State by Public Prosecutor vs Muthiah

Swamikkannu, J.—This is an appeal by the State against the judgment dated 7th May, 1976 in C.C. 188 of 1976 on the file of the Court of

the Sub Divisional Magistrate of Kovilpatti, finding the accused-Respondent herein not guilty of the charge framed against him under Ss.7(l) and

16(1)(a)(i) read with Ss 2(i)(a)(1) of the Prevention of Food Adulteration Act, 1954 (hereinafter referred to as the Act) and acquitting him u/s

248(1), Crl. P. C.

The case against the accused-Respondent herein before the trial court is that on 27th December, 1975 at 6 a.m. in front of Venkateswara

Clinic, Main Road, Koilpatti, the accused-Respondent here in had in his possession cow''s milk for the purpose of sale to the public, that the

complainant, viz, the Food Inspector, Kovilpatti Municipality, purchased 660 milli-litres of milk from the Respondent for Rs. 1.10 and that on

analysis the sample was found to be deficient in solids-not-fat to the extent of at least 40 per cent.

On the appearance of the Respondent in the trial court, a copy of the complaint was given to him. Since the Respondent appeared to be a

young person, he was sent to the Medical Officer, Government hospital, Koilpatti, for ascertaining his age. C.W.1, one of the Civil Assistant

Surgeons, attached to the Government Hospital, Kovilpatti, examined the Respondent on 24th April, 1976 for fixing his age. C.W.1 is of the

opinion that the Respondent has completed 18 years of years of age but is below 20 years. Ex. Cl is the report of C.W.1. On the basis of the

evidence of C.W.1, and Ex. C.l, the trial court fixed the age of the Respondent as completed 18 years.

On behalf of the complainant, the Food Inspector of Koilpatti Municipality himself was examined as P.W.1 and Ex.P1 receipt for Rs. 1-10

issued by the Respondent herein to P.W.1, Ex.P2, dated 27th December, 1975 form No. VI notice, Ex.P3, dated 2nd February, 1976, report of

the Public Analyst, were filed on behalf of the prosecution. Ex. Cl, dated 24th April, 1976 is the certificate showing the age of the Respondent

herein. A sealed bottle bearing label No. 161 said to contain milk was produced as M.O. 1 before the trial court.

When questioned u/s 313 Crl.P.C., by the trial court, the Respondent herein stated that he was admitting all the facts spoken to by P.W.1.

Thereafter, the trial court framed against the Respondent charges under Ss.7(i) and 16(1)(a)(i) read with Section 2(i) (a) and (1) of the Act, and

read over and explained them to the Respondent in Tamil. The respondent pleaded guilty of the said charges. The Respondent did not want to

further cross-examine the witness ; nor did he examine any witness on his side.

On the point whether the prosecution had proved the charge against the accused beyond all reasonable doubt, the trial court held that P.W.1

had followed all the procedure prescribed under the Act in taking the sample, and then relying on the decision in Sultan Shah Vs. State, , found the

accused-Respondent herein not guilty of the charges framed against him and acquitted him u/s 248(1)(1), Crl. P.C., as afore-mentioned.

Aggrieved by the said decision of the trial court, the State has come forward with this appeal, inter alia contending that the trial court erred in

acquitting the accused on the basis of the judgment of the Allahabad High Court in Sultan Shah Vs. State, that the finding of the learned Magistrate

that just because the fat content was more than the prescribed minimum, the deficiency in the solids-not fat does not matter, is erroneous. It is

further contended on behalf of the Appellant that the trial court ought to have held that deficiency in the solids-not-fat below the prescribed

minimum is an offence under the Act, that the trial court ought to have seen that even assuming that the change in the prescribed standards might be

because of improper feeds, the law prohibits anybody from selling such a milk and hence the court below ought to have found the Respondent

guilty of the offence. It is further contended on behalf of the Appellant that the trial court ought to have seen that if the ''fat'' in the milk fluctuates

widely depending on various factors, while the solid-not-fat does not vary much, but is more or less constant and, hence, a deficiency of about

40% in the solids-not-fat would lead to the only inference that the milk in question is adulterated.

The point for consideration is whether the prosecution has proved the charge framed against the accused-Respondent under Ss.7(l) and 16(l)(i)

read with S.(i) (a) and (1) of the Act beyond all reasonable doubt.

Section 7(i) reads as follows-

No person shall himself or by any person on his behalf manufacture for sale, or store, sell or distribute (i) any adulterated food;.........

S.2(i), Cls. (a) and (i) of the Act, as it stood on 27th December, 1975, viz, before the amendment under Act 34 of 1976, read as follows-

In this Act unless the context otherwise requires

(i) ''adulterated''-an article of food shall be deemed to be adulterated-

(a) if the article sold by a vendor is not of the nature, substance or quality demanded by the purchaser and is to his prejudices ,or is not of the

nature, substance or quality which it purports or is represented to be; .........

(1) If the quality or purity of the Article falls below the prescribed standard or its constituents are present in quantities which are in excess of the

prescribed limits of variability;

As per Act 34 of 1976, the above sub-S.(i) of S.2 of the Act has been renumbered as sub-S.(la) and Cl.(1) has been renumbered as Cl.(m).

Section 16(1)(a)(i) of the Act as it was in existence on the date of the offence alleged, reads as follows

(1) If any pars on-

(a) whether by himself or by any other person on his behalf imports into India or manufactures for sale, or stores, sells or distributes any article of

food-

(i) which is adulterated or misbranded or the sale o which is prohibited by the food (Health) authority in the interests of public health;.....

he sell, in addition to the penalty to, which he may be liable under the provisions of S. 6, be punishable with imprisonment for a term which shall not

be less than six months but which may extend to six years, and with fine which shall not be less than one thousand rupees;

Provided. . .

P.W. 1 Masoodhu, the Food Inspector of Koilpatti Municipality, has stated in his evidence that the Respondent herein is a licensed dealer of

the Municipality for selling milk. On 27th December, 1975 at about 6 a.m in the morning, on the Main Road, at Koilpatti, viz., at a place opposite

to the Vepkateswara Clinic, the Respondent was bringing on a cycle, cow''s milk for sale. P.W.1 purchased 660 milli-litres of the said milk from

the Respondent for Rs 1.10 through a witness by name Madanagopal. Ex.P1, receipt, was issued by the Respondent for payment of Rs. 1-10

made by P.W 1, for the purchase of the milk. It was also made known to the Respondent at that time by P.W.1 that the said sample of food, viz.,

the cow''s milk, that was purchased by P.W.1 from the Respondent, would be sent for chemical analysis. P.W.1 served Ex.P2 copy of form VI to

the Respondent. P.W.1 divided the milk purchased by him into three equal parts and poured each one of the said portions in a separate empty dry

bottle, which were cleaned. Thereafter, the three bottles containing the three equal portions of the milk purchased, were added with 16 drops of

Formalin and thereafter each bottle was closed with a cork and then sealed with sealing wax Each bottle was then affixed with a label containing

No. 161. One of these three bottles was given to the Respondent. The details regarding the handing over of one of three bottles to the Respondent

and the fact of purchase of milk from the Respondent are mentioned in Exs P1 and P2. The Respondent has signed and one Madanagopal has

attested, in both Exs.P1 and P2. On the same day, the second bottle, along with from No. VII duly filled up. was sent to the Food Research

Examiner, Guindy. The parcel receipt and copy of form No. VII were sent to the Food Analyst at Guindy by registered post by P.W.1. On 20th

March, 1976 P.W.1 received the report from the Food Analyst and it is Ex. P3. In Ex. P3 (report No. 8848/75-76) it is mentioned that the

sample milk is deficient in solids-not-fat to the extent of at least 40 per cent. The copy of Ex.P3 was also served on the Respondent. On 2nd April,

1976 the charge was filed against the Respondent herein. M.O.1 is the third bottle which was sealed in the presence of the Respondent at the time

of the seizure of the sample of milk from him on payment of price. According to the prosecution, this deficiency in solids-not-fat at least to the

extent of 40% as per Ex.P3, the report of the Food Analyst, King Institute, Guindy is contrary to the provisions of Section 2(i) Cls.(a) and (1) of

the Act, as they were in existence on the date of the offence alleged.

Thus, the evidence unfurled, through P.W.1, discloses that P.W.1, the Food(sic) Inspector of Koilpatti Municipality, purchased 660 milli litres

of cow''s milk from the, Respondent herein on 27th December, 1975 at about 6 a.m. It is also in evidence that the Respondent is a licensed dealer

in milk, The milk was seized from the Respondent in front, of Venkateshwara Clinic on the main road in Koilpatti. P.W.1 paid Rs. 1.10 as its price

to the Respondent, who gave a receipt, Ex.P1. Then P.W.1 informed the Respondent that he was going to send the sample to the Public Analyst

at Guindy and served a copy of form VI(Ex. P 2) on the Respondent. Thereafter he divided the milk purchased by him from the Respondent into

three equal parts and put each of them in three clean dry empty bottles, added 16 drops of Formalin to the contents of each bottle, then sealed

each of the bottles with wax, and finally affixed each of the bottles with a label bearing No. 161., Thereafter P.W.1 gave one of the bottles to the

Respondent herein, who acknowledged the same under Ex.P1. At that time, one Madanagopal was present, at the time of the taking of the

sample, be has also attested Exs.P1 and P 2. On the same, day, P.W.1 sent the clean sample bottle along with the duly filled Form VII to the

Public Analyst, Guindy, through railway parcel. Then he sent the parcel receipt along with the copy of form No. VII by registered post to the

Public Analyst. On 20th March, 1976, P.W. 1 received Ex P3, the report of the Analyst, which states that the sample is deficient in solids-not-fat

to the ex-tent of at least 40 per cent. P.W.1 then served a copy of Ex. P3 on the Respondent and then filed the complaint. M O.1 is the third

bottle. P.W.1 was not cross-examined.

As seen above, the case of the Respondent seems to be one of allegations made by P.W.1 in his evidence. When questioned u/s 313, Cr.P.C,

he answers all the questions in the affirmative, except the question regarding the charge wherein he has stated that he is not guilty of the offence

with which he has been charged. He has also stated that the was not cross-examining P.W.1 and that he was not also examining any witness on his

side.

After the charge was framed under Ss.7(i) and 16(1)(a)(i) read with Section 2(i) (a) and(1) of the Act, it was read over and explained to the

Respondent in Tamil, and the Respondent pleaded not guilty. Under these circumstances, the evidence unfurled through P.W.1 regarding the

offence with which the Respondent has been charged, has to be accepted. The evidence of P W. 1 clearly establishes that on 27th December,

1975 at about 6 a.m , he purchased 660 milli litres of cow''s milk from the Respondent herein in front of Venkateswara Clinic in the presence of a

witness for Rs 1-10. The Respondent has also issued a signed receipt Ex.P1 to the same effect. P.W.1 then informed the Respondent herein about

his sending the sample to the Public Analyst and served on him a copy of the notice Ex.P2. Then, he divided the purchased milk into three equal

parts and put them into three dry empty bottles and then added 16 drops of Formalin to the contents of each bottle, corked the same and affixed

his seal on each of them and gave one of the bottles to the Respondent herein Thus, it is clear that P.W.1 has purchased the sample of milk from

the Respondent and followed all the procedures prescribed under the Act in taking the sample.

The learned Public Prosecutor submits that as per Ex.P3, the fat content of the sample is 4.4% while the content of solids-not-fat is 5 15%,

that according to clause A.11.01.11 in Appendix B to the Prevention of Food Adulteration Rules, 1955, the cow''s milk shall contain not less than

3.5% of milk fat and the solids-not-fat shall be not less than 8 5% He contends that thus the milk fat found in the sample is in excess of the

standard prescribed while the solids not-fat is less than the standard prescribed under the Rules. Therefore, the learned Public Prosecutor submits

that the offence has been made out by the prosecution beyond all reasonable doubt and that the trial court is not correct in having followed the

decision in Sultan Shah Vs. State, as the later decisions in Municipal Corporation of Delhi v. Siri Ram 1975 F.A.C. 162 (Delhi High Court) and in

Megh Singh v. State 1976 I F.A.C 59. (Allahabad High Court) are to the effect that it makes no difference at all whether the deficiency was in fat

contents or in non-fatty solids, that the standard for milk fixed under the Act is one that is certain and if it is varied to any extent by extraneous

considerations then the certainty of a general standard would be replaced by the vagaries of judicial speculation and that the existence of non-fatty

solids below the prescribed standard is an offence punishable u/s 7 or 16 of the Prevention of Food Adulteration Act. It is also pointed out by the

learned Public Prosecutor that in the decision in Municipal Corporation of Delhi v. Siri Ram 1975 F.A.C. 162 (Delhi High Court) it was held that

milk would be deemed to be adulterated even if it fell short of the required standard in any of the ingredients. He would submit, therefore, that the

learned Sub Divisional Judicial Magistrate, Koilratti, made a great error in acquitting the accused Respondent He also points out that in the above

decision Municipal Corporation of Delhi v. Siri Ram 1975 F.A.C. 162 (Delhi High Court) the decision of the Supreme Court in Malwa Co-

operative Milk Union Ltd v. Biharilal 1973 F.A.C. 375 had been referred to. It is further pointed out by the learned Public Prosecutor that in the

decision in Municipal Corporation Delhi v. Siri Ram 1975 F.A.C. 162 (Delhi High Court) it was held that it was not permissible to the courts to

add up the total of milk fat and solids other than fat and that if a sample of milk was to be declared not adulterated in case the total solids present in

the same were equal to the total of solids prescribed under the Rules, i.e.. 12% in case of cow''s milk in Delhi, the legislature would not, instead of

prescribing separate standards for fat and solids other than fat, have prescribed only the standard of total solids to be 12%.

In this regard, the learned Public Prosecutor also makes reference to the decision of the Supreme Court in Babu Lal Hargovindas v. The State

of Gujarat, for showing that even in the case of 1.1 per cent deficiency of solids-not fat, it has been held that the milk was adulterated. He also

refers to the decision in Malwa Co-op. Milk Union Ltd. v. Biharilal 1973 F.A.C. 375 and points out that the Supreme Court has been pleased to

point out that the fat contents in that case appeared to be proportionately less, that it was not clear whether the analyst was able to isolate the fat

content so successfully as not to have left room for the slight variation and the variation in the said case was thus borderline. The learned Public

Prosecutor also points out that the Supreme Court in Municipal Corporation Amritsar v. Hazara Singh 1975 F.A.C. 271, has been pleased to hold

that the Supreme Court judgment in the case of Malwa Co-op. Milk Union v. Bihari Lal 1973 F. A.C. 375, does not lay down that cases of

marginal adulteration should be acquitted. It is also pointed out by the learned Public Prosecutor that in the case before us it is common ground that

the report of the Analyst Ex.P3, shows that the sample of cow''s milk is deficient in solids-not-fat to the extent of at least 40 per cent. This

according to the learned Public Prosecutor, clearly satisfies the requirement for conviction provided for u/s 2(i), Clauses (a) and (1) of the Act.

Therefore, he submits that the facts proved in this case through P.W.1 together with the contents of the Analyst''s report Ex.P3 clearly establish the

offence with which the Respondent herein had been charged and as such the acquittal of the Respondent by the trial court has to be set aside and

the judgment of the trial court reversed.

On a careful and anxious scrutiny I find that the prosecution in this case, through P.W.1, has adduced sample evidence to show that the

offence with which the Respondent herein has been charged his been amply made out in that the sample of milk that had been taken from the

Respondent on the day in question by P.w.1, the Food Inspector, was deficient in the solids-not-fat to the extent of at least 40 percent as per the

report Ex.P3. This is certainly against the standard prescribed under Cls. A.11.1 11. in Appendix B of the Prevention of Food Adulteration Rules,

1955, as per which the cow''s milk shall contain not less than 3.5 pet cent of milk fat and the milk solids-not-fat shall be not less than 8 5 per cent.

As per Ex.P3 in the instant case, the fat content of sample is 4 4 per cent while the content of solids-not-fat is 5.1 per cent. Thus, it has been

established beyond all reasonable doubt by the prosecution that the milk fat found in the sample is in excess of the standard prescribed while the

solids-not-fat is less than the standard prescribed under the Rules mentioned above. Under these circumstances, the offence with which the

Respondent had been charged by the trial court has been fully proved by the prosecution and accordingly I reverse the decision of the trial court

acquitting the Respondent u/s 248(1), Crl.P.C, find the Respondent accused guilty under Ss,7(1) and 16(1)(a)(i) read with Section 2(i) Cls (a) and

(1) as they stood on the date of offence, and convict him thereunder.

Coming to the question of sentence, I find that the Respondent herein is above 18 years, but below 20 years on the date of the offence, as per

the evidence of C.W.1, the Civil Assistant Surgeon and the contents of Ex. Cl report given by him. It is common ground that the Respondent is a

first offender. Taking into consideration the aforesaid special reasons in this case, I am of opinion that the ends of justice would be amply met by

imposing a sentence of fine of Rs. 200 on the Respondent.

In the result the appeal is allowed. The acquittal of the Respondent herein by the court below is set aside and the Respondent is convicted of

the offence for which he was charged, and he is sentenced to pay a fine of Rs. 200, in default to undergo rigorous imprisonment for two months. I

also grant him one month''s time from today for payment of the fine amount which he shall pay in the court of the Sub Divisional Judicial Magistrate,

Koilpatti.