PREM DAS Vs. STATE

JUDGEMENT

(1.) The applicant challenges his conviction under Section 16 of the Prevention of Food Adulteration Act and the sentence imposed thereunder. In the connected revisions the applicants challenge their convictions under the same provision and the sentences imposed thereunder. It has been found as a matter of faet that" the applicant sold a mixture of buffalo milk and cow milk, a sample of which was taken by an Inspector and sent for chemical analysis. The public analyst reported that the sample contained 5,9 per cent milk fats and 7.0 per cent non-fatty solid and that it contained 7.20 per cent added water. He treated the sample as if the two kinds of milk were mixed in equal proportions. It is on the basis of this report of the public analyst that the sample has been found by the court below to be adulterated and the applicant has been convicted under Section 16 of the Act for infringement of provisions of Section 7, which prohibits sale of adulterated food. The case against the applicant was tried as a summons case and after the complaint made by the Inspector was read over to him ho was asked to plead and he pleaded guilty. Previous to the conviction in this case he had been convicted for another offence under the same Act; he had submitted himself to the conviction and the sentence. On account of the previous conviction he has been sentenced under Section 16(1)(ii) as for a second offence.

(2.) The first question that arises is whether it has been proved that the milk that the applicant sold was adulterated or not. An article of food becomes an adulterated article of food in various ways mentioned in Section 2 (i) of the Act. For instance, if its quality or purity falls below the prescribed standard, or if its constituents represent any quantities which are in excess of the prescribed limits of variability, or if any inferior or cheaper substance has been substituted wholly or in part or it so as to affect injuriously its nature, substance or quality it is adulterated. Before one deals with the question whether there is adulteration or not one must decide what is the article that is under consideration. In this case the article under consideration is a mixture of buffalo milk and cow milk; the applicant admittedly sold it as a mixture of cow milk and buffalo milk; he did not profess to sell pure buffalo milk or pure cow milk. He would be guilty of infringement of Section 7 only if he sold the mixture in an adulterated condition, i.e. if the quality or purity of the mixture fell below the prescribed standard, or if any inferior or cheaper substance had been substituted in it wholly Or in part so as to affect injuriously its nature, substance or quality. Merely because it is a mixture it does not become an adulterated article. If he sold it as buffalo milk it can be said to be adulterated because it was mixed with cow milk which is inferior to, or cheaper than, buffalo milk. But he sold it as a mixture, and in order to commit the offence of adulteration he must have adulterated the mixture with something inferior or cheaper or injurious.

(3.) The mixture, as such, would be adulterated if its quality or purity fell below the prescribed standard, or if for it any cheaper substance was substituted or if it was not of the nature, substance or quality demanded by the purchaser and was to his prejudice, or was not of the nature, substance or quality which it purported or was represented to be. If the proportion of buffalo milk and cow milk was 1 : 2 but the applicant represented that it was half and halt it could be said to be adulterated because it was not of the nature, substance or qua-lity which it was represented to be. Neither in this case nor in any of the connected cases has the milk been found to be adulterated on this ground. In this case there is no evidence of the proportion in which buffalo milk and cow milk were mixed together, in some of the connected cases the accused represented that the two kinds of milk were mixed in a certain proportion but it has not teen found on, analysis that they were not mixed in that proportion. Nor is it the case in any of the Revision applications that the applicant sold the mixture when the customer demanded buffalo milk, or that any injurious article was mixed with it. All the applicants have been convicted on the ground that the milk did not conform to the prescribed standard. The standards for the two kinds of milk are prescribed in appendix B to the Rules framed by the Central Government in exercise of the powers conferred by Section 23 of the Act. Section 23 (1) (b) authorises the Central Government to make rules defining the standard of quality for, and fixing limits of variability permissible in respect of any article of food. Rules A.11.01 etc. state the standards prescribed for milk and milk products. Rule A.11.01 simply defines "milk''. Rule A.11.01.01 prescribes standards for cow milk; every sample of cow milk in U. P. must contain not less than 3.5 per cent of milk fats and not less than 8.5 per cent non-fatty solids. The standards prescribed for buffalo milk in U. P. in R. A.11.01.02 are that it must contain not less than 6 per cent of milk fats and not less than 9 per cent of non-fatty solid. It is to be noticed that the standards prescribed under the rules are only in respect of milk fats and non-fatty solids and not in respect of water. A sample of milk will be deemed to be adulterated if the milk fats are less than the prescribed minimum or if the non-fatty solids are less than the prescribed minimum; no maximum for water is prescribed at all and whether milk is adulterated within the meaning of Section 2 (i) (1) or not does not at all depend or the quantity of water. Rule 44 of the Rules prohibits sale of "milk which contains any added water"; therefore sale of milk, to which water has been added, is an offence punishable under Section 16 (1) (a), regardless of the question of adulteration. If a person is accused of selling milk with added water in contravention of Rule 44 it will be necessary to prove that water was added to milk that was being sold, and this can be done either by direct evidence of an eye-witness, or by thhe evidence of an expert, who, on chemical analysis, finds that water has been added. When however a person is prosecuted not for infringement of Rule 44 but for infringement of Section 7, which prohibits sale of adulterated food, the question is whe-ther the article of food is adulterated or not. Again, it can be proved to be adulterated by showing that water, which is an inferior and cheaper substance than milk, is added to it and the addition is to the prejudice of the purchaser, and this would require direct evidence of a witness who has seen water being added or an expert opinion to the effect that water has been added. Adulteration can also be proved by showing that the quality or purity falls below the prescribed standard, and usually adulteration is sought to be proved in this manner. In this and other cases milk is sought to be proved to be adulterated not on the ground that water has been added but on the ground that its quality and purity falls below the prescribed standards. In such a case the public analyst has only to consider the standards prescribed in Rules A.11.01 etc. and should not go out of his way to find the percentage of added water. It is not known that he can find the percentage of added water independently of the quantities of the milk fats and non-fatty solids found present in the milk analysed by him. Presumably he finds the quantity of water only by deducting the quantities of milk fats and non-fatty solids from the weight of the sample analysed by him. If so, it is quite useless because his finding that the milk fats, or the non-fatty solids, or both are less than the prescribed minimum itself is enough for holding that the milk is adulterated, and it is mere repetition to say that it is adulterated because water has been added to it. Unless he can find the quantity of added water without determining the quantities of the milk fats and the non-fatty solids, he should not state anything about added water in his report.