The Public Prosecutor vs Co-operative Milk supply Society Ltd., Karaikudi, by Secretary, Duraiswami Pillai

Panchapakesa Ayyar, J.—This is an appeal fled by the State of Madras against the acquittal of the Cooperative Milk Supply Society Ltd. Karaikudi, the first accused in C. C. No. 2686 of 1953 on the file of the Sub Magistrate, Karaikudi, on appeal, by the District Magistrate of Ramanathapuram at Devakottai, on allegedly erroneous and unsustainable grounds. There were in all four accused in C. C. No. 2686 of 1953, namely, the Karaikudi Co operative Milk Supply Society Ltd., by Secretary, (Duraiswami (first accused);one P. Muthalif Pillai, the salesman (second accused: one Duraiswami Pillai, the Secretary of the Co-operative Society (third accused); and one Manikkam Servai, the depot clerk (fourth accused). On 28th August, 1953 P. W. 1, Narayanan Chettiar the Sanitary Inspector of the Karaikudi Municipality, found the second accused, Muthalif, taking milk for sale to Hotel Majestic, a hotel in Sekkalai, He purchased two alludes of milk, as sample, paying the price there for He divided the sample into three bottles and gave one to the second accused, sent one to the Government Analyst for analysis and sent the third to the Court. The certificate of the analyst showed that the milk contained 21 per cent added water, and that it was below the standard of milk prescribed for cow''s milk or buffalo''s milk. It was found eventually (and this is not disputed by any one now) that the milk in question was cow''s milk and buffalo''s milk mixed together in unequal proportions, but with so much of water added that even the standard prescribed for cow''s milk-though much lower than the standard prescribed for buffalo''s milk-was not reached. All the accused had been charged under S. 5(1) (d) of the Madras Prevention of Adulteration Act, read with Rs. 27 and 29 of the Rules prescribed under S. 20 of the Act. When the charge was put to the first three accused, they pleaded "not guilty" The first accused represented to the Court, under S. 6 (3) that it was his employee, the depot keeper, the fourth accused who was solely responsible for buying and supplying the adulterated milk which was found to be not up to the prescribed standard, and that he should be added as an accused and punished and accused 1 let off. Thereupon it was that the fourth accused had been made a party. The trial Court convicted accused 1, 2 and 4. It sentenced the first accused to pay a fine of Rs, 50, the second accused to pay a fine of Rs. 15 and the fourth accused to pay a fine of Rs. 25 It acquitted the third accused who was merely the Secretary of the first accused Society. The fourth accused, I may add, had taken full responsibility for the purchase of the milk in question and for its not being up to the standard prescribed. The first accused Society appealed against its conviction and sentence. The learned District Magistrate of Ramanathapuram, at Devakottai, who heard the appeal, acquitted the first accused on two grounds. The first ground was that R. 22 would not apply where the milk in question was not cow''s milk or buffalo''s milk but was a combination of both. The second was that the accused had been charged with exposing the milk for sale, and not for selling it, and no standard had been prescribed, by the Government for a combination of cow''s milk and buffalo''s milk, at S. 5(1) (d) would apply only to cases of offering for sale, or the sale, of milk which was not up to the standard of purity prescribed by the State Government.

I have perused the entire records, and heard the learned Public Prosecutor, for the appellant, and the learned Counsel for the first accused. The learned Public Prosecutor urged that both the grounds given by the appellate Court far the acquittal of the first accused were erroneous and unsustainable. I have absolutely no hesitation in agreeing with him. To say that R. 22 would not apply to a combination of cow''s milk and buffalo''s milk, when it expressly stipulates that in such cases where it is not possible to say whether the milk is cow''s milk, or buffalo''s milk, or goat''s milk or sheep''s milk, the standard to be applied should be the standard applicable to cow''s milk, is wholly unsustainable. Mr. Murugappa Chettiar, the learned Counsel for the first accused had to admit that the standard of the milk in question here was below the standard prescribed for cow''s milk; but his contention was that R. 22 would not apply to a mixture of cow''s milk and buffalo''s milk, He-relied upon the ruling of Pandrang Row J. in Krishna Aiyar, In re A. I. R. 1939 Mad. 384=49 L.W. 205 but, unfortunately for him, that ruling itself says that in such cases the standard prescribed for cow''s milk should be the standard applied. In that case, cow''s milk and buffalo''s milk had been mixed together and sold a her on analysis, only milk for of 3.4 per cent was found. The prosecution; alleged that the milk sold was buffalo''s milk and should. There fore have contained 4.5 per cent of fat, as prescribed by R. 19. Bit, actually, on the evidence, in was found that it was not buffalo''s milk pure and simple, and that cow''s milk also had been added. So, the standard applicable was held to be the standard prescribed in R. 22,that is the standard applicable to cow''s milk. 3 per cent fat is the standard prescribed for cow''s milk under R. 16. As the milk in question contained 3.4 per cent far, the learned Judge held that no offence had been committed. But, here, in his anxiety to make money, the person who adulterated the milk had poured so much water that even the standard prescribed for the cow''s milk could not be reached, though it was a mixture of cow''s milk and buffalo''s milk. In other words, it was a case of milk added to water instead of water added to milk It is clear to me that the ruling of Pandrang Row J. far from supporting the contention of Mr. Murugappa Chettiar will go clearly against him, and make R. 22 applicable to all cases of mixture of buffalo and cow''s milk, and indeed of buffalo''s, cow''s, goat''s and sheep''s milk What will happen if camel''s milk, reindeer''s milk, yak''s milk, donkey''s milk, and mare''s milk are also added need not be decided now, though R. 22 is comprehensive enough to cover any case where it cannot be indicated with precision by any person that the milk sold or exposed for sale is cow''s milk or buffalo''s or goat''s milk or sheep''s milk. In other words, in all cases of mixture of these milks the standard applicable to cow''s milk will apply.

Mr. Marugappa Chettiar relied on another decision of Pandrang Row J. in K. S. Ambi Aiyar, In re A. I. R. 1939 Mad. 375 - 49 L.W. 202 That was a case of a sweet called Khajur, where 80 per cent of fat, not derived from milk or cream, was detected. The learned Judge held that as the Government had not laid dean any standard in respect Khajurs, S. 5 (1) (d) would not apply But here, the Government has laid down a standard for a mixture of cows and buffalo''s milk, namely, the standard oath able for cow''s milk, under R. 22. The lower Court fell into an error that no standard had been prescribed because it held that R. 22 would not apply when buffalo''s milk and caws milk were mixed up. It would indeed be strange if a milk vendor were allowed to escape all standards by mixing up cow''s milk and buffalo''s milk. So this argument too fails.

But Mr. Murugappa Chettiar raised a third argument which will save his client from conviction, namely, that the Co-operative Society had, as employer, acted under S. 6 (3) of the Madras Prevention of Adulteration Act, and had accused 4, the actual vendor who bought the adulterated milk in question and sold it, brought on record as an accused and proved that the fourth accused had committed the offence without accused sad knowledge consent or connivance, and, so, as the fourth accused had been convicted, on his admission of the offence, the first accused was entitled to be acquitted. The learned Public Prosecutor had little to say against this. The tidal Court discussed the applicability of S. 6 (3) and held that the first accused was not entitled to the benefit of it as, according to it, it had not exercised "due diligence '''' by surprise visits, circulars etc. I cannot agree. The fourth accused was not the actual vendor, and the offence had been committed, according to the solemn averment of accused I, without the knowledge and consent or connivance of the first accused, A Co-operative Society like the first accused, with eleven depot clerks, depends on the depot clerks. It had supplied lactometers, and issued general instructions to them. the lower appellate Court, in its reliance on the two erroneous grounds for acquitting the first accused, omitted to discuss this third point. It appears to me that, in the light of the evidence let in, the first accused was entitled to be acquitted under S. 6 (3) it had been responsible for bringing the fourth accused, the concerned depot clerk, on record as the person employed by it and as the person who had actually committed this offence without its knowledge, consent or connivance. It was not proved that the offence was committed with its knowledge, consent or connivance, and there was nothing to show that that plea was false. As urged by Mr. Murugappa, this was the first case against A.1it was not proved to be a case of " Co-operative watering " in which accused I too had a share in the offence and the wrongful gain.

In all such cases, I consider it desirable that Co-operative Societies and other responsible institutions should be given the benefit of S. 6 (3) and encouraged to bring the actual culprit on record, and getting him suitably punished, and should not when they do this, be also deprived of the privilege of their being acquitted under that section, especially in doubtful cases like this. The Cooperative Society will, doubtless, be doubly careful hereafter. In the result, therefore, while holding the two grounds given by the appellate Court for acquitting the first accused to be erroneous and unsustainable, I confirm the acquittal on the third ground raised by Mr. Murugappa Chettiar and dismiss the appeal on that ground alone.