Murildhar, J. - (1.) THE applicant Ashiq has been convicted under section 7/16, Prevention of Food Adulteration Act and sentenced to six month's RI and a fine of Rs. 500/- in default S. I. for two months.
(2.) THE prosecution case was that on 26-5-1977 at about 10 A. M. the applicant was carrying some cans of milk for sale. A sample of milk was obtained by the Pood Inspector and on alaysis by the Public Analyst it was found containing only 3.8% fatty solids as against the prescribed 4.5% for buffalo milk. THE applicant was accordingly prosecuted. THE defence was a denial and the applicant pleaded that no sample was taken from him and it was false case. Both the courts below have disbelieved the defence and accepted the prosecution evidence regarding taking of sample. The only point canvassed in revision is that the milk in question should not have been judged by the standard df buffalo milk. It is pointed out that the fat content as well as non-fatty solids content are in accordance with the prescribed standard for cow milk. It is emphasised that in the notice in Form 6 as well as the receipt for the sample the Food Inspector described the article of food as merely milk and not as buffalo milk. It is further pointed out that the receipt shows that only 90 paise were paid for 750 miligrams and that this meagre price too would go against the sample (being of buffalo milk. On the other hand the prosecution relied upon the Note to Para A. 11.01.11 of Appendix B where it is stated "when milk is offered for sale without any indication of the class the standards prescribed for buffalo milk shall apply.'' So the question for consideration is whether the milk can bet said to have been offered for sale without any indication of the "class in the present case. This involves consideration of the larger question as to how is the class of milk offered for sale to be indicated for the purposes of the aforesaid Note. The ground may be cleared by consideration of the oral evidence. The Inspector in his evidence stuck to describing the article as milk and stated nothing which might show that the vendor had represented it to be buffalo milk or that he had asked the vendor to supply buffalo milk. Thus, his oral evidence is in accordance with Form 6 and the receipt. P.W. 2 Ram Charan Singh, a witness to the sample taking, did state in his evidence that it was buffalow milk but in the face of the Food Inspector's evidence his evidence must clearly be discarded especially when he has not indicated any baas for his asserting it to be buffalo milk.
(3.) TO revert to the question in hand, when can it be said in a prosecution under the Prevention of Food Adulteration Act that "Milk is offered for sale without any indication of the class ?." The Rules do not prescribe any manner for indication of the class. In Part VII of the Rules there are certain rules about labels on articles of food but these would be applicable only to packaged foods and not to food article sold loose. In the absence of any specific provision of law it will not be proper to imply a legal duty on the vendors selling articles of food loose to place any labels on the containers in which the articles are kept or carried. This would also not accord with the prevailing trade practice in which such labels are seldom found even in shops. Milk is usually carried by vendors in cans and buckets and the class of milk therein may change from day to day. Therefore, any requirement of labelling the can with the class of milk would be a major duty which could not be imposed except under an express and specific legal mandate. When there is no label on the container the ordinary method of deciding the class of milk being offered for sale may be any one of these (1) The vendor may himself give out the class voluntarily or in answer to query of some customer including the food inspector, (2) There may be an implied representation by the vendor such as when the customer wants a particular class and the vendor by his conduct affirms that the same class was being sold and (3) the customer may know from the appearance or otherwise believe what was the class of milk being sold and buy it in that belief without inquiring as to the class. In practice the third alternative will be rare and generally whether the vendor has buffalo milk or some other kind of milk in his containers would come to be known by either the vendor volunteering this information or the customers eliciting it by an appropriate question. It would follow that until there is some evidence of this kind it would not be possible to say what class of milk (buffalo, cow or some other kind) was being offered for sale. If the customer buys without caring to ascertain or under some belief of his own it will not be a case where then; is no indication of class. Before failure to indicate there should be an occasion to indicate. There is no such occasion when the purchaser buys without caring to ascertain the class or asking for a particular class because there is no legal (obligation on the vendor to disclose the class suo-moto when any one wants to buy the article. It will, therefore, not be possible to say that the class of milk is not indicated in cases where the vendor says nothing and there is no evidence or any attempt to elicit the same. Only cases where notwithstanding such attempt the vendor chooses not to disclose the class of milk or is unable to disclose it will be correctly the class offered for sale without indication of the class. This view is fortified by Rule 9 (f) which imposes a duty on the Food Inspector "to make such enquiries and inspections as may be necessary to detect the manufacture,, storage or sale of articles of food in contravention of the Act or Rules framed thereunder." The Food Inspector has, therefore, to find out whether the milk is being offered for sale as buffalo milk, cow milk or of any other class of milk or merely as milk without any indication of the class. On the evidence in the present case there is nothing to show that the vendor was avoiding to give the class of the milk. The evidence shows that the Food Inspector never cared to find out what class of milk the applicant claimed to be carrying. In that case it would not be possible to contend that the milk was offered for sale without any indication of the class and fall back on the note to apply the standard for buffalo milk. In Hari Krishna v. State, 1980 ACrR 13, Hyder, J. took a similar view. The case before him was of curd. The learned Judge observed that under Rule 9 the Food Inspector had to make necessary inquiries form the vendor. Further that "if an making such enquiries the vendor does not make any disclosure only then the question of raising a presumption under the above said Articles of Schedule 'B' of the Rules would arise. On the other hand, if the Food Inspector does not; make any enquiry or if the vendor voluntarily does not state that the milk or curd as the case may be, is buffalow milk there can be no question of raising a presumption referred to in the aforesaid article.'' I am in respectful agreement with this view.;