IMPORTANT POINT
In terms of Rule 9 of PFA Rules in absence of any explanation offered by person from whom article of food is purchased and sample taken, milk or its product has to be deemed to be milk or product made out of buffalo s milk.

ORDER

On proof of the facts that the appellants were selling adulterated curd, they were convicted under section 7 read with section 16 of the Prevention of Food Adulteration Act (hereinafter referred to as "the Act") and sentenced to undergo rigorous imprisonment for six months and to pay a fine of Rs. 1,000/- each. In default of the payment of fine, they were to further undergo two months s simple imprisonment. The appeal and the revision filed by them were dismissed, hence this appeal by special leave.

2. Learned counsel appearing for the appellants has vehemently argued that as the food inspector had not discharged his duties strictly in accordance with rule 9 of the rules framed under the Act, the appellant should have been given the benefit of the lapses and the seized curd be deemed to have been prepared out of the cow s milk. Rule 9 of the rules refers to the duties of the food inspector and does not provide that in all cases, where sample is taken, the food inspector should ascertain the source of the article seized and if he fails to note the origin of the food product, the benefit of the same should be given to the accused.

3. Reliance is placed on a judgment of the single judge of the Allahabad High Court in Hari Krishna v. State [1980(1) Prevention of Food Adulteration Cases 452] wherein it is held that rule 9, inter alia, provides that it shall be the duty of the food inspector to make such enquiries or inspections as may be necessary to detect the manufacture, storage or sale of articles of food in contravention of the Act, or rules framed thereunder. The rule thus makes it obligatory on part of the food inspector to make necessary enquiries from the vendors of articles of food in order to enforce the provisions of the Act. If on making such enquiries, the vendor does not make any disclosure, only then the question of raising a presumption under the abovesaid articles of schedule B would arise. On the other hand, if the food inspector does not make any enquiry or if the vendor voluntarily does not state that the milk or the curd, as the case may be, is the buffalo s milk or has been made out of buffalo s milk there can be no question of raising a presumption referred to in the aforesaid articles of the schedule. The view taken by the learned single judge of the Allahabad High Court, apparently, appears to be against the mandate of law and contrary to the provisions of the Act and the rules. Perusal of rule 9 shows that no duty is cast upon the food inspector to hold enquiries and give a finding that he had ascertained that the curd was prepared out of the buffalo s milk and not from the cow s milk. The Allahabad High Court appears to have completely ignored entry No. 11.02.04 in appendix B of the Prevention of Food Adulteration Act which provides as under:

"A. 11.02.04 dahi or curd means the product obtained from pasteurised of boiled milk. By souring, natural or otherwise, by a harmless lactic acid or other bacterial culture, dahi may contain added cane sugar, dahi shall have the same minimum percentage of milk fat and milk solids non-fat as the milk from which it is prepared.

Where dahi or curd is sold or offered for sale without any indication of class of milk, the standards prescribed for dahi prepared from buffalo milk shall apply. Milk solids may also be used in preparation of this product."

4. In the absence of any explanation offered by the person from whom the article of food is purchased and samples taken, the milk or its product has to be deemed to be milk or the product (curd) made out of the buffalo s milk. On facts, the public analyst has found that the fat contents of the curd was 3.867% and the solid not-fat was 7.487% as against the required content of 6.0% and 9.0% respectively. The curd has thus rightly been found to be adulterated and the appellants committed offence punishable under section 7 read with section 16 of the Act. The High Court of Gujarat has taken a correct view on the subject and