PUBLIC PROSECUTOR A P Vs. MUNIRATHANAM REDDI

JUDGEMENT

(1.) ON 30th April, 1965 at 9-45 A.M. the Food Inspector, Chittoor Municipality found the accused carrying a mixture of cow and buffalo milk intended for sale. He purchased three ollocks of milk for analysis in the presence of P.W. 2 after serving a notice on the accused in the prescribed form. The milk was then, and there separated into three parts and filled in three clean dry bottles and after the addition of formalin, a preservative, the bottles were duly sealed. ONe of the bottles was given to the accused. ONe bottle was sent to the Public Analyst and the third bottle was sent to Court. A statement was also recorded from the accused After receiving the report of the Public Analyst that the sample sent to him was adulterated, the Food Inspector filed a complaint before the Judicial First Class Magistrate, Chittoor. The plea of the accused was that the milk was not intended for sale and that he was merely carrying the milk to a hotel at the instance of one of Jayaram Reddy. In support of his plea he examined one Muni Reddy. 2. The learned First Class Magistrate rejected the plea of the accused and the evidence of D.W. 1 and accepting the evidence of P.Ws. 1 and 2 held that the accused was carrying the milk intending it for sale. He also found that the sample which was sent to the Analyst had not decomposed and was in a fit condition for analysis when it was analysed by the Public Analyst. Inspite of these findings, however, he acquitted the accused on the ground that the Public Analyst had arrived at the result that the sample contained 11 per cent of extraneous water, not on the basis of the freezing point test, but on a calculation based on the percentage of solids not fat. 3. According to the learned Magistrate the freezing point test alone was a conclusive test and other tests were not. He purported to rely on a judgment of the Madras High Court in Public Prosecutor v. Kalloor Rayavaram Co-operative Milk Supply Society Limited, (1964) 2 M.L.J. 53 : (1964) M.L.J. (Crl.) 411:I.L.R. (1964) 2 Mad. 398. 4. The State has preferred this appeal against the order of acquittal. The report of the Public Analyst in the present case is as follows : "I hereby certify that I, M. Krishnamurthi, B.A.M.SC., A.R.I.c. Public Analyst for Chittoor Municipality duly appointed under the provisions of the Prevention of Food Adulteration Act, 1954, received on the 4th day of May, 1966 from the Food Inspector, Chittoor Municipality a sample of cow and buffalo milk marked No. 459 for analysis, properly sealed and fastened, and that I found the seal intact and unbroken. I further certify that I have caused to be analysed the aforementioned sample, and declare the result of the analysis to be as follows :- Fat-5.1 per cent. Solids not fat-8-0 per cent whereas clause A-11 in Appendix B to the Prevention of Food Adulteration Rules, 1955 requires that milk when sold without any indication as to whether is derived from cow, buffalo, goat or sheep contain not less than 9-0 per cent, solids not fat as in the case of buffalo milk. I am of opinion that the sample contains 11 per cent of extraneous water as calculated from the solids not fat and is therefore adulterated. Observations : The seals on the container of the sample were compared with the specimen impression sent by the Food Inspector ana were found to be identical with the same. The sample was preserved with formalin. No decomposition had taken place in the article since purchase that would interfere with the analysis. Signed this second day of June, 1966 at Hyderabad. (Sd.) M. Krishnamurthy, Public Analyst". 5. It will be seen from the report that the sample contained 5.1 per cent of milk fat as against the standard of 5 per cent prescribed in paragraph A. 11.10.02 read with paragraph A. 11.01.03 of Appendix B to the Prevention of Food Adulteration Rules. The milk fat contained in the sample was, therefore, above the prescribed standard. The sample, according to the Public Analyst's Certificate, contained 8 per cent of milk solids other than milk fat as against the standard of 9 per cent prescribed by paragraph A. 11.01.02. read with paragraph A. 11.01.01.03 of Appendix B. The sample was, therefore, deficient in milk solids other than milk fat and hence adulterated within the meaning of section 2 (i)(1) of the Prevention of Food Adulteration Act. It is important to note here that an article of food must be held to be adulterated in terms of section 2 (i) (1) of the Act if the quality of the article falls below the prescribed standard, irrespective of whether it is established that any substance has been added to the article of food. An article of food is adulterated within the meaning of the Act if it is shown to be of a sub-standard quality even if it is not shown that any other substance or extraneous ingredient has been added to it. For example, it is known that pure genuine milk straight from the cow may yet be deficient in milk fat or milk solids even though no water is added. 6. This sometimes depends on the breed of the cow, the season of the year, the pathalogy of the particular cow, the manner of its feeding, the length of time between the milkings etc. (See ' Practical Food Inspection ' of C.R.A. Marthin, 5th Edition, page 434. See also the ' Chemical Analysis of Foods' by Pearson, 5th Edition, page 322). That is why in England, under the Food and Drugs Act, mere deficiency either in milk fat or in non-fatty solids is not treated as conclusive proof of adulteration, but only gives rise to a presumption, until the contrary is proved, that the milk is not genuine by reason of the abstraction therefrom of the milk fat or the addition thereto of water. The position in India, however, is different. Under the special identification of ' adulterated ' contained in section 2 of the Prevention of Food Adulteration Act an article of food shall be deemed to be adulterated not only when extraneous ingredients are added to it etc. but also " if the quality or purity of the article falls below the prescribed standard or its constituents are present in quantities which are in excess of the prescribed limits of variability." 7. Section 3 of the Act provides for the constitution of a Committee called the Central Committee for food standards to advise the Central Government and the State Government 5 on matters arising out of the admini tration of the Act and to carry out other functions assigned to it under the Act. The Committee consists of several experts as also representatives of agricultural, commercial and industrial interests. 8. Section 23 (1) (b) of the Act empowers the Central Government, after consultation with the Committee and after previous publication, to make rules defining the standards of quality for, and fixing the limits of variability permissible in respect of any article of food. In exercise of the powers conferred by the Act and after consultation with the Central Committee for Food Standards the Central Government has made rules called the Prevention of Food Adulteraticn Rules. Rule 5 of the Ruk s states : "Standards of quality of the various articles of food specified in Appendix B to these rules are as defined in that Appendix ". 9. Appendix B gives various standards of quality for various articles of food. Paragraph A.II.OI defines milk while the subsequent paragraphs prescribe the standard of milk fat and solids not milk fat in cow milk, buffalo milk, goat milk, sheep milk and milk offered for sale without indication whethr it is derived from: cow, buffalo, goat or sheep. It is thus clear that in India if a sample of milk is found not to contain either milk fat or milk solids other than milk fat of the prescribed standard the milk must be deemed to be adulterated without further proof that water or any other extraneous matter has been added to the milk. It may sometimes happen that a sample of milk may contain more milk fat and other solids than the prescribed standard. It such a situation in order to determine whther the sample of milk is adulterated or not it is further necessary to find out whether any water or other extraneous mattr has been added by some process other than calculations based on the quantity of milk solids other than milk fat. ONe of the fairest and safest tests for determining the quantity of added water in milk is the freezing point test. This test is a virtual necessity in Englai d because, as already pointed out by me, in that country deficiency of milk fat or solids other than fat gives rise only to a presumption and, therefore the mere determination of the percentage of milk fat and solids other than fat is not enough to consider that a sample of milk has been proved to be adulterated. Hence all the text book writers of that country advise that the freezing point test should invariably be undertaken before a sample of milk is dubbed as adulterated. In India too this test should be undertaken if the sample is found to contain more than the prescribed standard of milk fat and solids other than fat. The case before the Madras High Court in Public Prosecutor v. Kalloor Rayavaram Co-operative Milk Supply Society Ltd., (1964) 2 M.L.J. 53 : I.L.R. (1964) 2 Mad. 398: (1964) M.L.J.. (Crl.) 411. was such a case. There the report of the Government Analyst showed that the sample contained 4.7 per cent of milk fat and 8.6 per cent of solids not fat. This is evident from what is stated by the learned Judge at page 412 in the last paragraph and in the first four lines of page 414. (The extract of the report at page 412 is not correctly printed, the figures 4 and 7 and 8 and 6 being removed from each other as if they had no connection with each other). The observations of the learned Judge that the freezing point test has been accepted by Courts as the fair and safe method of determining the added water in milk and that it is difficult to distinguish a sample of milk with added water and a sample of pure quality milk by determining the specific gravity or the percentage of solids alone, must be understood in the context of the facts which Kailasam, J., was considering. In the present case the report of the Analyst shows that sample of milk was deficient is solids other than fat and by reason of the definition of 'adulterated' it must be held that the sample was adulterated. 10. The learned Counsel for the accused argues that there was considerable delay in making the analysis and therefore the report of the analyst should not be given any weight. But the report of the Analyst shows that the sample was preserved with formalin and that no decomposition had taken place in the article, such as would interfere with the analysis. In other words the sample was in a fit condition for analysis notwithstanding the so called delay in analysis. That should be enough. 11. The report of the Analyst is in conformity with what an Analyst is expected to state in his report according to the Halsbury's Laws of England (Simonds Edition. Vol. 17, page 470, para. 872). It is well known that formalin is a powerful preservative recognised as such by all text book writers on Food Analysis. Most of the passages quoted from text books in Dattappa Mahadappa v. Secretary, Municipal Committee, Buldana, A.I.R. 1951 Nag. 191. and referred to in J. S. Gupta v. Abdul Mutalekh, A.I.R. 1964 Tripura 48. deal with cases where preservatives were not added because in England there is a statutory prohibition against the addition of any preservative to a sample of milk. It is, therefore, misleading to rely upon passages in English text books emphasising the need 'for analysis when the milk is still fresh. 12. In the light of the foregoing discussion I find that the accused is guilty of an offence under section 16 (1) read with section 7 of the Prevention of Food Adulteration Act. Though section 16 (1) prescribes a minimum sentence of six months the provision, gives a discretion to the Court, for special reasons to be mentioned, to impose a lighter sentence or even a sentence of fine if the article of food is found to be adulterated under section 2 (i) (1) of the Act. The accused is a petty milk vendor and is not shown to have committed any previous offence. I think the interests of justice will be met if he is sentenced to pay a fine of Rs. 100 in default to undergo imprisonment for one month. The appeal is accordingly allowed. Appeal allowed.