Under Clause (1) of sub-section (i) of S. 2, an article of food can be deemed adulterated if the quality or purity of the article falls below the prescribed standard or its constituents are present in quantities which are in excess of the prescribed limits of variability. 'Prescribed' is defined in Clause (xii) as meaning 'prescribed by Rules made under this Act' and such rules in the context are Rules 44(c) and 46. Item A-11.14 which defines 'ghee' as the pure clarified fat derived solely from milk or from curd or from cooking butter or from cream to which no colouring matter or preservative has been added has not been conformed to in the present case as the minimum Reichert value which ought to be 26 in Madras was found to be only 21.9. In fact, the learned Magistrate himself has held the ghee in question to be a sub-standard and, therefore, adulterated. But he acquitted the accused, as the consent required to prosecute him had not been obtained in the manner indicated by Kailasam, J. In Cri Appeals Nos. 198 to 202 of 1963, dated 2-8-1963 (Mad).
(6) In Subramaniam v. The Food Inspector, Cri.R.C. No. 452 of 1961 disposed of on 5-9-1962 (Mad), Ramakrishnan, J. had to deal with a case of ghee adulterated with foreign fat. The analysis had disclosed that the sample of ghee contained only 21.7 Reichert value which, according to the rules shall be not less than 26 per cent, and this arithmetically worked came to 17 per cent, so that the charge sheet stated that the ghee was adulterated by 17 per cent of fat. It appears to have been urged before Ramakrishnan, J., among other contentions that the accused had no opportunity to verify the Analyst's report about the Reichert value. The learned Judge negatived this contention on the short ground that S. 13(5) of the Act enabled the prosecution to use the Analyst's report as evidence of the facts stated therein, unless superceded under sub-section (3) of S. 13. It was open to the accused to have taken advantage of the provision in S. 13(2) if he wanted a further verification of the aforesaid report; but not having done so, the Judge observed, there was no reason to doubt the result of the analysis revealed in the Analyst's certificate.
(7) A further contention urged more relevant in the present context, was that from the deficiency in the Reichert value, it could not be assumed that the ghee was adulterated with fat. This contention was sought to be supported by urging inter alia that since the milk of cattle reared in different parts of the country vary in their quality, the Reichert value could not be a dependable guide. This contention was not upheld by Ramakrishnan, J. He observed:
'But it is not possible to embark on any such investigation. The reason is that so far as the Food Adulteration Act and the Rules thereunder are concerned, what is pure ghee and what is adulteration of ghee are matters of definition. When the rules say that any deficiency in the Reichert value below a particular stipulated figure means a sub-standard quality and such sub-standard quality is by definition an act of adulteration, it will not be open to the court to embark on an academic investigation about the Reichert value and its bearing upon the quantum of fat in milk in different areas in this country. The Supreme Court, in M. V. Joshi v. M. U. Shimpi, : 3SCR986 while dealing with an analogous case of adulteration of butter observed:
'If the quality or purity of butter falls below the standard prescribed by the said rules or its constituents are in excess of the prescribed limits of variability, it shall be deemed to be adulterated within the meaning of S. 2 of the Act. If the prescribed standard is not attained, the statue treats such butter, by fiction, as an adulterated food, though in fact it is not adulterated.'
'The same reasoning will apply when the quality of ghee and its definitions for the purpose of adulteration are prescribed by the statue in relation to the result revealed in the laboratory for the Reichert test.'
I am in respectful agreement with the above observations and, therefore, I have no hesitation to hold that the ghee in this case is adulterated within the meaning of the Act.
(8) The further question is whether the acquittal of the respondent for non-compliance of S. 20(1) can be upheld. The argument was that the prosecution in the instant case was not instituted either by the State Government or by a local authority or by a person authorised in that behalf by the State Government or local authority and, therefore, the prosecution by the Food Inspector was unsustainable. By G.O. No. 1861 dated 6-6-1956, the Food Inspectors appointed under S. 9 of the Act have been authorised by the State Government under S. 20(1) to institute prosecutions for offences under the Act. The prosecution in this case was instituted by the Food Inspector by virtue of the authority thus given to him and the fact has been specifically stated in the complaint. The objection in terms urged before me appears to have been urged before me appears to have been urged before Veeraswami, J., in Madurai City Co-operative Milk Supply Union v. Food Inspector, 1961 Mad WN 172. The argument as in this case, was that persons like Food Inspectors could be authorised under S. 20(1) of the Act only in relation to a specific or a particular case and not in general terms applicable to all prosecutions. The learned Judge was not inclined to countenance this argument. He observed at page 174:
'I am unable to agree with the construction contended for. The words 'in this behalf' (in sub-section (1)) do not bear in the context the meaning attributed to them. In my view, they mean no more than the authority vested in the State Government or a local authority for the purpose of enabling the person to institute a prosecution. The intention appears to be to provide for a delegation by the State Government or a local authority of its power to institute prosecution under the Act. To construe the section in the way the learned counsel has asked me to do would defeat the very purpose of this provision for delegation of the power to institute a prosecution. Once authorised to institute a prosecution, the authority so vested in the person is of the same quality and virtue as the power of the State Government or a local authority to institute a prosecution. This is in contrast with a case of a person enabled to institute a prosecution with the written consent of any of the parties enumerated in the sub-section. In my opinion, therefore, the Food Inspector in this case was competent to lay the complain.' If I may say so with respect, the above reasoning applies to this case and there is no substance in the contention that the prosecution instituted on the complaint and consent by the Food Inspector in this case has to fail.
(9) The Food Inspector has satisfied himself that the ghee of which sample was taken by him was adulterated. In Cri. Appeals Nos. 198 to 202 of 1963, dated 2-8-1963 (Mad) already referred to by me, Kailasam, J. has taken the view that where the offence relates to contravention of rule 44 or Rule 46, the officer giving sanction to prosecute should not only consider the report of the Analyst but also all the facts which constitute the offence in each case. For instance, if the contravention is of Item A.11.14 of Appendix B, it is not sufficient if sanction for prosecution is accorded for selling adulterated ghee, it should further specify the manner in which the relevant rules and the items have been contravened.
(10) Appendix B deals with definitions and standards of quality of different articles of food and they are the standards of quality of various articles of Food required under Rule 5. Rule 44 prohibits sale by oneself or by any servant or agent among other things, ghee which contains any added matter not exclusively derived from milk fat. Rule 46 reads:
'No person shall sell or have in his possession for the purpose of sale or for use as an ingredient in the preparation of an article of food for sale a mixture of ghee or butter or any substance (a) prepared in limitation of or as a substitute for ghee or butter; or (b) consisting of or containing any oil or fat which does not conform to the definition of ghee.'
When, therefore, a complaint is filed under Ss. 7 and 16 of the Act r/w Rules 44(c) and 46 or with Rule 44(b), the sanctioning authority must be deemed to have exercised his mind in considering the analyst's report the elements constituting the offence. In this view, I am unable to subscribe to the view that want of specific sanction for contravention of the items in terms defined in Appendix B would affect a prosecution when the offence contemplated by the non-conformity with the definitions and standards of quality are those mentioned in Rules 44 and 46. In this case, as already indicated, I prefer to follow the decisions in 1961 Mad WN Cri 172 and Cri R.C. No. 452 of 1961, dated 5-9-1962 (Mad), so that to my mind, the acquittal of the respondent by the learned Magistrate was not justified. His acquittal is, therefore set aside and he is convicted under Ss. 7 and 16 of the Prevention of Food Adulteration Act, and Rules 44(c) and 46 of the Rules thereunder. I sentence him, in the circumstances of this case to pay a fine of Rs. 25 within two weeks from this date and in default to undergo simple imprisonment for one week.
(11) Appeal allowed.