S.S. Dewan, J.
1. This appeal preferred by the State of Haryana against the acquittal of Harpat and another on a charge under Section 16(l)(a)(i) of the Prevention of Food Adulteration Act, 1954, is concluded in favour of the appellant by the Full Bench judgment of this court in The State of Punjab v. Teja Singh, 1976 (11) FAC 44.
2. On the 4th of October, 1971, Shri S.P. Malik, Government Food Inspector, along with Dr. S.P. Tyagi and Hans Raj was present at Sohna Adda Chowk, Gurgaon, on a routine round for taking samples of milk from the vendors. Harpat respondent came there whilst in possession of 50 Its. of cows' milk for public sale. The complainant after disclosing his identity, purchased 660 mls. of milk from the said respondent after complying with all the necessary formalities prescribed under the Prevention of Food Adulteration Act, 1954 (hereinafter called the Act) and the Rules framed thereunder. The sample milk was divided into three equal parts in three separate dry and clean bottles after adding the necessary preservatives in the shape of formalin thereto. One such sealed sample was duly handed over to the respondent after obtaining a receipt therefor. Subsequent chemical analysis vide report Exhibit P.D., disclosed that the milk sample purchased from the respondent, was adulterated being 9% deficient of the minimum prescribed standard in milk solids not fat.
3. The complainant, besides himself coming into the witness box as P.W. 1, examined Dr. S.P. Tyagi, P.W. 2 and also proved the necessary documentary evidence with regard to the purchase of sample from Harpat respondent. In his statement under Section 313, Code of Criminal Procedure, Harpat respondent denied the prosecution allegations and pleaded false complicity in the case, but led no evidence in defence.
4. Even whilst accepting the prosecution case and the report, Exhibit PD, as regards the analysis of the milk, the learned Chief Judicial Magistrate, Gurgaon, relying on the decisions in Babu Lal v. The State and another, 1979 (1) FAC 267 and Deoki Nandan v. The State, 1979 (1) FAC 274 rather cryptically acquitted Harpat respondent for the following reasons
"..........that if the fat contents found in the milk solid is much higher than the minimum prescribed by the Rules, it necessarily leads to the inference that no water has been added to the milk and in such a case, the mere circumstance that the non-fatty solid contents were below the standard prescribed by the Rules can only justify the inference either that the cow from the udders of which the milk was drawn was not given the proper feeding or that the Public Analyst's report was erroneous but not an inference that the milk in question was not pure. The Government Food Inspector did not contest this legal proposition and frankly conceded the weakness of his case. As a result, the complaint stands dismissed and the accused is acquitted."
5. It is evident from the above that the aforesaid acquittal is based on the ground that the sample conformed to the prescribed standard of fat contents but it was found to be deficient in non-fatty solid contents. This reasoning has been squarely depreciated in Teja Singh's case (supra). The meaningful questions clearly posed in the Full Bench authority were : -
"1. Whether it is permissible to add the percentages of the various constituents of milk disclosed by the Public Analyst and thereafter to deduce a conclusion therefrom about the overall deficiency or otherwise of the milk from its prescribed standards
2. Whether the Court is entitled to assume a slight or reasonable margin of error in the conclusions recorded by the Public Analyst during the course of analysis of the milk
3. Whether a negligible or marginal deviation from the prescribed standard laid down by the Act can be ignored and acquittal recorded on that basis
After an exhaustive discussion of all the aforesaid three questions, an answer '& in the negative was returned authoritatively."
6. Form the above, it is manifest that the trial court was not warranted to have recourse to the process to which it had resorted for holding Harpat respondent not guilty of the charge. Once the chemical analysis of the sample deviated from the standard prescribed by the statute, it was neither open to the trial court to hold that the same in its opinion was marginal or to indulge in the addition or sub-striction's of the ingredients disclosed by the chemical analyst to come to a conclusion that the overall deficiency could be ignored. In the instant case, it was cows' milk and according to the standard prescribed under the Act, it should have contained 4% milk fat and 8.5% milk solids not fat. According to the Public Analyst's report, the sample was found to contain 6% milk fat and 7.7%, milk solids not fat, and thus it was adulterated being 9% deficient of the minimum prescribed standard in milk solids not fat. The milk fat contents were 2% more than the prescribed standard. On the facts of this case, therefore, there is no choice but to hold the respondent guilty of the charge under S. 16(1 )(a)(i) of the Act.
7. The argument which has been laboured with little persistence on behalf of the respondent is that where the milk fat is more than the required standard then there is no adulteration. It is contended that the report, Exhibit P.D , is silent as to whether the Public Analyst had thoroughly shaken the sample milk and it was stirred before conducting the analysis to come to that conclusion. To buttress these arguments, he has placed reliance on a Single Bench decision in Sultan v. The State of Haryana, 1981 (2) FAC 116 [LQ/PunjHC/1981/498] , wherein M.M. Punchi, J., while accepting the revision held in the following terms : -
"The Public Analyst was not examined as a witness, but his report was tendered and read into evidence-the report Ext. P.D. is silent as to whether sample was thoroughly shaken and the milk was stirred before conducting the analysis to come to that conclusion. No data is available on the record to indicate whether addition of preservatives to the sample milk had the attribute of preserving it in the shaken and mixed form and for the purpose of maintaining its accurate trustworthiness. Everything seems to be left to the Public Analyst but his report has not made the court any wiser whether the contents of the sample were partially or wholly consumed in the an analysis and whether shaken before hand to make it consistent in its constituents. It may be that the upper layer of the milk alone was examined resulting in the high percentage of milk fat and low percentage of milk solid not fat. How also can such high percentage of milk fat otherwise be accountable. Doubt having crept in the report of the Public Analyst, its benefit must necessarily go in favour of the petitioner".
8. With great respect we differ from the above view, in that case, the learned Single Judge looked at the report with the impression that the Public Analyst did not shake or stir the sample before conducting its .analysis, which in our view is not correct. The tests carried out by the Public Analyst are recognised tests. The Public Analyst being a technical man must shake and stir the sample before he conducts its analysis. It seems that the Full Bench decision in Teja Singh's case, (supra), was not brought to the notice of the learned Judge. The standards of various constituents of milk have been prescribed under the Act and even if there is negligible or marginal deviation from the prescribed standards laid down by the Rules, this cannot be ignored Moreover, more milk fat thin the prescribed standard is also adulteration as it can be achieved by some other dubious means by adding some sort of cheap oil Into the milk. What is to be seen in these cases is whether the different constituents of the milk are in accordance with the standard prescribed under the Rules. If the constituents are not in accordance with the prescribed standard, the only conclusion which can be derived is that the milk is sub standard. The view taken in Sultan's case, (supra), is therefore, over-ruled.
9. What is next contended before us on behalf of the respondent is that Rule 18 of the Prevention of Food Adulteration Rules, requires that each sample must be separately sent and, therefore, it is contended that sending of all the samples taken from different persons in one packet was infringement of this Rule. It is, however, not possible to accept this contention. If several samples are taken, there is no rule which requires that all of them should not be sent in one packet provided they are differently marked in order to indicate as to from whom each sample was taken.
10. This appeal is hereby allowed. The acquittal of the respondent Harpat is set aside and holding him guilty under Section 16 (1 (a) (i) of the Act, convict him accordingly. The sample was taken from the respondent as far back as 197s. Keeping this fact into consideration and other circumstances of the case, we sentence Harpat to three months, rigorous imprisonment and a fine of Rs. 500/-. In case of default of payment of fine, he shall have to undergo further rigorous imprisonment for a period of two months. Bbagwat respondent having been discharged by the trial court of the alleged offence, the learned counsel for the State has not challenged the order of bis discharge. Consequently the appeal qua him stands dismissed.
