- (1.) THE petitioner in this case has moved for quashing a criminal proceeding which is pending against him under secs. 7 and 16 of the Prevention of Food Adulteration Act (No. 37 of 1954) read with Appendix D, item A. 11-01-03.
(2.) THE prosecution is based on the allegation that the petitioner was found in possession of milk which was mixed milk of cow and goat and did not fulfil the requisite standard as required by the law. A sample of the milk was taken by the Food Inspector who sent it for examination by the Public Analyst, and a report has since been submitted by the Public Analyst also. THE Food Inspector admits that indication was given to him by the petitioner that the sample of milk taken by him consisted of mixed milk of cow and goat and this fact has been noted also on the inventory prepared by him. THE prosecution contends that in a case of this nature where the milk is mixed milk, the standard legally required should be that of buffalo milk and since it did not fulfil that standard the petitioner was guilty of an offence under the above sections of the Prevention of Food Adulteration Act. The learned Sessions Judge appears to think that Appendix D, item A 11-01-03 would apply to such a case and the standard, as contended by the prosecution, should be the standard prescribed for buffalo milk. The relevant part of the item runs as follows - "where milk, other than skimmed milk, is sold or offered for sale without any indication as to whether it is derived from cow, buffalo, goat, or sheep, the standard prescribed for buffalo milk shall apply. " The contention of the learned counsel for the petitioner is that this provision should not apply to the present case because in this case admittedly the indication is that the milk was derived from cow and goat and it was not without any such indication. There appears to be good-deal of force in the contention; but then one is faced with the situation that in the case of mixed milk a person would escape punishment even though he may have adulterated the milk. The learned counsel for the petitioner, however, points out that although there is no standard prescribed for 'mixed milk' in the Prevention of Food Adulteration Act of 1954 or in any Rules made thereunder, by virtue of sec. 25 (2) of the Act, we have to refer to the Marwar Pure Food Rules, 1946, where the standard is prescribed for 'mixed milk'. Sub-sec. (2) of sec. 25 of the Prevention of Food Adulteration Act is as follows - "notwithstanding the repeal by this Act of any corresponding law all rules, regulations and bye-laws relating to the prevention of adulteration of food, made under such corresponding law and in force immediately before the commencement of this Act shall, except where and so far as they are inconsistent with or repugnant to the provisions of this Act, continue in force until altered, amended or repealed by rules made under this Act. " The Rules in force immediately before the commencement of this Act were the Marwar Pure Food Rules, 1946, and in the Schedule to these Rules item 5 shows that 'mixed milk', that is a mixture in any proportion of cow's and buffalo's milk, should have milk fat content not less than 4% or milk solides not fat not less than 8% or both. The note to that item further shows that goat's milk should be sold as it is and not mixed with any other milk otherwise it shall be treated under 'mixed milk'. Here goat's milk appears to have been mixed with cow's milk and, therefore, it has to be treated as mixed milk and therefore as the item shows the fat content should not be less than 4%. The report of the Public Analyst shos ; that the fat content of the sample in question was 4. 5% and solid non fat 9. 6%. Therefore, obviously it was more than the required standard and it cannot be held within the meaning of this Rule that there was any adulteration of the milk so as to amount to an offence within the meaning of the Prevention of Food Adulteration Act. These Rules are not inconsistent with the Rules as framed under the Prevention of Food Adulteration Act of 1954 and, therefore, in a case where the Rules framed under that Act are silent, as it is in a case of this nature, obviously the previous rules would apply and the contention of the learned counsel for the petitioner must, therefore, prevail. Ordinarily, of course, quashing of a prosecution is ordered on the facts disclosed in the complaint petition itself. If no offence is made out on the facts alleged, the prosecution cannot stand. In this case one has to go further and look to the report of the Public Analyst also. Since the application has been admitted and my attention has been drawn to the report of the Analyst, it would be an abuse of legal process if I refuse to interfere at this stage and direct the prosecution to continue. On the strength of the report given by the Public Analyst, the prosecution is bound to fail. I accordingly allow this application and quash the proceedings pending against the petitioner. .;