K.K. Mitra, J.
1. This is an appeal against the order passed by a Presidency Magistrate convicting the appellant under Sections 16(1)(a)(i)/7(1) of the Prevention of Food Adulteration Act of 1954.
2. The prosecution case is that on June 3. 1968 the Food Inspector of the Corporation of Calcutta visited a shop in the name and style of 'Bengal Trading Corporation situated at 6-A' Nabin Sirkar Lane, The appellant who is the sole proprietor of the concern was present. There was also a seller present at the shop. The Inspector purchased three closed bottles containing food having inscription on the bottle as 'Betraco Milk Food/Betraco Baby Food (Cow's dried milk for babies and infants)' as sample for analysis being suspicious about the purity of the food product. He gave notice in writing to the seller Barun Kumar Basu. He sent one of the bottles to the Public. Analyst for analysis and report. He handed over one bottle to the seller Barun Kumar Basu and he kept the third bottle with him for future reference. The Food Inspector observed all the formalities enjoined under the Prevention of Food Adulteration Act (hereinafter referred to as the Act) and the rules made thereunder' in taking the sample and gave notice in Form VI of which a copy was received by the seller Barun Kumar Basu who appended his signature on it. The Public Analyst after analysis submitted his report on the basis of the date supplied in the report that the sttQlPle was adulterated as it did hot conform to the standard for dried milk to be used as infant food and also that there was no declaration given on the printed label affixed to the bottle of baby food as to whether it was roller-dried or spray-dried along with the date before which the content should be used as required under the Act and the rules made thereunder.
3. The Food Inspector after obtaning necessary sanction from the Cor-poration Health Officer filed the complaint.
4. The defence is a plea of in-nocence. It is contended by the de-i fence that the food in question was manufactured with skimmed milk and that the opinion formed by the Public Analyst that the article of food was adulterated is wrong on that account, It is also challenged that the process of analysis adopted for determining iron contents was wrong and unscientific leading to inaccurate result. The learn-ed Magistrate accepted the prosecution case and convicted the appellant as Stated before.
5. There is no controversy on the point that the food inspector had taken as sample three bottles containing baby food fromthe a shop of which the appellant was the proprietor after observe of the prescribed rules. Rule 12 provides that the Food Inspector takes a sample for the pur[pose of analysis he shall intimate such purpose from whom' he takes the sample Ext. 1 shows that a copy of Form VI written by P.W. 1 A. B. Roy had been duly given to B. K. Basu. the seller, in presence of witness No 3 Sishir Kumar Ghosh. In describing the details of the food the Food Inspector gave the description as Betraco Milk Fopd/Betraco Baby Food fCows dried milk to be used for babies and infants) . It is. however, admitted by P.W. 3 in cross-examination that there was also a declaration appearing in the printed label of the bottle that the Product was defatted. The cover of the bottle was also produced in cross-examination be-fore the Food Inspector and he admit-ted that such cover was on the bottle of the sample purchased by him and the label is marked Ext. A. There remains therefore no doubt on the point that the article of food though a baby food was described by the manufacturer, that is, the appellant in the label attached to the bottle itself that it was prepared from defatted cows milk.
6. Mr. Basu had argued that the appellant was present at the time the sample was taken and when the seller received the copy of the document in Form VI he should have mentioned about the incorrectness of the descrip- tion of the article of food at that time and so the defence that the milk pre duct was manufactured from defatted milk cannot be taken. Rule 12 under which Form No. VI is made is for the purpose of giving intimation to the sel- ier that the sample was being taken for the purpose of analysis and therefore the seller has not always a duty to raise any such objection at the time of receiving the copy of the document in Form No. VI. particularly when thy bottIe wih the printed label on it i seized.
7. It becomes necessary for the court to determine the question of adul- teration with due regards to the nature of the article of food token as sample and the result of analysis done by the Public Analyst. P.W. 2. the assistant Public Analyst, had carried on the analysis of the sample under the supervi- sion of the Public Analyst who wa examined as a court witness. He proved the report submitted by him (Ext 5). He admitted that there is different between the whole milk and skimmed milk and also that if there was defatted the food could not be taken as whole milk and the term 'skimmed milk' becomes appropriate. It appears however, that the Food Inspector while sending the sample to the Public analyst and giving details of the article of food did not mention the important fact that the article of food described as a baby food was prepared from milk which had been defatted that is. skimmed.
8. The word 'adulterated' had been defined in SecUon 2 of the Act and it enuinerates the different circumstan- ces when an article of food must be deemed to be adulterated which are tweive in number. The case here Is tnat the erticle of food is adulterated as the quaiitv or purity of the articie falls below the prescribed standard or its constituents are present in quanti- ties which are in fiXcess of Drescribed limit of variabmty as provided in Section 2(1)(1) of the Act. The report of the Public Analyst supplies the data obtained by the result of his analysis ,of the articie of food submitted to him for anaiysiS. Under Section 13(5) of the Act the rePort may be used as evi- d?nce of faCts stated therein in any pro- ceeding under this Act. It is well-set- tied that the report need not contain the mode or particulars of analysis nor the test applied thereto and the report does not become defective for non-menMbn of those particulars. This view about the value of the report of the Public Analyst had been stated uniformly in ti large number of cases and there is a recent Supreme Court decision on the point as given in : 1970CriLJ492 . (Dhian Singh y. Municipal Board. Saharanpur). In this case the report of the Public Analyst is challenged by the defence only with reference to the data as to percentage of iron contents said to have been found in the article of food and not on other grounds.
9. Rule 5 gives the definition and standards of quality of various articles of food as specified in appendix B of the rules and milk and milk products of various kinds are dealt with under the heading 'A. 11' in appendix B. Under the heading of A. 11 the standards necessary to maintain purity had been given for different kinds of milk as cow milk, buffalo milk, goat milk or sheep milk as well as for skimmed milk, butter milk, tonned milk, double tanned milk, condensed skimmed' milk dry skimmed milk and various kinds of milk products as dahi or curd, butter and chhana.
10. Apparently, baby food is a special preparation of an article of food useable as infant food and in A. 11.10.04 is described the standard of quality. The description as dried milk to be used as infant food which obviously in popular use may be described as baby food had been applied by the Public Analyst in respect to the sample sent to him giving rise to an opinion after analysis that it was adulterated. Infant food of the description and variety for which the standard had been laid down in A.ll. 10.04 gives the limits' of trie different standards as follows:
(a) Moisture Not more than 3.5%
(b) Total milk proteins not less than 20.0%
(c) Total Carbohydrates (including
sucrose, dextrose and dextrines,
mabtose or lactose) not less than 35.0%
(d) Total ash not more than 8.5%
(e) Ash insoluble in HCL not more than 0.01%
(f) Milk fat 18.0 to 28.0%
(g) Solubility index not less than 85.0 (if roller dried) and
not less than 98.5 (if spray-dried).
(h) Vitamin 'A' not less than 1,500 I. U. per 100 grams
(i) Iron (as Fe) not less than 4.0 mg. per 100 grams
(j) Bacterial Count per g. not more than 50,000.
The sample analysed by the Public Analyst was found to conform to all these standards and tests except that milk fat was found to be .82 per cent and iron contained as 2.9 mg. per 100 grams.
11. The baby food in question Was declared and described as prepared from skimmed milk and thus the percentage of fat contained was found so low.
12. In A. 11.02 skimmed milk has been described to mean milk from which all or most of the milk fat had been removed toy mechanical or any other process. Skimmed milk is not an adulterated food and nobody is prohibited to sell or distribute or store or manufacture for sale skimmed milk. Skimmed milk is a milk product from which all or most of the milk fat had been removed. Under milk and milk products as described in Schedule B, A. 11 different standards had been laid down for various items e. g, whole milk, dahi or eurd and skimmed milk dahi or curd, ehhana and skimmed milk chhana condensed milk and condensed skimmed milk, dried whole milk that is powdered milk and dried skimmed milk, that is powdered skimmed milk. It is appar from the standards that whenever standard had been laid down for a particular kind of skimmed milk product there was no mention of milk fat being present as a constituent to be found in it for ensuring the prescribed standard. There is also nothing to indicate that skimmed milk or skimmed milk powder cannot be used as the basic material for the preparation of baby food. It is. of course, an offence if one sells skimmed (fat abstracted) described it as milk as provided in Rule 44 (d). But. in the instant case, the label attached to the bottle was a clear indication of: the description that it was prepared from skimmed milk and therefore it was useless to expect any such percentage of milk fat in it as prescribed in A.ll. 10.04. There is no standard laid down under the Act for dried milk to be used as baby food having skimmed milk or powdered skimmed milk as the basic material used in the preparation of the same. Even in the amended rules which came into force in July. 1968 while appendix B in respect to milk and milk product given under the general heading of A.ll had been made considerably elaborate and more descriptive and containing larger number of varities of milk product, there was no standard laid down for such kind of baby food. While the standard for dried milk to be used as infant food had been given under the old rules in A. 11, 10.04, the standard for the milk product described as infant milk food had been given under A. 11.02.18 under the present rules and it appears that the standards are almost the same except some variation in moisture contents. But, at the same time, under the present rules in prescribing the standard for infant milk food some idea about the mode of preparation of such article of food popularly called as baby food from which a sort of beverage meant for the infants is prepared is stated to mean a product obtained by drying milk with the addition of specific carbohydrates (cane sugar, dextrose and detrines. maltose or lactose) and salts and vitamins. Thus baby milk food or infant milk food contains apart from dried milk gome other materials of specific carbohydrates, salts and vitamins presumably to promote health and nutrition of infants. But then these additions of carbohydrates, vitamins and salts have been limited by the standards of percentage for vitamin, carbohydrates and also iron contents presumably obtained from the addition of salts. It is to be noted that the percentage of milk fat is prescribed to be not less than 26% in dried whole milk (A. 11.10.01) while such percentage in infant food has been brought down to be not less than 18 per cent. (A.ll. 10.04). Naturally such item as in A.ll. 10.04 as in old rules or in A.ll. 02.18 under the new rules was not related to baby food prepared with skimmed milk.
13. The simple question here is whether baby food prepared from skimmed milk powder must be deemed as adulterated in the absence of any standard being preserved in appendix B under the heading of milk and milk product for such article of food. There is no doubt that skimmed milk and skimmed milk powder are not articles of food deemed as adulterated. There is no reason to think in the absence of any evidence that infant food or baby food prepared with skimmed milk powder as the basic material would in spite be deemed as adulterated. The word 'adulterated' has been given an artificial meaning in the Act and in order to maintain the purity or quality of the article of food definite standards had been prescribed so that the constituents are limited in variability to a particular percentage of quantities. It would be futile for the Court to find out or determine what should be the standard to ensure purity and quality for a particular article of food which is not a basic article of food or a food product but a food preparation which is made from skimmed milk used as the basic material. The Public Analyst in giving his opinion after analysis of the sample was misled by the description of the sample wherein the description was given as 'Betraco Milk Food /Betraco Baby Food (Cow's dried milk for babies and infants)' without it being mentioned that it was prepared from skimmed milk. But then the bottle containing the milk product having the printed label attached to it 'would have at once indicated that the baby food was prepared from defatted and dried cow's milk.
14. Mr. Bose for the Corporation urged that even though no standard had been specifically prescribed in appendix B for infant food prepared from skimmed milk the particular articles of food described in Appendix B are not exhaustive and therefore an article of food may be deemed to be adulterated even though no standard is laid down in Appendix B for such article. In support of that contention he cited a single bench decision of this Court reported in (1968) Cri LJ 1532 (Cal). (Corpn. of Calcutta v. Sankar Trading Co.). The fact of this case has no manner of application to the present case. In that case the accused sold ajooan which- was found by the Public Analyst to be mixed with dirty and sandy materials and therefore it was found to be adulterated under the definition given in Section 2(1)(a) of the Act which provides that an article of food being not of the nature, substance or quality s represented to be on demand by the purchaser is deemed adulterated. Here neither the seller made any such assertion that the article of baby food was not prepared from skimmed milk nor did the Food Inspector demand such baby food as not prepared from skimmed milk and therefore there is no scope for considering the provision in Section 2(1)(a) of the Act in deciding the question as to whether the article of food is adulterated or not.. To my mind it appears that baby food is, not a direct milk product but that it is1 a milk preparation having additions of sweetening carbohydrates, vitamins and salts. In that view baby food is not a direct milk product and even though for curd and chhana different standards had been prescribed for the products made from skimmed milk or whole milk and none such for butter, it cannot be said that there w.as any prohibition against manufacturing a milk preparation of baby food with skimmed milk. It wlould be futile for me to find out a standard of my own after consideration of the different standards laid down under A 11 in Appendix B of the rules for skimmed milk product and apply the same in infant food having skimmed milk powder as the basic material by the construction of a formula of data of my own and come to a finding if the article of food sold was adulterated or not. The question whether the list of articles of food for which standard had been laid down in Appendix B is exhaustive or not will depend on the circumstances of each case. If there be materials to draw a clear analogy between the article of food in question and the article of food for which standard has been prescribed in Appendix B the nomenclature of article of food sold will not always be a deciding factor. In the case reported in AIR 1960 Bom 243 : 1960 Cri LJ 803 (FB), (Sadashib Tatoba Gatade v. The State) the question arose whether butter prepared from curds was butter within the meaning of the expression butter given in A. 11.05. It was stated in that judgment that the process by which an article is prepared is not always a criterion to restrict the interpretation of the statutory meaning attached to the word 'butter' which was meant to be the product prepared exclusively from milk cream or. curd. Obviously the mode of preparation is not always a deciding factor in determining the question of adulteration in respect to an article of food for which a standard had been laid down. But in this case there is no standard laid down for baby food prepared from skimmed milk powder and the fact remains that skimmed milk powder is not an article of food deemed adulterated and there is no prohibition of sale of skimmed milk powder as the basic material which may be used for preparation of such baby food as used by the infants.
15. As there is no standard laid down in Appendix B for this particular article of food and as it is impossible to determine with the materials before me as to what should be the limits of the standards of the constituents, the food in question cannot be deemed as adulterated. The defence had examined Dr. A. N. Saha. Reader in Applied Chemistry. Calcutta University to challenge the result of analysis of the Public Analyst. It was urged that the test applied by the Public Analyst in determining the proportion of iron contents / was not scientifically correct. It is not necessary to enter into that question when for the reasons given above I find that the food is not adulterated as the analysis done by the Public Analyst was done without considering that the basic substance in the baby food was skimmed milk and that no standard had been laid down for baby food prepared from skimmed milk and there is no prohibition against preparation of baby food or infant food having skimmed milk as the basic constituent.
16. The appeal, is therefore, allowed. The conviction of the appellant under Section 16(1)(a)(i)/7(1) of the Prevention of Food Adulteration Act and the sentence passed therein be set aside. The fine, if paid, be refunded.
17. The appeal being allowed, there is no question of enhancement of sentence and the rule (in Rev. Case No. 376/70) stands discharged. The seized bottles, if available be returned to the appellant.