The indication of the milk class required by Note (i) appended to Rule A. 11. 01. 11 of the Prevention of Food Adulteration Act must be on the container prior to the sale, and oral or written indication at the time of sale is insufficient.

( 1 ) THIS appeal is directed against judgment of acquittaldated 22/10/1986, of a Metropolitan Magistrate, New Delhi. The respondentwas acquitted of an offence punishable under Section 7 read with Section 16 of theprevention of Food Adulteration Act.

( 2 ). The undisputed facts of the case are that on 27/02/1985, at about 4. 45p. m. the respondent was carrying certain milk cans in a vehicle from his village forselling the milk in Delhi, but on the way to Delhi the Food Inspector stopped hisvehicle near Nizammuddin Bridge and had taken a sample of the milk from a canwhich bore no lable. In the receipt issued by the Food Inspector to the respondentfor purchasing sample of the milk, the respondent had recorded that he had soldthe sample of separata / (skimmed) milk. The analysis of the sample milk carriedout by the Public Analyst indicated that the sample did not conform to the standardof buffalo milk although it did conform to the standard of skimmed milk.

( 3 ). A complaint was made against the respondent before the Metropolitanmagistrate after obtaining necessary prior sanction on the ground that the can fromwhich the sample of the milk was taken did not indicate as to what kind of milk itcontained, so, in view of the Rules applicable to the sample where there being noindication of the type of the milk so sold, the standard of buffalo milk is applicable. The learned Metropolitan Magistrate had held that in the receipt the respondenthad indicated that he was selling sample of the skimmed milk and thus, thestandard for the skimmed milk was applicable and hence, the respondent was notguilty of selling any milk of buffalo which could be treated as adulterated milk asit did not conform to the standard of Buffalo milk prescribed by the statute. So, heacquitted the respondent.

( 4 ). The learned Counsel for the State has vehemently argued that in view ofrule A. 11. 01. 11 the Note (i) appended therein, if the milk is offered for sale withoutany indication of the class, the standards prescribed for buffalo milk shall apply,would be applicable to the present case inasmuch as there should have been anindication on the can of the milk indicating as to what class of milk was containedin that particular can and mere indication of the class of the milk on the receiptpertaining to the sample of milk so purchased that it was a skimmed milk is of noconsequence.

( 5 ). Similar question had arisen before a Single Bench of this Court in the case of Gajinder v. State, 1975 (1) FAC 420. In the said case the container similarly hadno indication written over it with regard to the class of the milk but a plea was takenby the accused in that case that at the time of the sale of the sample, he had giventhe indication orally with regard to the class of the milk. The contention raisedbefore the Single Bench was that the word indication mentioned in the aforesaidnote would mean even oral indication at the time the sample is sold. The learnedsingle Judge, however, held that the word indication if broadly interpreted maymean even oral or written indication but the broad interpretation is not to be givenbecause it is liable to be misused by the unscrupulous persons dealing in foodarticles as at the time of the sale of the sample a false representation and declarationcould be given by the vendor with regard to the nature of the article being sold. So,he held that the word indication should mean some indication on the container orcan containing said food article and not any indication being given orally or inwriting by the vendor at the time of the sale of the milk.

( 6 ). The same interpretation was given by a Division Bench of this Court inmunicipal Corporation of Delhi v. Karam Chand, 1974 0 FAC 490. In the said casethe Food Inspector had taken a sample of the milk out of one of the containers whichhad the indication written on it as toned milk . The contention raised before thedivision Bench was that the vendor had written the words a