HALKE Vs. STATE OF U.P.

JUDGEMENT

(1.) Halke has filed this revision against his conviction under Sec. 7/16 of the Prevention of Food Adulteration Act. On 5-8-1977, the Food Inspector in the morning took a sample of milk from the applicants possession. It was a mixture of goat milk and cow milk. The sample was found to be deficient in fat content by 2 per cent and in non-fatty solids by 21 per cent. Both the courts below recorded a finding that the sample was adulterated and the applicant was, therefore, convicted and sentenced as mentioned above.

(2.) The only legal point which was raised in this revision was that the sample was wrongly judged by the Public Analyst. As already noted, admittedly it was a mixture of cow milk and goat milk. The Public Analyst has judged the sample with reference to the standard given in the Act in respect of mixed milk. On this point will only say that the prescribed standard of fat in cow milk is 3.5 and the same standard of fat is prescribed for goat milk. Now, therefore, if it is a mixture of cow milk and goat milk it is obvious that the fat content should not and cannot exceed 3.5. The prescribed standard of mixed milk should be applied only to those cases where it is not known what type of mixture it is. But when it is known that it is a mixture of cow milk and goat milk, I think that it would be unfair to apply that standard of mixed milk because according to the standard of mixed milk as given in the Act, the fat should be 4.5. In the instant case, the fat content was higher than the expected fat content of 3.5. Undoubtedly, the sample was deficient in non-fatty solids. In this connection, the learned counsel for the applicant argued that if the fat content was higher than the prescribed standard and the deficiency was only of non-fatty solid, the sample should not be held to be adulterated. He referred to a ruling reported as Deoki Nandan Vs. State, 1979 (I) FAC 274. In this case, the sample conformed to the prescribed standard as regards fat content and was deficient only in non-fatty solids. Relying on the Division Bench case of this Court reported as Kadam Singh Vs. State, 1978 (I) FAC 160 it was held that if the fat content was above the prescribed standard and there was deficiency only in non-fatty solids, the sample should not be held to be adulterated. The decision in this case was that if there was a deficiency in non-fatty solid alone, the report of the Public Analyst should not be accepted as correct. In the Division Bench case, referred to above, the Public Analyst was summoned and he half-heartedly conceded that it was not possible to take out non-fatty solids without reducing or affecting the fat content. In the instant case also, it appears that the fat content was the prescribed standard of cow milk and goat milk and because there was a deficiency in non-fatty solids only, the report of the Public Analyst cannot be expected as correct. I have already held that if it is known that it was a mixture of cow milk and the goat milk, it was erroneous to expect a fat content of more than 3.5 as has been prescribed in the Act for mixed milk.

(3.) In the result, the revision is allowed. Conviction and sentence of the applicant are set aside. He is on bail and need not surrender. His bail bonds are discharged. The fine if already paid shall be refunded. Revision allowed.