STATE OF M.P. Vs. NANDRAM

JUDGEMENT

(1.) THIS is an appeal by the State from the judgment of acquittal recorded by the learned Additional District Magistrate of Ratlam in a case under the Prevention of Food Adulteration Act against the respondent. As a preliminary point we need only mention that another Divisional Bench of this Court has held in State v. Ambalal Cr. A. No. 291 of 1964 decided at Indore on 6th September 1965, that, subject to the limitation contained in section 417 (5) Criminal Procedure Code, (which does not operate here) the State is competent to file appeals from all acquittals including ones in complaint cases or in cases on report like this by food inspectors which have been equated to complaint cases. The questions for consideration here are the appropriateness of the logic under which the trial Court tries to explain away the patent deficiency in one of the essential elements in the milk and second, this admittedly being a second case whether in the event of conviction this Court would be justified in awarding a penalty less than that prescribed in section 16 (1) (a) (ii) of the Act as it stood in 1964.

(2.) THE facts of the case are the following - The respondent Nandram who is a vendor of milk licensed to sell it within the Ratlam Municipal area was actually stopped by the. Food Inspector on 11 -1 -1964 while on a selling ground in that town. The inspector purchased a quantity of milk and having divided it in three portions added formalin (40% solution) at the rate of two drops for each ounce of milk and having given one sample to the vendor and retained another with him forwarded the third for chemical examination and report. The vendor had put no indication on the container as to whether this milk was a pure or a mixed variety; but he told the food inspector that he was selling a mixture of cow and buffalo milk. Whether or not the absence of a clear visible writing to this effect on the container called upon the Court to apply the test for the thicker variety namely, buffalo milk, the Court itself proceeded on the assumption that it was a mixture of cow and buffalo milk and should contain the prescribed elements at least in the proportion prescribed for the thinner component, that is cow's milk. The report came that there was milk fat 46 per cent; the total solids including milk fat 12.56 per cent and solids other than milk fat 7.96 per cent. As far as the milk fat is concerned, the trial Court did not finy an deficiency because it was not applying the requirement for buffalo -milk which is 5 per cent but was applying that for cow -milk which in this region is 3.5 per cent. But even by applying the formula indicated for cow -milk, there was a deficiency in non -fat solids of 0.54 out of 8.5, that is a deficiency of 6 -1/2 per cent; This shows that assuming the original milk to be no thicker than cow's milk between 6 and 7 percent of water had been added; if of course we assume that the original liquid was buffalo's milk, the percentage of water added could be anything like 2 -1/2 times as much. Hitherway, even on the most charitable interpretation of the data the vendor had committed any offence. It may be that this degree of watering is much less than what is in fashion among our milkmen. Still it is a case of selling adulterated milk.

(3.) THE second reason given by the learned Magistrate is based on an incorrect reading of the statement of the Food Inspector. As usual he divided the sample into portions and added the preservative which is formalin. The latter is sold in standard solution and the solution that food inspector used was of 40 per cent strength. he put two drops of this solution for each ounce' of the sample. All this is precisely what Rule 20 has prescribed. But somehow the learned Magistrate had persuaded himself that the formalin used is of half the strength prescribed by Rule 20. It is difficult to agree. In his connection another point was sought to be made during argument. In some manuals it 'is stated that milk with two drops of formalin to one pint (say, 19 ozs) might go bad after two or three days). Since the analysis in this case was done after 15 or 17 days it is urged that the milk must have decomposed before that and therefore the results of the analysis were unreliable. The preservative effect of formalin like any other chemical preservative depends upon its concentration. Upto a particular concentration the preservative effect will increase, but after that it will remain about the same. Experience has shown that two drops (of 40% solution) to one ounce is about the margin. Incidentally two drops to a pint is about 1/20 of two drops to one ounce, so that it is perfectly conceivable that the degree of "formalination" in the former events is insufficient to preserve the sample for more than a few days, while that in the latter is sufficient to preserve it for several months. Normally when human consumption is concerned the aim is to add as little of the preservative as is necessary just to keep the sample without decomposition during the period for which it is expected to be kept in day -to -day use. More preservative would of course ensure longer non -decomposition, but it might make the sample unediable or at any rate not to the taste of the consumer. On the other hand, while preserving samples for analysis there is no question of its being fancied by any consumer the only consideration being preservation without inducing secondary chemical reactions. That is why Rule 20 has prescribed two drops of 40 per cent formalin solution for each ounce of the sample. Thus the second reason looked at from any angle whatsoever is also misconceived.