MUFTI, J. - (1.) THE petitioner, Azad Ahmed was tried in the court of Judicial Magistrate, Lucknow, for an offence under Section 16(l)(a)(i) read with Section 7 of the Prevention of Food Adulteration Act, 1954. The charge against him was that, on 12.4.1974, he had exposed for sale milk, consisting of cow's milk and buffalo's milk mixed together in equal proportion, which, on analysis, did not conform to the prescribed standard and was adulterated. On consideration of the evidence, the learned Magistrate came to the conclusion that the milk sold contained 4.1% fatty solids and 7.4% non -fatty solids, compared to 4.5% fatty solids and 8.5% non -fatty solids prescribed for mixed milk. Accordingly, he convicted the applicant of the offence with which he was charged and sentenced him to undergo R.I. for six months and to pay a fine of Rs. 1000/ -, in default, to undergo further R.I. for ten months. On appeal, the learned Sessions Judge, Lucknow, took the view that the standards prescribed for buffalo milk would apply and, so judged, the milk sold should have contained 6.0% fatty solids and 9.0% non -fatty solids as against 4.1% fatty solids and 7.4% non -fatty solids found in it. On this reasoning, he upheld the conviction and the sentence imposed on the applicant by the Magistrate. Hence this revision.
(2.) THE learned Counsel for the petitioner contended that the applicant was prosecuted on the ground that he had not maintained the standards prescribed for mixed milk. But as a matter of fact no standard had been prescribed for such milk on the relevant date, and, as such, the courts below were not right in convicting him. He particularly relied on a decision of the Supreme Court in M. V. Krishnan Nambissan v. State of Kerala (AIR 1966 SC 1676): (1966 Cri LJ -1347). The standards of quality of various articles of food including milk are defined in Appendix 'B' to the rules framed by the Central Government under Section 23 of the Act. Appendix 'B', in so far as relevant, provides: - "A.11.01. Definitions: A.11.01: Milk is the secretion derived from complete milking of a healthy milch animal. It shall be free from colostrum. Milk of different classes and of different designations shall conform to the standards laid in table below Item A.11.01.01. A.11.01.11: - Standards for different classes and designations of milk shall be as follows: - Class of Milk. Designations. Locality. Minimum percent. Milk fat. Milk solid non fat Buffalo Milk. Raw, Pasteurised, Boiled, Flavoured and sterilised. Uttar Pradesh 6.0 9.0 Cow Milk -do - Uttar Pradesh 3.5 8.5 Goat or Sheep Milk -do - Uttar Pradesh 3.5 9.0 Standardised or Mixed - do - All India 4.5 8.5 Milk Recombined Milk All India 3.0 8.5 Toned Milk All India 3.0 8.5 Toned Milk Double All India 1.5 9.0 Skimmed Milk - do - All India Not more than 0.5 percent. 8.7 NOTE : (i) When milk is offered for sale without any indication of the class, the standards prescribed for buffalo milk shall apply. (ii) ... A. 11.02.04 : - Dahi or Curd means the product obtained from pasteurised or boiled milk by souring, natural or otherwise, by a harmless lactic acid or other bacterial culture. Dahi may contain added cane sugar. Dahi shall have the same minimum percentage of milk fat and milk solids non -fat as the milk from which it is prepared."
(3.) IT is true that in its present form Rule A.ll.01.11 prescribes standard of purity for mixed milk, but it was not there on 12.4.1974, when the applicant exposed the milk for sale. It came to occupy the field at a later date. The entry as regards 'mixed milk' found its way into Rule A.ll.01.11. by virtue of notification No. GSR 205 dated 13.2.1974 and came into force from 13.5.1974. It seems that this fact was not brought to the notice of the learned Magistrate. Whatever the reason, it is clear that the learned Magistrate was not justified in relying on the prescribed standard for mixed milk, which was not effective on the relevant date. In appeal, the learned Sessions Judge perhaps noticed this infirmity in the judgment of the learned Magistrate, although he does not say so. But the fact remains that he preferred his own reasoning for upholding the decision of the Magistrate. He referred to Note (i) appended at the end of Rule A.ll.01.11 and observed: - "The word 'class' used in this note, in my opinion, will mean only either of the three classes which have been specified in the table produced above the note which gives class of milk in the first column. In column No. 1 meant for class of milk, the rules mentioned buffalo milk, cow milk and goat or sheep milk. Even if the appellant was selling a mixture of cow milk and she -buffalo milk, it has to be said that it was of no class as mentioned in column No. 1 and, therefore, the standard of she -buffalo milk has to be applied. Class mentioned in the note does not mean proportion of milk as has been argued by the learned Counsel for the appellant. This milk, which was a mixture of cow milk and she -buffalo milk, according to the appellant's contention, cannot certainly be said to be of any of the three classes mentioned in column No. 1 of the table given in the Rules (Para A.ll.01.11)." ;