M.M.Gupta - (1.) THIS appeal has been filed by the Nagar Mahapalika, Agra, against the acquittal of respondent Vishambhar Nath u/Sec. 7 read with Sec. 16 (1) (a) (i) of the Prevention of Food Adulteration Act. The respondent is a Halwai who also sells boiled milk in Numner, Police Station Sadar, within the Nagar Mahapalika limits, Agra. On 30-10-1971 at about 8 p. m. Sri Kunwar Singh, Food Inspector, Nagar Mahapalika, Agra, who inspected the shop of Vishambhar Nath and found him selling cow's milk which was boiling in a Karahai (pan). He gave him notice under Rule 12. The notice is Ex. Ka-1. The Food Inspector Kunwar Singh purchased 660 mililiters of milk from the respondent after paying 90 paise for its price. He duly obtained a receipt. That receipt is Ex. Ka-2. That milk was divided into three separate samples and he dropped 18 drops of formalin of 40% strength in each phial of the samples. The phials were thereafter sealed. Each of the sample phials was sealed and signed by the Food Inspector and the respondent. One of the sample phials was given to the respondent. The other was sent to the Public Analyst and the third was retained in the office of the Swasthya Adhikari, Nagar Mahapalika, Agra. According to the Public Analyst the sample contained :- "Fat 9 2% Non-Fatty Solids 7.1%" He was, therefore, of the opinion that the sample milk was deficient in non- fatty solids contents by about 16%. No change had taken place in the constituents of milk which would have interfered with the analysis.
(2.) THE complaint was filed against the respondent after obtaining the sanction of the Nagar Swasthya Adhikari, Agra, on 13-4-1972. After the prosecution was launched, on the application of the respondent, the sample with the respondent was sent for the opinion of the Director, the Central Food Laboratory. The [Director of the Central Food Laboratory iin his report dated 12-7-1972 reported the following result of the analysis by him : "Milk Fat 3.2% Milk Solids no Fat 7.7% Formalin 0 1 ml. per 100 ml. of milk.'' It would thus be seen that there was great divergence between the report of the Public Analyst and that of the Director Central Food Laboratory. The respondent claimed that he was not selling milk on that particular date. The shop was closed as his son was ill. He had taken from a milk- vendor one litre of milk for his son who was ill on that date. The sample was forcibly taken by the Food Inspector. Be denied that he received any such notice or was paid the price of any such milk. He also claimed that only one phial was sealed in his presence and only four drops of medicines were dropped in it.
(3.) THE prosecution examined the Food Inspector (PW 1), Arjun Das, Safai Hawaldar (PW 2), Prakash Chandra Agrawal, (PW 3), a clerk in the office of the Swasthya Adhikari who had brought the Licence Register to show that the respondent was a licensed milk vendor. PW 4 Jagdish Prasad did not support the prosecution case. THE two prosecution witnesses who support the case are PW 1 Kunwar Singh, Food Inspector and PW 2 Arjun Das. THEir evidence, in my opinion, does not leave any room for doubt that on 30-10-71 Kunwar Singh Food Inspector purchased the sample milk from the respondent. THE payment of price is also established by their testimony. THE respondent does not deny the taking of the sample either. He claims that he had purchased the milk from a milk-vendor for his son THE learned counsel for the appellant has pointed out the discrepancy that in the statement of Kunwar Singh the date of taking sample is mentioned as 30-9-1971. This date is given as 30-10-1971 in the statement of Arjun Das. In my opinion, it was a clerical error as the date of taking the sample was never disputed by the respondent. The only question that arises is whether the respondent is guilty of the offence of selling adulterated milk. The sample was taken on 30-10 -1971. It was sent to Public Analyst who found fat 9.2 per cent and non-fattish solids 7.1 per cent. According to the prescribed standard under Rule 5 (AB) A 11 0111 the fat ought to be 3.5 per cent and non-fat solids 8.5 per cent. If the report of the Public Analyst is taken into consideration, the sample milk was deficient in non-fatty solids by 1.4 per cent but according to the view taken by our High Court if the aggregate of the fat and non fattish solids percentage correspond to the aggregate of the prescribed total strength then the conviction cannot be based on it-See Rajan Lal v. State, 1975 AWC 660. More particularly in this case when the fat contents exceeded by 5.7 per cent it guaranteed the purity of the milk. However, under some misapprehension the sample was sent by the respondent to the Director, Central Food Laboratory and he has found the fat content only 3.2 percent and non-fat solids 7.7 per cent. This means that the fat contents were short by 0.3 per cent and non-fat solid contents by "0"8 per cent. The Director, Central Food Laboratory, however, mentioned in his report the quantity of formalin found in this sample was 0 1 mililitre per 100 mililitre of milk. According to the prescribed strength of formalin added to the milk should have been 0.4 mililitre per 100 mililitre of milk. Thus, it is obvious that the preservative used was lesser in strength than that was required by the prescribed standard. The sample, as already stated above, was taken on 30-10-71 It came to be examined by the Public Analyst on 8-12-1971 but it was examined by the Director Central Food Laboratory on 12-7-1972, that is more than 8 months after the sample was taken. The learned counsel for the appellant has, however, contended that since the Director, Central Food Laboratory has reported that the sample was fit for analysis, the fact that the lesser quantity of formalin was added should not make any difference.;