SHYAM BAHADUR Vs. STATE OF U P

JUDGEMENT

(1.) THE applicant has been convicted under Sections 7116 of the Prevention of Food Adulteration Act and sentenced to 1 year's R.I. and a fine of Rs. 1000/ - by the Judicial Magis ­trate, Mainpuri. In default of payment of fine he is to undergo 4 months' S.I. His conviction and sentence has been confirmed in appeal by the Sessions Judge, Mainpuri, hence this revision.

(2.) THE case of the prosecution is that on October 31, 1973, the Food Inspector went to the shop of the applicant. He found the applicant selling milk. The milk was kept in a Tanki. Suspecting the milk to be adulterated the Food Ins ­pector purchased a sample of the same, after giving due notice to the applicant in accordance with law. The sample was duly sealed in three separate phials One of the phials in possession of the Food Inspector was sent for analysis. The report of the Public Analyst dis ­closed that the sample was deficient in fat contents by 27 per cent and non -fatty solids by 1 per cent. After obtain ­ing sanction for prosecution, the appli ­cant has been prosecuted and convicted as above.

(3.) LEARNED counsel for the applicant has argued that section 2(1 -a) (a) of the Prevention of Food Adulteration Act did not apply to the facts of the instant case. The above section comprises of two parts one is when the article sold by the vendor is not of the nature, substance or quality demanded by the purchaser and is to his prejudice the second part relates to the article sold not being of the nature, substance or quality which it purports or is repre ­sented to be. Learned counsel urges that having regard to the statement of Food Inspector there is nothing on the record to indicate that he demanded a particular type of milk or that the na ­ture in quality of the milk demanded by Mm was mis -represented. In my opi ­nion this argument is misconceived hav ­ing regard to the circumstances of the present case. The applicant has not been held guilty of committing adulte ­ration under the provisions of Section 2 (1 -a) (a) of the Act. He has been found guilty of adulterating the milk in question under the provisions of Section 2 (1 -a) (m) of the Act. Section 2 (1 -a) (m) refers to a case where the quality or purity of the articles falls below the prescribed standard. As will be obvious from the operative portion of the order of the Magistrate, the applicant has been convicted for an offence under Section 16 (a) of the Act, which relates to adul ­teration of an article of food within the meaning of sub -clause (m) of Clause (1 -a) of Section 2 of the Act. Under the provisions of the Prevention of Food Adulteration Act the Food Inspector who takes a sample of food' for analysis is authorized to give a notice in writing of his intention to do so to the person from whom the sample is taken. It is not necessary in every case that he must demand a particular type of food. He can take any article of food which he suspects to be adulterated or which he suspects would not prescribe to the stan ­dard laid down in the Rules. Serial A 11.01.11 of appendix (B) his been fram ­ed under Rule 5 of the Prevention of Food Adulteration Rules. It lays down the standard for different classes and also the designation of milk. The 'Note' which is attached to these rules is to the effect: that (1) when milk is offered for sale without any indication of the class, the standard prescribed for buffalo milk shall apply. A perusal of this chart in ­dicates that Buffalo Milk, Cow Milk, Goat Milk, Sheep Milk, Standardized or Mixed Milk, Refined Milk, Toned Milk, Double Toned Milk Skimmed Milk are all mentioned there. The standards have also been prescribed. If the Food Inspector demands any of the various type of Milk, narrated above, or the vendor sells any of the above type of Milk, then the standard prescribed, for that particular type, of Milk will apply, but if there is no indication either way as to the type of Milk of which the sam ­ple is taken by the Food Inspector, then under the 'note' referred to above, which in my opinion is more or less than a rule itself, indicates that the standard to be applied for analysis of such milk will be that which has been prescribed for buf ­falo milk.