C.B. Capoor, J.C.
1. This appeal by special leave is directed against an order of the learned Sessions Judge Mandi whereby respondent No. 1 was acquitted on appeal of an offence under Section 16 of the Prevention of Food Adulteration Act, 1954.
2. Respondent No. 1 carried on business as a confectioner at Mandi. On 27.11.1959 his shop was visited by Shri Dharam Lal, Food Inspector, Municipal Committee, Mandi, and a sample of milk was taken for analysis. 24 ounces of milk was purchased by the aforesaid Inspector and was equally distributed in three phials which were sealed. One of the phials was handed over to respondent No. 1 and of the remaining two one was sent to the Public Analyst Ambala and as a result of analysis it was found to Be adulterated with 7 per cent added water. According to the Public Analyst the sample contained 6.1 per cent milk fat and 8.4 per cent non-fatty solids.
3. Respondent No. 1 pleaded to be not guilty to the charge laid against him and alleged that die Food Inspector had tested the milk with lactometer and declared it to be all right. It was further pleaded that the milk purchased by the Inspector was put into two phials only. The learned Magistrate accepted the prosecution case and convicted, respondent No. 1 of the offence with which he was charged and sentenced him to pay a fine of Rs. 100/- and in default to undergo simple imprisonment for one month. Respondent No. 1 preferred an appeal against the order of conviction and sentence which was accepted by the learned Sessions Judge mainly relying upon the ruling of the Allahabad High Court reported in : AIR1960All504 , Municipal Board, Kanpur v. Badloo.
4. In the aforesaid case as a result of analysis by the Public Analyst the sample was found to contain 4.8 per cent fat, 7.4 per cent non-fatty solids and 15 per cent added water. According to rules applicable to Uttar Pradesh buffalo milk is to contains not less than 6 per cent milk fat and not less than 9 per cent solids other than milk fat whereas cows milk shall not contain less than 3.5 per cent milk fat and not less than 9 per cent milk solids other than milk fats.
S.N. Dwivedi, J., assigned two reasons for upholding the order of acquittal recorded by the trial Court. (1) That there was nothing to indicate as to whether the sample was of cow milk or of buffalo milk and the rules did not provide any standard of, quality for mixed, cow and buffalo milk. (2) That the report of the Public Analyst that there was 15 per cent of added water did not correspond with the other data that the sample contained 4.8 per cent fat and 7.4 per cent non-fatty solids. The reasoning of the learned Judge is to be found in the following portion of the order:
According to the Public Analyst the sample contained 4.8 per cent fat and 7.4 per cent non-fatty solids. The aggregate of fat and non-fatty solids was 12.2 per cent and hence the quantity of water in the sample was 87.8 per cent. Water was therefore in excess by 1.3 per cent. It is difficult to reconcile with this calculation the opinion of the Public Analyst that the sample contained about 15 per cent of added water, The report of the Public Analyst can therefore have little probative value and it will be unsafe to hold on its basis that the respondent is guilty of contravening the provisions of Rule 44(b).
5. The aforesaid reasoning appealed to the learned Sessions Judge and he made the following observations:
In the present case also the calculations show that the water content in the sample was 85.5 per cent. This calculation does not tally with the report of the Public Analyst that there was 7 per cent added water in the sample.
6. The aforesaid Allahabad ruling was considered by a Full Bench of that Court in the case of Prem Das v. State, reported in : AIR1961All590 (FB), and was overruled and it was held that a sample of milk will be deemed to be adulterated if either the milk fats or the non-fatty solids be less than the prescribed minimum, that no maximum for water is prescribed and the question as to whether milk is adulterated or not does not at all depend on the quantity of water, I am in respectful agreement with that view.
7. In the instant case the percentage of non-fatty solids found in the sample was less than the prescribed minimum for buffalo milk. According to paragraph A. 11.01.03 of Appendix B to the Prevention of Food Adulteration Rules, 1955, 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 and the Public Analyst was thus quite justified in applying the standard of quality of buffalo milk to the sample in. question. Since as a result of analysis the sample was found to contain less than the prescribed minimum of non-fatty solids it would be deemed to be adulterated provided the analysis did not suffer from any defect.
8. It has been urged on behalf of the respondent that the sample was analysed by the Public Analyst after about 21 days and as the certificate did not indicate that during the interval the sample had not undergone a change as to affect its composition the sample could not be held to be adulterated and no conviction could be based on the result of the analysis.
In support of that contention reliance was placed upon a decision of the Nagpur High Court Dattappa Mahadappa v. Secretary, Municipal Committee, Buldana, reported in AIR 1951 Nag 191. In the aforesaid case the sample was analysed by the analyst a week alter it was taken and the report of the Public Analyst did not contain a certificate that at the time of analysis the sample had not undergone such a change as to affect its composition.
On behalf of the appellant reliance was placed upon extracts from the book 'Milk.Production and Control' by Harvey and Hill. According to those extracts acid producing organism caused an alteration in the character of milk which ends in putrefaction. It has been emphasized in that book that milk should be tested as soon after the sample is taken as possible.
Mudholkar, J., concluded that if milk is kept in its natural condition for some time its fats and non-fatty content would be reduced and that the mere fact that fat and non-fatty solids in any given sample of milk are below those prescribed does not lead to the inevitable inference of adulteration. The aforesaid case was under the C.P. and Berar Prevention of Adulteration Act.
The decision, however, rests on general! principles regarding the decomposition of milk and not on any provisions of law peculiar to the aforesaid aid Act. The ratio und relying the aforesaid decision may as well apply to the Central Prevention of Food Adulteration Act.
I also find that the Form III under Appendix 'A' to that Act does not specifically provide that the Public Analyst should certify that the sample had not undergone such a change as to affect the content of the fat or non-fatty solids but that by itself will not be a ground for accepting the report of the Public Analyst when it is known that if a sample is not analysed soon after it is taken its contents undergo a change. If is expected that the sample should be analysed soon after it is received in the office of the Public Analyst and if that is not done there must be a certificate that (the contents thereof had not undergone such a change as to affect its composition. I am, therefore, of the opinion that in the absence of a certificate to the above effect a conviction cannot be based merely on the report of the Public Analyst.
9. In this view of the matter it is not necessary to express any opinion on the other contentions raised on behalf of the respondent that the milk could not be said to be adulterated as on being tested with the help of lactometer it was found to be all right.
10. I, therefore, uphold the order of the learned Sessions Judge though on a ground different from the one assigned by him.
11. The appeal is in consequence dismissed.