MUNICIPAL BOARD, ETAWAH Vs. STATE

JUDGEMENT

(1.) This appeal has been filed by Municipal Board, Etawah against the acquittal of respondent Nirbhai Singh under Sec. 7 read with section 16 of the Prevention of Food Adulteration Act.

(2.) It appears that on 28th May, 1974 Sri Krishna Swarup Saxena, Food Inspector, had found the respondent selling goats milk. Sri Krishna Swarup Saxena purchased 660 ml. milk after paying its price and after giving him the notice of his being the Food Inspector. He sealed the samples in three different phials. He sent one of them to the Public Analyst, who found on analysis fat 5.1% and non-fatty solids 8.1%. The total of fatty and non-fatty solids exceeded the required prescribed standard of 12%. The respondent was acquitted by the court below.

(3.) It is contended in appeal on behalf of the Municipal Board, Etawah that since the non-fatty solids in sample were found deficient by 10%, the appellant was liable to be convicted and could not be acquitted by the court below. In support of his contention the learned counsel for the appellant has cited a Division Bench case, State Vs. Azimulla, 1981 (1) FAC 22 . In that case the non-fatty solids were found deficient by about 20%. The Division Bench held that if there was deficiency even in non-fatty solids, the milk was found below the prescribed standard and it has been held to be adulterated. A similar view was taken by a single Judge of our own Highl Court in Megh Singh Vs. State, 1979 (1) FAC 59 . On behalf of the respondent reliance has been placed on Rajan Lal Vs. State, 1976 (I) FAC 125 . in that case it was held relying on the Supreme Court case, Malwa Co-operative Mill Union Limited Vs. Bihari Lal, 1973 FAC 375 that where the quality or purity of food fell only marginally below the prescribed standard the order of acquittal should not have been set aside. It was also held in that case that where the aggregate quantity of fat and non-fatty contents was 13.6 per cent while the aggregate required under the rules was 12.9 per cent, the deficiency in the mixture of non-fatty solid contents may have been due to the error o: Analyst. In Criminal Revision No. 2041 of 1972, Pooran Vs. State , the Division Bench of High Court consisting of Honble S. Malik, J. and Honble J.P. Chaturvedi, J. held that the Public Analyst could not give any example by which non-fatty solids could be reduced without disturbing the fat content and the only example he could think of was by extracting cream from mill: and then adding one and a half times water to the cream. This statement could not be accepted. The report in such circumstances was held to be unreliable and the conviction of the appellant was set aside, In the instant case it was goats milk. Its required standard is 3.5 per cent fat and non] fatty solids 9 per cent. The fat found in this case was 5.1 per cent which exceeded more than 45 per cent while in the non-fatty solids the deficiency was only of 10 per cent. It is, therefore, clearly marginal deficiency but oi the aggregate of fat and non-fatty solids the total exceeds the required 12 percent. In such circumstances 1 do not think that the respondent can be convicted of the offence under Sec. 7 read with Sec. 16 of the Prevention of Food Adulteration Act.