(1.) Vakil Uddin has come up in revision against the judgment of the III Additional Sessions Judge, Agra, dated 22nd of Jan., 1980 upholding the judgment of the Additional Chief Judicial Magistrate, Agra dated 9th of Jan., 1979 convicting him for an offence under Sec. 16(1) of the Prevention of Food Adulteration Act and sentencing him to rigorous imprisonment for one year and to a fine of Rs. 1000.00.
(2.) On 27th of Nov., 1975 the applicant was found selling milk. The Inspector appointed under the Prevention of Food Adulteration Act, hereinafter referred to as the Act, took a sample of that milk which he was informed was a mixture of cow, buffalo and goat milk and after performing due formalities he sent the same for examination by Public Analyst. The Public Analyst, vide his report dated 25th of April, 1978, reported that the analysis of the sample sent to him showed the milk fat in the sample as 3.5% and its milk solids non-fats as 6.3%. He found that the sample of mixed milk was adulterated as its quality fell below the prescribed standard. The certificate of the Public Analyst further showed that he had tested the sample as of milk of cow and buffalo. The Additional Chief Judicial Magistrate who tried the applicant accepted the evidence produced on behalf of the prosecution and convicted the applicant for an offence under Sec. 16(1) of the Act. In appeal various submissions were raised on behalf of the appellant and all of them were rejected by the appellate court. As the learned counsel for the applicant has not attempted to show that any of the contentions raised by him before the appellate court was strongly rejected, it is not necessary for me to notice the same. He supported this revision application on a ground which was not urged by him before the appellate court.
(3.) In support of his application, learned counsel for the applicant contended that right till the year 1979, Item No. A.11.01.11 of Appendix B to the Prevention of Food Adulteration Rules, 1955 merely prescribed standard for buffalo milk, cow milk and goat milk. It did not specify any : standard for mixed milk of buffalo, cow and goat. The mixed milk sold by the applicant could not be tested on the basis of standards prescribed for either buffalo milk, or cow milk or goat milk in Item No. A.11.01.11 of Appendix B. As no standard for such mixed milk had been prescribed, it was not possible to hold that the sample of milk was adulterated as its I quality fell below the prescribed standard and the same could not be held to / be adulterated on that ground. I find that this lacuna has been filled in the & year, 1979 when by means of notification No. GSR 55(E) dated 31-1-1979 the ' standard for mixed milk was also prescribed vide Item No. A.l 1.01.11 Appendix B. Under this the minimum percentage of milk fat and the milk ; solids non-fat for mixed milk were specified as 4.5% and 8.5% respectively on ; all India basis. As on the relevant date no standard for mixed buffalo, cow i and goat milk has been prescribed, no question of the sample taken from the \ applicant being adulterated for the reason that its quality fell below the ' prescribed standard arose. The sample of milk taken from the applicant has ; not been found to be adulterated for any other reason. In the circumstances i it is not possible to sustain the conviction of the applicant for an offence under section 16(1) of the Act.