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,1. 1971 MPLJ Note No. 47=Cr. A. No. 291 of 1964 decided at Indore on 6th Sept. 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 1. 1971 MPLJ Note No. 47=Cr. A. No. 291 of 1964 decided at Indore on 6th Sept. 1965. 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 round 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 giving one sample to the milk-vendor and retaining 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 4.6 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 find any 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| per cent. This shows that assuming the original milk to be no thicker than cow's milk, between 6 and 7 per cent 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\ times as much. Eitherway even on the most charitable interpretation of the data the vendor had committed an 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.) IT was suggested on behalf of the respondent in this Court that after all the vendor might not have added water but the milk might have been slightly thinner than usual on account of whether or the idiosyncracy of a particular cow. Generally speaking the idiosyncracy of the individual animals or a local variation in feeding methods may result in variation of the percentage of components ; but before the rule-making authority prescribed a standard it had already taken into account these possible variations and prescribed the lowest level after making all allowances. IT is not sufficient to say that some idiosyncracy or peculiar feeding habit can slightly lower the percentage of the component; of course it will; but the defence has to show that it can so lower it as to bring it below the prescribed percentage in fixing which such possible variations have already been taken into account. Thus we would set aside the judgment of acquittal and convict the respondent under section 16 (1) (a) (ii) of the Prevention of Food Adulteration Act as it then stood.