Nagar Swasthya Adhikari Nagar Mahapalika vs Guru Prasad

B.N. Katju J.

Guru Prasad was convicted u/s 7/16 of Prevention of Food Adulteration Act (hereinafter referred to as the Act) by the Metropolitan Magistrate (Corporation), Kanpur by his judgment dated 1-2-1977 in case No. 451 of 1977 and was sentenced to six months rigorous imprisonment and a fine of Rs. 1000/-and in default of payment of fine to undergo three months rigorous imprisonment.

Guru Prasad filed criminal appeal No. 34/M of 1977 against the aforesaid judgment of the learned Magistrate which was allowed by the Sessions Judge, Kanpur (Nagar) by his judgment dated 10-5-1977 and his conviction and sentence were set aside. The Nagar Swasthya Adhikari Kanpur has filed this appeal against the aforesaid judgment of the Sessions Judge, Kanpur (Nagar) dated 10-5-1977.

The case of the prosecution is that on 26-11-1975 at about 11 A. M. B. K. Ahankhar (PW 1) Food Inspector Nagar Mahapalika Kanpur purchased 660 grams of a mixture of cow and buffalo milk from Guru Prasad in Transport Nagar Mohalla Kidwai Nagar in the city of Kanpur. The milk was divided in three equal parts and put in three bottles and after formaline was added the three bottles were sealed. One of the bottles was sent to the Public Analyst for analysis and the report of the Public Analyst shows that the sample of milk contained 4.9 per cent of milk fat and 7.8 per cent of non-fatty solids. In the opinion of the Public Analyst the milk was adulterated as the non-fatty solids were 11 per cent less than the prescribed minimum.

A complaint was filed on 5-4-1976 by the Nagar Swasthya Adhikari against Guru Prasad u/s 7/16 of the Act in the Court of the Magistrate 1st Class, Kanpur.

One witness was examined on behalf of the prosecution to connect Guru Prasad with the crime, namely, B.K. Ahankhar, Food Inspector (PW 1).

Guru Prasad pleaded not guilty and stated that the milk taken by the Food Inspector did not belong to him but to another milkman.

Two witnesses were examined in defence, namely, Head Constable Kanwal Nath Singh (DW 1) and Ram Sewak Tripathi (DW 2).

The trial court after considering the evidence on record came to the conclusion that the prosecution had succeeded in establishing the guilt of Guru Prsaad and convicted and sentenced him as mentioned earlier.

The lower appellate Court acquitted Guru Prasad on the ground that the milk was deficient in only non-fatty solids and was thus not adulterated. 4. 9 per cent of milk-fat was found in the sample of the milk by the Public Analyst whereas the prescribed minimum of milk-fat for cow''s milk is 3.5 per cent. 7.8 per cent of non-fatty solids were found in the sample of milk by the Public Analyst whereas the prescribed minimum for non-fatty solids is 8.5 per cent. It was held by the lower appellate court that if the percentage of the milk-fat and non-fatty solids found in the milk by the Public Analyst were added they would be. 7 per cent in excess of the total of the prescribed minimum of the milk-fat and non-fatty solids for cow''s milk. In these circumstances it could not be held that the sample of milk taken from Guru Prasad Respondent was adulterated.

Appendix B, Clause A. 11.01.01 of the rules framed under the Prevention of Food Adulteration Act, 1954 is as follows:-

Cow milk shall contain not less than 3.5 per cent of milk fat, except in Orissa, where it shall be not less than 3 per cent and in Punjab and Pepsu where it shall be not less than 4.0 per cent. The milk solids other than milk fat, shall be not less than 8.5 per cent.

Section 2(i) of the Prevention of Food Adulteration Act is as follows:-

Adulterated--an article of food shall be deemed to be adulterated--

(a) ...

(b) ...

(i) If the quality or purity of the article falls below the prescribed standard or its constituent are present in quantities which are in excess of the prescribed limits of veriability...

In the present case the non-fatty solids found in the milk sent to the Public Analyst was 7.8 per cent which was below the prescribed minimum of 8.5 per cent for cows'' milk. The quality and purity of milk falls below the prescribed standard if it is deficient either in fat or in non-fatty solids or in both. It is not necessary that the milk must be deficient in both fat and non-fatty solids before it can be held to be below the prescribed standard of quality and purity. As in the present case the milk was deficient in non-fatty solids by 11 per cent it must be held to be adulterated in view of the definition of adulteration given in Section 2(i) of the Act. I am fortified in my view by the Full Bench decision of this Court in Prem Das v. State 1961 AWR 405 and also the decision of a Division Bench of this Court in State of U. P. v. Safri Raw 1964 ALJ 59 = 1963 AWR 768 and the under mentioned single Judge decisions of this Court:- Megh Singh v. State, 1979 AWC 247 , Rajan Lal Vs. State, , Sobha Ram v. State 1966 AWR 828.

It is true that in the Division Bench case of this Court Pooran Singh v. State 1978 FAJ 168 and in the under mentioned single Judge decision--Abdul Latif v. State 1981 FAC 4, Ram Prasad v. State 1979 FAC 47, Ujagar Singh v. State of Punjab 1980 FAC 432, Babu Lal v. State 1979 FAC 267, Deokinadan v. State 1979 FAC 274, Municipal Corporation of Delhi v. Jawahar Lal 1980 FAC 145, Ram Autar v. State 1980 FAC 249, Halke v. State of U. P., 1980 FAC 256, Devidatt, v. State of U. P. 1980 FAC 348 Hansraj v. State of Punjab 1980 FAC 396, it has been held that milk cannot be held to be adulterated if it is deficient only in the non-fatty solids but it appears that in the aforesaid decisions the Full Bench decision of this Court in Prem Das v. State (supra) was not cited which is binding on me.

The result, therefore, is that the lower appellate court wrongly came to the conclusion that the milk purchased from Guru Prasad Respondent by B.K. Ahankhar Food Inspector (PW 1) was not adulterated as it was deficient only in non-fatty solids and not in milk fat. Guru Prasad Respondent is clearly guilty u/s 7/16 of the Act as the milk purchased from him by the Food Inspector PW 1 was adulterated as it was deficient in non-fatty solids. The acquittal of Guru Prasad Respondent u/s 7/16 of the Act by the lower appellat Court was, therfore, unjustified.

Considering the fact that the milk was deficient only in non-fatty solids by 11 per cent and not in milkfat and the incident took place about six years back ends of justice would be met by sentencing Guru Prasad Respondent to a fine of Rs. 250/-.

The appeal is accordingly allowed. Guru Prasad Respondent is convicted u/s 7/16 of the Act and is sentenced to a fine of Ra. 250/-. In default of payment of fine he shall undergo one month''s rigorous imprisonment.

The fine shall be deposited within one month of the receipt of the record by the trial court.