Ram Shankar vs State of U.P.

Murlidhar, J.—The revisionist has been convicted u/s 7/16 of the Prevention of Food Adulteration Act and sentenced to rigorous imprisonment for six months and a fine of Rs. 1000/-, in default further rigorous imprisonment for three months. The magistrate convicted him and the III Additional Sessions Judge has upheld the conviction in appeal.

The revisionist is alleged to have been selling cow milk of which a sample was taken. The Public Analyst''s report shows fat content in the sample to be 5 per cent as against the prescribed 3.5 per cent and non-fatty solid content to be 5.8 per cent as against the prescribed 8.5 per cent.

The only point canvassed in revision is that in view of 1.5 per cent excess in the fat content, the 2. 7 per cent deficiency in non-fatty solid content could not be regarded as evidence of adulteration. The case of Babu Lal v. State 1979 (1) Prevention of Food Adulteration Cases, page 267, has been relied upon. That was also a case of cow milk which was found to contain 8. 6 per cent fat content against the prescribed 3. 5 per cent fat and 7.5% non-fatty solid contents as against the prescribed 8.5 per cent. It was held in that case by M.P. Sexena, J. relying on Kadam Singh v. State of U.P. 1978 FAC, page 161, that if the sample conforms to the standard prescribed for fat content, it will not be held to be adulterated simply because it is slightly deficient in non-fatty solid content. With great respect I am of opinion that this is not the decision in the Division Bench case. The only finding there was that in view of the obvious anomaly in the Analyst''s report in the buffalo milk sample fat content was found to be 11 per cent as against the prescribed 6 per cent and non-fatty solid content to be 1.9 percent as against the prescribed 9 per cent, the report could not be regarded as reliable and fit for basing a conviction. That is a wholly different aspect. There is no apparent discrepancy or anomaly of such a degree in the present case that the report should be held to be unreliable. Even the combined total of fat and non-fatty solid content in the present case is 10.8 per cent short by 1.2% as against 12 per cent the total of the prescribed standards for the same. Even in Babu Lal''s case the total was 16.1 percent as against the 12 percent. Moreover in the present case the deficiency in non-fatty solid content is quite substantial being of the order of 1 percent. I am respectfully of the opinion that the Division Bench decision has not been properly interpreted in Babu Lal''s case. In fact the legal position is that as soon as non-fatty solid contents are below the prescribed standard the milk has to be treated to be adulterated by a legal fiction and no argument that this may have been caused by the feed of the cow is permissible to detract from this position. The only question in appropriate cases can be whether the Analyst''s report suffers from any such apparent improbability, discrepancy or anomaly that it should be treated as unreliable. The present case by no stretch be regarded to be such a case.

The other argument was that in this case there had been a breach of Section 13(2) of the Prevention of Food Adulteration Act. The copy of the Analyst''s report sent by registered cover was not served on the accused and the cover was returned unnerved and was produced in the court. Section 13(2) and Rule 9A of the Act only require sending of the Analyst''s report with proper notice by registered post or by hand. In case of registered post dispatch the provisions do not require service of the cover. Therefore, unless some defect in the address could be shown, there cannot be said to have been any non-compliance. The lower appellate court has observed that the registered cover was sent at the address given by the revisionist at the time of sample being taken and, therefore, the finding that there was no breach of Section 13(2) of the Act is also unassailable.

The revision fails and is hereby dismissed. The revisionist who was admitted to bail in pursuance of this Court''s order dated 25-4-1980, shall be got arrested immediately to serve out the sentence passed against him. The stay order against realization of fine is vacated.