P.N.Bakshi, J. - (1.) THE applicant has been convicted under Section 7/16 of the Prevention of Food Adulteration Act and sentenced to six months R. I. and a fine of Rs.. 1000/-. In default of payment of fine he is to undergo further rigorous imprisonment for a period of three months. His conviction and sentence have been maintained in appeal by the Sessions Judge, Saharanpur. Hence this revision, which was admitted on the question of sentence only.
(2.) THE prosecution case is that the Food Inspector on 24th July, 1974 at about 10 a. m. visited the shop of the accused situate in Chowk Purani Mandi, Saharanpur and purchased 660 mls. sample of warm mixed cow and buffalo milk in the proportion of 50 per cent for Rs. 1/50 in accordance with the procedure prescribed by law. He gave a notice to the accused in Form VI, which is Ex. Ka-1 on the record and also obtained a receipt in token of payment which is Ex. Ka-2 on record, the said sample was divided in three phials and duly sealed on the spot. One phial was given to the accused. One of the phials, which were: in possession of the Food Inspector, was sent for analysis to the Public Analyst, whose report indicated that the sample contained 3-6 per cent fat and 12.3 per cent non-fatty solids. After obtaining the requisite sanction the applicant has been prosecuted and convicted as above. Both the courts below have on a consideration of the evidence on record held the prosecution case fully established. This revision was admitted on the question of sentence only, but the learned counsel has argued the same on merits. The sole point which has been argued by the applicants' counsel is that there is no standard prescribed for boiled milk. He has elaborated his argument by urging that if milk is being boiIed in a pan, then the water contents evaporate and the fat accumulates on the surface and in such milk the constituents of fatty and non-fatty solids are bound to be different to the standard prescribed. I have very carefully examined the argument as well as the oral and documentary evidence on the record.
(3.) IT is no body's case that the sample of milk which was purchased by the Food Inspector on the date in question was being boiled in Kadhayee and that, the sample of milk was taken from the Kadhayee in boiling state. The statement of the Food Inspector which has been relied upon by the courts below and which I have no reason to disbelieve, is to the effect that he had purchased warm mixed cow and buffalo milk "Gaay Bhains ka mila huwa garam doadh baichtay huyay paya". Suspecting the milk to be adulterated, he disclosed his identity and gave a notice of his intention to purchase the sample of the milk, to the accused, in Form VI vide Ex. Ka-1. This has been signed by Kashi Ram applicant. The entry in this receipt is "Gaay Bhains ka ga- ram kiya doodh 50 per cent." In the receipt Ex. Ka-2, which has also been signed by Kashi Ram the description of the milk is also given as "Gaay Bhains ka garam kiya doodh wazan 660 ml. 50 percent". Reading the statement of the Food Inspector along with the documentary evidence, I have no doubt that the specification of milk which was purchased by the Food Inspector was such as had undergone a process of heating. In common parlance such milk is very often known as "Kadkayee ka paka doodh", or "Garam Doodh" which is very often sold at the milk- vendor's shop. IT would thus not be correct to argue that in the instant case the sample of milk was taken in a boiling condition, while it was in the process of being boiled in the Kadhayee, and had undergone a change in its constituents. Under serial no. A.11-01-04 of Appendix B, 'boiled milk' means milk which had been brought to boil. For such milk also a standard has been prescribed under serial no. A-11-01-11. In my opinion, milk which had been once brought to boil and which is subsequently sold while it is still warm 'Garam' cannot be excluded from the perview of the expression 'boiled milk' as described above. By notification no. GSR 205 dated 13/2/1974 which became effective from 23rd May, 1974, a standard has been prescribed for "standardised or mixed milk which is raw, Pasteurised, boiled, flavoured and sterilised." It must contain 4-5 per cent fat and 8.5 per cent non-fatty solids. As such even milk which has been boiled and sold subsequently must prescribe to the requisite standard. It would be an impossible task if the standard to be prescribed varies with the reading of the thermometer. Since sometimes the milk may be boiling hot, hot, tolerably hot, warm, lukewarm, tepid or cold, after the process of boiling had been undertaken. The legislature in its; wisdom has sought to include such milk in the category of boiled milk, as laid down in serial no. AT 11-01-04 of Appendix B. In my opinion, therefore, no illegality has been committed by the courts below in holding that the fat contents of the boiled milk 'Garam Doodh' which was purchased by the Food Inspector was deficient according to the prescribed standard.;