STATE OF M P Vs. RAJMAL

JUDGEMENT

(1.) This State appeal filed by special leave is directed against the judgment of acquittal dated 3 1-12-1982, passed by Shri P.C. Upadhyaya, Judicial Magistrate Class I, Sahore in Criminal Case No. 125/79.

(2.) The respondent Rajmal was put on trial for offence punishable under section 16 of the Prevention of Food Adulteration Act for having sold adulterated milk on 6-11-1979 to the Food Inspector, Shri M.C. Garg (P.W. 1). The said cow milk, according to the report of Public Analyst (Ex. P-5), was adulterated by adding 20 per cent of water. From the report it would appear that the sample had 5 per cent, fat and 6.6 per cent non-fatty solid as against the standard of 3.5 and 8.5 per cent, prescribed by law. Since this was illegal the appellant was put on trial as aforesaid. By a peculiar logic the learned trial Judge held that the difference between the finding of the Public Analyst and the prescribed standard was only marginal and since the Public Analyst was not examined it cannot be accepted that the milk waq adulterated. That is how the order of acquittal was passed.

(3.) Section 13 of the Act deals with the report of Public Analyst and provides for banding over a copy of the same to the accused person. An accused person has a right to require the Court to send another sample of the Article of food kept by the local authority for analysis to the Central Food Laboratory. The certificate issued by the Central Food Laboratory supersedes the report of the Public Analyst. The report of the Public Analyst duly signed by him is used as evidence of the facts stated therein in any proceeding under this Act Clearly, therefore, it is not necessary for the prosecution to examine the Public Analyst to prove the content of the report. A perusal of the report. Ex. P.5 indicates that it is not only signed but also sealed by the Authority and contains the number of the sample and also the fact that it indicates presence of 20 percent, added water. This report being in accordance with the provisions of the Act must be held to be admissible in evidence of facts stated therein even without examining the Public Analyst. Under the circumstances, this Court is not able to hold that in the absence of Public Analyst the report does not prove that the sample was adulterated. Learned counsel for the respondent, however, submitted that the fat contents, according to this report, are more than the standard contents of 3.5 per cent. Though there is no deficiency in fat contents of the milk solid non-fatty contents found different from non- fatty contents as prescribed in the Act are 8.5 percent but it was found to be 6.6 percent indicating that the deficiency was of about 2 percent. That appears to be the reason why it was stated that about 20 percent had been added in the milk. It is not possible to add fat contents and solid non- fatty contents and thereby judge if the sample was adulterated. The deficiency may either be in the fat contents or non fat contents. But if it is found in either of them the sample would be treated to be adulterated. There is no doubt that to some cases where the Courts have added the fat and nonfat solid contents to judge the deficiency and have not punished an accused when the stated deficiency was only marginal as these marginal deficiency may be due to error in the analysis by the Public Analyist. This however does not mean that either fat or non-fat contents can be reduced to zero by increasing the other contents. This is not what the Courts have stated nor it appears to be permissible under law. Once separate percentage has been prescribed for fat and nonfat contents both of it have to be complied with. Then in the instant case the difference is not marginal. 85 percent of non-fatty solid his been reduced to 6.6 percent, i.e. by about 25 percent. Since this could be done by adding water there is no way of the conclusion that the sample was adulterated. Under the circumstances this Court is not able to agree with the learned Judicial Magistrate that this difference was because of nature of individual cow. According to this Court, the difference being more than marginal and report being strictly in accordance with law, the sample has to be accepted as adulterated.