In the absence of a prescribed standard of quality for butter-milk under the Prevention of Food Adulteration Act, 1954, and the Prevention of Food Adulteration Rules, 1955, a prosecution for not maintaining the standard cannot be maintained.

Judgement

SUBBA RAO, J. : The appellant is the manager of the Palghat Depot of Messrs. Nambissan s D. V. Dairy Farm. On July 20, 1961, one of the Food Inspectors visited his depot and purchased from the second accused, the salesman in charge of depot, two mazhies of skimmed thick butter-milk out of the stock exposed for sale in the depot. He sent a sample of it for analysis to the Public Analyst. The Analyst reported that the solids-not-fat content in the said sample was 7.5 per cent as against 8.5 per cent prescribed for curd: he was of the opinion that the sample contained not less than 11 per cent of added water. When the sample was analysed a few months later by the Central Food Analyst, he reported that the solids-not-fat content in the sample was only 6.4 per cent. Thereupon a complaint was filed in the Court of the District Magistrate (Judicial), Palghat, against the appellant and his salesman-we are not concerned in this appeal with the charge against the salesman. The charge against the appellant was that he committed an offence under S. 16 (1) (a) (i) and S. 7 of the Prevention of Food Adulteration Act, 1954 (37 of 1954), hereinafter called the Act, read with R. 44 of the Prevention of Food Adulteration Rules, 1955, hereinafter called the Rules. The charge against him was that he exposed for sale skimmed thick butter-milk which on analysis was found to be adulterated with water to the extent of 11 per cent. The learned District Magistrate, on a consideration of the entire evidence placed before him, came to the conclusion that the appellant was not guilty of the offence with which he was charged: he held that no standard of quality was prescribed for butter-milk and, therefore, the accused could not be convicted for the offence under the Act and the Rules. On appeal, the High Court took the view that the standard for milk had been fixed by the Rules, that the same standard was made applicable to curd and that, as butter-milk was in essence curd from which butter had been extracted, the butter-milk should contain the same quantity of solids-not-fat as curd should contain. On this reasoning, the High Court held that, as the sample showed only 6.4 per cent of solids-not-fat content while it should have contained 8.5 per cent of it, the accused had committed the offence under the said provisions and sentenced him to pay a fine of Rs. 100, in default to suffer simple imprisonment for one month. Hence the present appeal, by certificate.

2. Mr. R. Ganapathy Iyer, learned counsel for the appellant, contended that the appellant was prosecuted for not maintaining the standard prescribed for butter-milk and that, as no standard was in fact prescribed for the said product, the High Court, went wrong in convicting him.

3. To appreciate this contention it is necessary to notice the relevant provisions of the Act and the Rules.

Section 2 (i) (I).- An article of food shall be deemed to be adulterated if the quality or purity of the article falls below the prescribed standard or it constituents are present in quantities which are in excess of the prescribed limits of variability.

Section 7.- No person shall himself or by any person on his behalf manufacture for sale, or store, sell or distribute-

(i) any adulterated food:

(ii) any misbranded food;

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(v) any article of food in contravention of any other provision of this Act or of any rule made thereunder.

Section 16.-(1) If any person-

(a) whether by himself or by any person on his behalf imports into India or manufactures for sale, or stores, or distributes, any article of food in contravention of any of the provisions of this Act or of any rule made thereunder,

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he shall, in addition to the penalty to which he may be liable under the provisions of S. 6, be punishable

In exercise of the power conferred under S. 23 of the Act, the Central Government made rules defining the standard of quality for, and fixing the limits of variability permissible in respect of, any article of food. R