ORDER
S.K. Kader, J.
1. Aggrieved by an order of acquittal of the accused in C. C. No. 311 of 1972 by the Chief Judicial Magistrate, Ernakulam. in a case under the Prevention of Food Adulteration Act, which will hereinafter be called the Act, the Food Inspector of the Cochin Corporation has come up in appeal challenging that order. On September 8, 1971 at about 7 a. m. the Food Inspector, Cochin Corporation (P.W. 1) purchased 660 ml. of buffalo milk for a price of Re. l/- for the purpose of analysis. The mahazar Ex. P-5 was prepared at the spot attested by P.W. 2 and the sample purchased was divided into three equal parts in accordance with the provisions of the Act. One of the samples was given to the accused, another was sent to the Public Analyst and the third one retained by the Food Inspector and later produced in Court. The Public Analyst reported that the sample was adulterated. The accused denied the charge and pleaded not guilty.
2. The learned District Magistrate relying on a decision of the Allahabad High Court reported in 1973 Cri LJ 1413 (All), acquitted the accused.
3. Sri M. V. Joseph, learned advocate appearing for the appellant, attacked this order contending that the acquittal is clearly erroneous and cannot be sustained on the facts and in law.
4. Under the Act different standards are prescribed for buffalo milk and cow milk. As per the standard prescribed, the buffalo milk shall contain 5% of milk fat and 9% of milk solid-not-fat. As per Ex- P-7, report of the Public Analyst, the sample in the case on hand contained 5.8% of milk fat and 7.2% of milk solid-not-fat and therefore did not conform to the standard prescribed and was adulterated. The Public Analyst was also of opinion that the sample contained not less than 20% of (added) water as calculated from the milk solid-not-fat content. The report of the Public Analyst has given all the necessary data. Under Section 13 of the Act. any document purporting to be a report signed by a Public Analyst, unless it has been superseded under Sub-section (3) of Section 13, may be used as evidence of the facts stated therein in any proceedings, under this Act. The accused vendor and also the complainant have been given a right under Section 13 to challenge the correctness of the report of the Public Analyst. The learned District Magistrate has fallen into a grievous error, on the facts and in law, by holding that since the percentage of milk fat in the sample in question was higher- than the minimum prescribed, “the prosecution has a duty to explain as to how, when the milk fat content is higher than the minimum prescribed, the percentage of milk solid-not-fat is below the minimum prescribed” and therefore it is quite possible that the Analyst’s report is erroneous, or that the buffalo from the udders of which the milk was drawn was not given the proper feed and in the circumstances it would not be safe to rely on the report of the Public Analyst that the sample was adulterated. The law on the point has been well-enunciated by the Full Bench decisions in State of Kerala v. Vasudevan Nair 1974 Ker LT 617 : 1975 Cri LJ 97) (FB) and State of Kerala v. Mammu Musaliar, (1974 Ker LT 792) = (1975 Cri LJ 409) (FB). Nobody has a case that the report does not contain the necessary data. If. in a particular case, the Court felt any doubt about the correctness of the result declared in the report or certificate, the Public Analyst or the Director as the case may be, could be summoned and examined to clear the doubt,, and the Court has a right and duty to do so in cases where the Court entertains such a doubt. The short cut of acquittal of the accused on the grounds stated by the learned Magistrate without summoning the expert and examining him to elicit clarifications is not at all a safe rule to be pursued by a Court of law. Under Section 13 of the Act, the Public Analyst is only bound to report, in such form as has been prescribed, the result of the analysis of any article of food sub- mitted to him for analysis. It is not disputed that in this, case the Public Analyst to whom the sample was submitted for analysis by the Food Inspector has submitted his report containing the result of the analysis. In such cases where the report contains necessary data, it is not open to the Court to decline to act upon the result declared by the Analyst on the ground that it does not furnish particulars to explain as to how and when the milk fat content is higher than the minimum prescribed the percentage of milk solid-not-fat is below the minimum prescribed. When once the prosecution proves that the sample of article of food does not conform to the standard prescribed by the statute, the sale of such an article contravenes the provisions of the Act, Two things appear to be clear from Exhibit P-7. The report of the Public Analyst is to the effect that the sample in question does not conform to the standard prescribed for buffalo milk and that the sample also in addition contained not less than 20% of added water. The sale of milk added with water is ‘ by itself an offence. Under Rule 44 of the Rules framed under the Act, notwithstanding the provisions of Rule 43. no person either by himself or by any servant or agent shall sell milk which contains added water. The milk contents whether fat or non-fat-solids may vary depending upon several factors and that is precisely the reason why the law has not prescribed a cast-iron percentage and we find slight variations in the standards prescribed for different States. A reading of Section 2 makes it clear that the possibility of the contents of milk varying because of various factors, has certainly been taken into consideration in prescribing the standard for milk insisting the compliance of certain minimum requirements. It is therefore not proper for a Court of law to go beyond the standard prescribed and assume that in certain circumstances the contents in the milk may go lower and higher than that prescribed in the statute or that the buffalo from the udders of which the milk was drawn was not given proper feed. The standard prescribed for an article of food has to be maintained and strictly enforced and if it is found that it does not conform to the standard prescribed the sale of such food article is punishable under the law.
5. In the light of the decisions of this Court reported in 1974 Ker LT 617 : 1975 Cri LJ 97 (FB) and 1974 Ker LT 792 : 1975 Cri LJ 409) (FB) the order of acquittal of the accused on the grounds referred to by the learned Magistrate cannot be sustained and has to be set aside.
6. The learned advocate appearing for the respondent fairly submitted that in the light of the decisions referred to above the order of acquittal on the grounds mentioned by the learned Magistrate cannot be supported. But, he submitted that the learned Magistrate has not considered and disposed of this case on merits, that the only ground consider ed was the reliability or otherwise of the report of the Public Analyst without giving an opportunity to examine the Analyst and therefore his client may be given an opportunity to summon and examine the Public Analyst and also to adduce such evidence as are necessary in this regard On his side, especially in view of the grave punishment prescribed for the offence a under the Act. I feel that in the interests of justice the appellant should be given an opportunity to examine the Public Analyst, if he So desires.
In the result this criminal appeal is allowed. The order of acquittal is set aside and the case is sent back for re-trial according to law from the defence stage after giving an opportunity to the accused to examine the Public Analyst and also to let in such other evidence as he thinks necessary in support of the contentions.
