Murlidhar, J. - (1.) Revisionist Sukhlal has been convicted under section 7/16 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.
(2.) The prosecution case was that the revisionist was found selling adulterated cow milk at about 7-30 p. m. on 14-12-76 in Oral town. The Public Analyst's report disclosed that the fat content of the sample taken by the Food Inspector was 4.8% and the non-fatty solid content 6.1%- as against the prescribed 3.5% and 8.5% respectively. Both the courts below have found the prosecution story about the sale of milk established.
(3.) The learned counsel for the revisionist pressed only one point in revision. His contention was that the fat content being in excess of the prescribed standard, the 2.4% deficiency in the non-fatty solids should be ignored. Reliance was placed on Sultan Shah v. State, 1973 FAC 343 and Parsuram v. State of Rajasthan, 1979 (II) FAC 89. In these cases it had undoubtedly been held that where fat contents are in excess mere shortage of non-fatty solids does not justify the conclusion that the milk was adulterated. The high fat content was held to show that water had not been added and the only inference was that either the cow had not been given proper food or the report of the analyst was erroneous. With great respect I am unable to agree with the view that excess of fat content would R.I. out adulteration on account of shortage in non-fatty solid contents. I respectfully concur with the view taken in Megh Singh v. State, 1979 (I) FAC 59, in which Bakshi, J. repelled the above contention. I might also cite the observations of the Supreme Court in M.V. Joshi v. M.U. Shimpi, 1975 (I) FAC 214 , which was a case of curd butter in which moisture content was above the prescribed limit : "If the quality or purity of butter falls below the standard prescribed by the said R.I. or its constituents are in excess of the prescribed limit of variability it shall be deemed to be adulterated within the meaning of section 2 of the Act. If the prescribed standard is not attained the statute treats such butter by fiction as adulterated food though in fact it is not adulterated. To put it in other words by reason of the fiction it is not permissible for the accused to prove that though the standard prescribed is not attained the article of food is not in fact adulterated..........." In the face of these observations, Sultan Shah's case in so far as it says that' The shortage may be due to the food of the cow and not adulteration cannot he said to lay down good law. Moreover, there can be various reasons for simultaneous excess of fat contents and shortage of non-fatty solid contents. Thus one reason can be where the milk is unusually rich in fat content and only limited water is added. Fat would still be above the prescribed standard but non-fat solid contents in which the variation is meagre would go down. Another may be that during testing the top layer of the milk which contains more fat may have been handled. Yet another may be that the wash water of empty milk cans which contained some fat particles attached to the sides was used for adulteration.;