Amaresh Roy, J.
1. This appeal has been preferred by a complainant, the Chairman of the Rishra Municipality, against an order of acquittal passed by the learned Magistrate of Serampore in a prosecution for an alleged offence under Section 7, read with Section 16 of the Prevention of Food Adulteration Act, 1954. The prosecution case was that the accused persons, namely, Madhusudan Dey and Sm. Manjuri Bala Dey, who were the seller and the proprietor respectively of a confectionery shop, had sold curd (Dahi) which, on chemical analysis, was found not to conform to the standard of quality prescribed by the Rules framed under that Act. The charge for storing and selling and exposing for sale adulterated Dahi in that confectionery shop at 78 Grand Trunk Road West, within Rishra Municipality. In the petition of complaint, besides the two accused named above there was another accused person Nishakar Modak, who was said to be an employee at that shop. The Food Inspector of Rishra Municipality, P. W. 1, visited the shop in the morning of December 4, 1958, and took samples of the curd (Dahi). Madhusudan himself wrote out and granted to the Food Inspector a receipt for the price of those samples, which was Ext.3, and the Food Inspector served the notice, Ext.2, on Madhusudan. In both of these documents, 'Dahi' is only mentioned without mentioning the source of milk from which Dahi was prepared. Prosecution alleged that the accused Madhusudan, on being asked, said that, as he had purchased the milk from elsewhere., he could not say if the Dahi was prepared from cows' milk or buffalo-milk. Originally, the three accused persons were tried. At that trial accused Madhusudan Dey pleaded guilty and he was convicted.
2. Upon an appeal preferred, the learned Sessions Judge of Hooghly set aside the order of conviction and sentence and sent the case back for retrial. At that retrial, the present respondents Madhusudan Dey and Sm. Manjuri Bala Dey were convicted and each were sentenced to pay a fine of Rs. 50/-, in default, to suffer rigorous imprisonment for one month by the Magistrate of Serampore. Against that order, this Court was moved in revision in Criminal Revision Case No. 436 of 1960 and, by an order dated June 15, 1960, the Rule was made absolute and a retrial was directed by my learned brother Debabrata Mookerjee, J. Thereupon, a fresh trial was held by another Magistrate, Sri A. K. Pain. At the trial, P.W.1, the Food Inspector, gave evidence to the effect that to his question at the time of taking the samples Madhusudan Dey, who was in the shop, could not say whether the curd, that is Dahi was of cows' milk or buffalo's milk. In cross-examination, he denied that there was any signboard outside the shop showing that only cow's milk and cow's milk products were sold there. Other P.Ws. corroborated him on that point. But D.Ws. 1 and 2 deposed that there was sign-board in front of the shop declaring that cow's milk and cowmilk products were sold in the shop and accused Madhusudan told P.W.1 that the sample taken was made of cow's milk. In cross-examination, D.W.1 also said that in the seizure list, Madhusudan wanted to write curd from cow's milk, but the Food Inspector, P.W.1, said that it was not necessary. He did not speak about the receipt, Ext.3. The report of the Public Analyst, Ext.5, shows the result of the analysis was that the curd contained 3.9 of milk-fat and 9.77 of milk solids and the Public Analyst was of the opinion that the sample of Dahi was adulterated. It was not stated in the Public Analyst's report, Ext.5, nor is there any evidence, that there was any examination to ascertain whether the Dahi had been prepared from cow's milk or buffalo's milk. In that state of evidence, the defence contended that as the sample of Dahi was made from cow's milk, on the report of the Public Analyst itself, conformed to the standard prescribed for cowmilk and cowmilk Dahi in Schedule B of the Rules and, therefore, no offence had been committed.
3. Prosecution, however, contended that as it was not disclosed whether the Dahi was prepared from cow's milk or buffalo milk, the standard prescribed for buffalo milk as prescribed in Clause A. 11.06 and Clause A 11.01.02 of Schedule B shall apply and, by that standard, the sample was adulterated and an offence has been made out. The learned Magistrate said:
'Now the amendment which requires that any 'dahi' should conform to the standard of dahi from buffalo's milk, unless otherwise declared, became effective only by Govt. Notification D/- 7-12-58. The occurrence is of 4-12-58. The report of the Chemical Examiner shows that if the standard of cow's milk be applied, the dahi is upto the standard. I, therefore, find accused Madhusudan Dey and Nayan Manjuri Dey not guilty of the offence Under Section 16(1)(a), P. F. A. Act and acquit them Under Section 245 (1) Cr. P. C. '
In this order, the learned Magistrate did not consider evidence or come to any finding on the point whether there was any sign board on the shop declaring that only cow's milk and cow-milk products were sold in the shop or whether at the time of taking of the samples, the seller declared that the Dahi was made of cow's milk. Against that order of acquittal, the present appeal has been preferred.
4. The learned Advocate Mr. Mohanlal De appearing for the appellant has raised two points. First. Mr. De argues that the standard prescribed in the Rule, Appendix B, Clause A.11.06, as it stood on December 4, 1958, was:
'Dahi or turd -- (a) Whole milk dahi or curd means the product obtained from fresh whole milk either of cow or buffalo by souring. It shall not contain any ingredient not found in milk, except sucrose and/or gur.
(b) Skimmed milk dahi or curd means the product obtained from skimmed milk either of cow or buffalo by souring. It shall not contain any ingredient not found in milk, except sucrose and or gur.
The standard of purity of dahi or curd shall be the same as prescribed for the milk from which it is derived.'
For the standard of milk that was prescribed, Mr. De refers to Clause A.11-01.01 to A. 11.01.06 in Schedule B. of the Rules. They are in these term:
'A.11.01.01. Cow milk shall contain not less than 3.5 per cent of milk fat, except in Orissa, where it shall be not less than 3 per cent and in Punjab and Pepsu where it shall be not less than 4.0 per cent. The milk solids other than milk fat, shall be not less than 8.5 per cent.
A.11.01.02. Buffalo milk shall contain not less than 5.0 per cent of milk fat except in Delhi, Punjab, Pepsu. Uttar Pradesh, Bihar. West Bengal, Assam, Bombay and Saurashtra where it shall not be less than 6 per cent. The milk solids, other than milk fat. shall be not less than 9 per cent.
A.11.01 03 Goat or Sheep milk fat except in Madhya Pradesh. Punjab. Pepsu, Bombay, Uttar Pradesh and Travancore Cochin where it shall be not less than 3.5 per cent. The milk solids, other than milk fat, shall be not less than 9 per cent.
Where milk, other than skimmed milk, is sold for offered for sale without any indication as to whether it is derived from cow. buffalo, goat, or sheep the standard prescribed for buffalo milk shall apply.'
5. Relying on the second paragraph of Clause A.11.01.03, Mr. De contends that even before Clause A.11.06 was amended on December 9, 1958, the Standard of buffalo milk shall apply, because the Dahi was sold without any indication as to whether it was derived from cow or buffalo milk.
6. The second argument of Mr. Dey is that the amendment in Clause A.11.06 by the Health Minis-try's notification no. F. 14-14(A)/58-PH, dated the 9th December, 1958, (G.S.R. 1211 of 20-12-1958) was only by adding to the old rule a paragraph reading:
'Where dahi or curd, other than skimmed milk dahi is sold or offered for sale without any indication as to whether it is derived from cow or buffalo milk, the standards prescribed for dahi prepared from buffalo milk shall apply.'
This, according to the contention of Mr De, has not brought any change in the substantive law at all and is only a rule of evidence which will operate retrospectively. But that rule of evidence was already there by the effect of the other paragraph in Clause A 11.06 (b) saying:
'The standard of purity of dahi or curd shall be the same as prescribed for the milk from which it is derived.'
According to Mr. De. without the portion added by amendment, second paragraph in Clause A.11.06, which was already existing, attracts the provisions of the second paragraph of Clause A. 11.01.03 reading:
'Where milk, other than skimmed milk, is sold or offered for sale without any indication as to whether it is derived from cow, buffalo, goat, or sheep the standard prescribed for buffalo milk shall apply.'
The result thereby obtained was the same as is now obtaining by effect of the portion of Clause A.11.06 added by amendment in December. 1958.
7. Mr. De, therefore, contends that even without the added portion of Clause A.11.06 the effect in law is the same by operation of the second paragraph of Clause A.11.01.03 and the second paragraph of Clause A.11.06 both of which existed from 1955 and was the Rule operating on December 4, 1958.
8. On behalf of the respondents, Mr. Arun Kumar Mukherjee argued with great ability that the fact that there was an amendment by adding a paragraph to Clause A.11.06 clearly shows that without that paragraph in respect of the standard of curd (Dahi), the second paragraph of Clause A.11.01.03 did not apply. If it did so, then the amendment of Clause A.11.06 would be unnecessary and redundant. Mr. Mukherjee, therefore, argued that the amended portion of Clause A.11.06 which came into force after the material date, that is, December 4, 1958, has brought about a change in the substantive law and is, therefore, not retrospective in its operation and cannot be availed of for judging the standard of the sample taken on December 4, 1958.
9. This question is one of great importance and is also of much academic interest. I had the advantage of hearing the learned Advocate Mr. Alak Gupta, who appeared before me amicus curiae at my request. Mr. Gupta has submitted that the amendment carried out in Clause A.11.06 which came into force only on December 9, 1958, and also the second paragraph of Clause A.11.01.03 which existed before December 4, 1958. both have the look of being rules of evidence but in reality and effect they substitute a presumption for evidence. The real character of those provisions in the Rules, according to Mr. Gupta, is that they are statutory presumptions, though they have been put in the garb of a rule of evidence. Mr. Gupta also goes to the length of contending that those provisions in reality are creating offences, because in the absence of declaration of the source of milk even to sell Dahi, which is in fact made from cow milk and is of good standard cow milk Dahi, is an offence if the standard on analysis is below the standard of buffalo milk. Therefore, Mr. Gupta contends that the amendment in Clause A.11.06 has the character of substantive law and it could not have been intended to be retrospective, because there are no words to bring about that effect. Mr. Gupta also contends that if it is intended to be retrospective then in so far the Rule is creating an offence it should be held to be in excess of he rule-making powers given to the Central Government by Section 23 of the Act in exercise of which authority these Rules have been framed. Jn developing that branch of his contention, Mr. Gupta has referred to the Clause s in Section 23(1) and maintains that only possible clause could be Section 23(1)(b) which reads:
'(b) defining the standards of quality for, and fixing the limits of variability permissible in respect of, any article of food;'
10. According to Mr. Gupta, the statutory presumption creating an offence in effect is neither defining the standard of quality nor is fixing the limits of variability and, therefore, the clauses in the Appendix B with which we are concerned must be held to be ultra vires the Act and are liable to be struck down as such.
11. On the facts of the present case. Mr. Gupta has very cogently analysed the position thus:
(1) If the amendment in Clause A.11.06 is not attracted, there would be no offence in the presenl case, because prosecution has not shown that the curd (Dahi) was not of cows' milk.
(2) If the amendment in Clause A.11.06. is attracted, then there has been no offence if either there was a sign-board in the shop showing that only cows' milk and cow milk product were sold, or it was declared orally at the time of taking the samples that Dahi was made from cows' milk.
(3) Whether the amendment is attracted or not, there would be an offence in the present case if only (a) there was no sign board showing that only cows' milk and cow milk products were sold in the shop and (b) there was no declaration that the curd (Dahi) was made from cows' milk at the time the samples were taken.
12. On consideration of the able arguments of the learned Advocates it appears to me that real effect of the second paragraph of Clause A.11.01.03 which was already there and the added para in Clause A.11.06 is that by these provisions in the Rules, there has been a definition given to milk and curd (Dahi) of undeclared source as milk or Dahi of Buffalo milk. It does no more. By the effect of that definition the standard of Buffalo milk is made applicable to milk or Dahi of undeclared source. If the standard does not conform to that standard as mentioned in Schedule B of the Rules, then an offence has been committed, not being created by the Rules, but by the provision in Section 7 and Section 16 of the Act. The Rule in that particular part is not creating any new offence and cannot be held to be ultra vires the Act.
13. Understood as a definition, that provision in the Rules is not merely a rule of evidence but is really substantive law. This definition, though expressed in the garb of rule of evidence, has the character of statutory presumption substituted by evidence.
14. Mr. Gupta has criticized the manner in which presumption has been substituted for evidence by referring to the passage in Craies on Statute Law, 5th Edition, at page 516. That passage does not express an opinion against validity of such legislation but only notices the trend of 'modern' legislations to substitute presumption for evidence. That trend may be substantially different from principles of legislation that had been adhered to in the past and may cause surprise or irritation in the minds of scholars and theorists steeped in Benthamian ideals. I may mention, that the illustrations cited by Craies as 'modern' are at the present times about 75 years' old. For our purposes, that manner of legislation has been old enough to be accepted as ancient methods that has stood the test of three quarters of a century in the western countries where the trend showed itself in the Eighty's of last century and more than 30 years in India where such legislation began in the early Thirties of this ceniury.
15. I am grateful to Mr. Gupta for the able assistance he has given to me amicus curiae on a difficult question of law which is of wide application. Upon consideration of his incisive analysis, I am unable to accept his contention that the amended portion in Clause A.11.06 (b) and the second paragraph of Clause A.11.01.03 creates new offence, though I accept his contention that the contents of those provisions are unrebuttable presumptions put in the garb of rule of evidence. I hold that being really a definition expressed in the form of a statutory presumption, those particular portions are not adjective law but they have the character of substantive law. In that view, I accept the contention of Mr Gupta that they are not retrospective in operation.
16. Although the paragraph added by amendment to Clause A. 11. 06 will not apply in the present case, because that portion was added after December 4, 1958, which is the date on which the samples of curd were taken, the effect of the second para-graph of Clause A.11.01.03 cannont be avoided in the present case, because that provision has been in the Rule from September 12,1955, when the Rules under Section 23 were first promulgated by S. R. O. 2106 and was attracted into Clause 11.06 by the second paragraph in Clause 11.06 (b) The contention of Mr. Arun Mukherjee was that, in the view I am taking, the portion added to Clause A.11.06 (b) by amendment in 1958 would be redundant if the second paragraph of Clause A.11.01. 03 is read into Clause A.11.06(b) by the effect of second paragraph of that latter Clause , which was always there. In my view, the present third paragraph in Clause A.11.06 (b) has been added only by way of abundant caution, though there was no necessity for it because of the existence of second para-graph in Clause A.11.01.03 of Schedule B of the Rules and second paragraph of Clause 11. 06 (b).
17. The result of this view of law I am taking, when applied to the facts of the present case, is that, if there was no sign-board or there was no declaration regarding the source being cows' milk, then there would be an offence made out. On that question of fact, however, regarding the sign-board or declaration, the learned Magistrate has not considered the evidence and he has not come to any finding. Had it not been for the fact that there have been already two trials in the present case previously and the present trial was the third, it might have been thought necessary to remit the case to the trial court for a finding on that point of fact, But the matter having come to this Court in an Appeal where I had to examine the evidence myself and in view of the several trials that have already taken place, it is only proper in my view to decide in this Court of Appeal the issue of fact upon the evidence on record. 1 proceed to do so.
18. Regarding the existence of sign-board,the Food Inspector P. W. 1. was not asked atall although a suggestion was made to him incross-examination about the oral declaration ofthe accused Madhusudan that only cow's milkand cow-milk product were sold in the shop. Onthe question regarding the declaration about thesource of the milk from which the particularDahi was prepared, P. W. 1 had stated in examination-in-chief:
'The accused, on being asked, staled that as he purchased the milk from elsewhere he could not say if the 'dahi' was prepared from cow milk or buffalo milk.'
This evidence of P. W. 1 was not challenged in his cross-examination. P. W. 2 said in examination in chief:
'P. W. 1 asked the accused Madhusudan Dey who was in the shop if the dahi was of cow's milk or buffalo's milk. The accused could not reply.'
This evidence of P. W. 2 was not challenged in his cross-examination though it was suggested to this witness about the existence of a sign-board outside the shop to the effect that only cows' milk or cow-milk product were sold there. P. W. 1 was examined and cross-examined on August 24, 1960, and P. W. 2 was examined and cross-examined on January 16, 1962.
19. The two defence witnesses, were examined on April 16, 1962. D. W. 1 deposed that not only Madhusudan made a declaration but there Was a sign board in front of the shop declaring that cow's milk and cow-milk products were sold in the shop. D. W. 2, however, does not speak of any sign-board but only speaks about the oral declaration of Madhusudan that the curd was made of cows' milk. This goes to show that story of a sign-board is an after thought introduced for the first time in 1962. I hold that story to be untrue.
20. One document is of particular value being the receipt, Ext. 3, which the accused Madhusudan himself wrote and gave to the Food Inspector at he time when the sample was being taken. That receipt mentions only Dahi (curd) but does not mention the source of the milk from which it has been prepared. That document considerably weakens the defence case that there had been a declaration made by accused Madhusudan about the source of the milk from which curd had been prepared. If there was in fact any such declaration, one could only expect that the source of the milk from which curd has been prepared would be mentioned in the receipt, Ext. 3. Conscious of that weakness on behalf of the defence, it was suggested to P.W. 1 that the receipt had been written at his dictation which suggestion was denied by that witness by saying:
'The accused wrote the receipt under my direction and not at my dictation.'
That suggestion was made also to P.W. 2 and that witness also denied that suggestion. D.W.1 in his examination-in-chief did not say about the receipt Ext. 3, being dictated by P. W. 1. But in cross-examination he said:
'The seizure list was drawn up. Only 'dahi' was written on the seizure list. The accused Madhusudan signed it.'
Then only this witness volunteered and said:
'Accused Madhusudan wanted curd from cow's milk to be written, but P.W. 1 told that it was not necessary.'
It is to be noticed that he spoke of the 'seizure list' by which he may have meant Ext.2. the notice by Food Inspector to the accused persons, and not the receipt, Ext. 3, which was written by accused Madhusudan by his own hand. In that state of evidence. I am satisfied that there was no sign-board on the shop saying that only cow's milk and cow-milk products were sold in that shop nor there was any declaration by accused Madhusudan at the time the samples were taken that the Dahi had been prepared from cow-milk. I accept the truth of the testimony of P. Ws. 1 and 2 that at the time of taking the samples, P.W.I questioned the seller about the source of the milk but the seller Madhusudan could not mention whether the source was cow-milk or buffalo-milk. As a result, therefore, both the accused persons must be held guilty of an offence under Section 7 read with Section 16(1)(a) of the Prevention of Food Adulteration Act.
21. As regards the punishment, taking into consideration the fact that, in this case, adulteration of Dahi was only by deficiency in fat which reduces the food value but is not injurious to health and in view of the suffering undergone by the accused persons during the three trials that have been held in this case and also of the fact that it concerns Dahi that had been sold as long ago as December, 1958, I sentence each of the accused persons to pay a fine of Rs. 25/-, in default, to undergo simple imprisonment for two weeks.
22. The appeal is allowed.