D.P.DESAI, M.K.SHAH - (1.) This matter has been referred to the Division Bench by Ahmadi J. and it involves a question about the effect of a certificate of the Director of the Central Food Laboratory under sec. 13(2) of the Prevention of Food Adulteration Act 1954 hereinafter referred to as the Act on the prosecution of a person for the offence of adulteration of cows milk where the said certificate while holding that the milk was adulterated differs from report of the public analyst as regards the particular prescribed standard which is contravened.
(2.) The following facts will illustrate this question. Samples of cows milk sold by the respondent to the Food Inspector of the Ahmedabad Municipal Corporation were taken on April 24 1975 One of these samples was sent to the Public Analyst and the report of the Public Analyst disclosed total solid non fat content 8.5% and fat content 3.2%. It further disclosed that fat dificiency was 8% confirmed by ether extraction. Under Item A. 11.01.11 of Appendix B to the Prevention of Food Adulteration Rules 1955 two standards are prescribed inter alia in the State of Gujarat both of which must be satisfied in respect of cows milk. According to these two standards the fat content of cows milk should not be below 3.5% and the milk solid not fat must not be below 8.5%. Thus in the present case as per the Public Analysts report there was deficiency in the prescribed standard in the fat content only and that is how the article of food fell below the prescribed standard as contemplated by clause (b) of sec. 2 of the Act as it was then in force prior to its amendment by Act 34 of 1976 The written consent of the Health Officer to institute prosecution on the basis of this report of the Public Analyst was obtained by the Food Inspector under sec. 20 of the Act and that is how the prosecution was instituted. In view of this written consent the Court took cognizance of the offence which in this case was punishable under sec. 7(i) read with sec. 16 (1) (a) (i). During the trial the respondent exercised his right to get one of the samples of milk produced in the Court examined by the Director of the Central Food Laboratory under sec. 13 of the Act. The Director of the Central Food Laboratory gave a certificate under sec. 13(2) of the Act showing the following result: Milk fat 4.5% Milk solid not fat 6.2% According to this certificate the sample did not fall below the prescribed standard of milk fat but it fell below the prescribed standard of milk solid not fat. The Director also therefore opined that the sample was adulterated. Thus there was antithesis as regards the result of the analysis between the Public Analyst and the Director in respect of the prescribed standard which was controverted. It is obvious that the certificate of the Director supersedes that of the Public Analyst and is made at the same time final and conclusive of the fact stated therein. A contention in this peculiar situation was advanced by the accused respondent before the trial Court and it was this; that the accused cannot be convicted on the ground of fat deficiency which obviously is the case here; but that he also cannot be convicted on the ground of milk solid non-fat deficiency because the Medical Officer of Health had not sanctioned prosecution of the accused on the ground of milk solid non-fat deficiency. Thus the contention was that this prosecution in respect of deficiency of milk solid non-fat is without proper sanction. The learned Magistrate accepted this contention and acquitted the accused. Hence this appeal.
(3.) Ahmadi J. while hearing this appeal found that in a case of this type a view was taken by Thakkar J. in Criminal Appeal No. 324 of 1976 decided on February 17 1977 that the accused cannot be convicted because he was not prosecuted on the allegation that there was deficiency in milk solid non-fat and also because sanction was granted in the con- text of this accusation. Thakkar J. observed:- The report of the Central Food Laboratory was however to the effect that the percentage of the milk solid non-fat was 8% and not 8.5% But then respondent No. 1 was prosecuted on the allegation that there was deficiency in the milk fat only. He was not prosecuted on the allegation that there was deficiency in the milk solid non-fat. So also the sanction was granted in the context of this accusation. In the absence of sanction in this behalf and the complaint in this behalf respondent No. 1 could not have been convicted for an offence in this behalf. The learned Magistrate was therefore perfectly justified in acquitting respondent No. 1. It was submitted before Ahmadi J. on behalf of the State that this view of Thakkar J. requires reconsideration and the matter should be referred to a larger Bench. Ahmadi J. agreeing with this submission has referred the matter to the Devision Bench. ;