Acceptability of the report of Public Analyst.

The Food Inspector, Kottayam Municipality, is the appellant, the complainant before the District. Magistrate’s Court, Kottayam. The offence against the accused was that he sold adulterated cow’s milk, being below the prescribed standard. The Food Inspector added 18 drops of ‘formalin’ as preservative to the milk purchased by him and sent it for analysis. On analysis it was found to be adulterated inasmuch as it fell short of the prescribed specification.

2. The learned District Magistrate found that the evidence of P.W.1 was not corroborated by P.W.2, that P.W.2 is not an independent witness and is susceptible to the influence of P.W.I, and hence there is a violation of section 10 of the Act. It was also held that the report of the public analyst, Exhibit P-8, cannot be relied upon, as the quantity of preservative used was more than the prescribed maximum. On these findings, the learned Magistrate acquitted tire accused. It is against this acquittal that this appeal is filed.

3. The only question which needs consideration in this case is whether the adding of an excess quantity of preservative has made Exhibit P-5 report of the Public Analyst in admissible or unreliable.

4. The learned Counsel for the appellant brought to my notice the following decisions in support of his contention that the quantity of preservative used does, not affect the report of the Public Analyst.

5. In Public Prosecutor v. Venkataswami1 it was held:

"The rules do not contain any direction to the Public Analyst to analyse a sample within a particular period, but the presumption is that in view of the fact that the samples that are sent to him are of a perishable nature, the analysis would be normally conducted as expeditiously as possible. The idea of adding preservatives is not to prolong the life of the samples indefinitely but to keep it in its original state, for a limited period. It would, therefore, be presumed that the analysis had been conducted soon after the sample was received. The delay in compiling the report does not necessarily mean that the analysis was also delayed. If the Magistrate has any doubt in regard to this aspect of the matter he can examine the Public Analyst or get a clarification from him". The Court further held:

"The question is that if only four drops of preservatives were added to the sample as against the direction of putting one drop for each ounce (subsequently amended to two drops, it had adversely affected the opinion of the Public Analyst. The fact of adding insufficient quantity of preservative has not been considered in the case cited above nor there is any data on record to hold that merely because an insufficient quantity of preservative was added, the opinion of the Public Analyst on that account was liable to be ignored. Here again, I am inclined to hold that the complaint should have emanated from the Public Analyst viz., that as insufficient quantity of the preservative had been added the sample had deteriorated or that decomposition had set in with the result that the analysis could not proceed on a safe footing. There is no such complaint by the Public Analyst nor the respondent has chosen to examine the Public Analyst from this point of view. I, therefore, think that even conceding that smaller quantity of preservative was added to the sample sent it could not be concluded that the opinion of the Public Analyst could be discarded on that account.

It is on record and not controverted that the sample of the milk taken from the respondent Was supplied to him. If it Was his case that on account of insufficiency of preservative the sample had deteriorated, he could have availed of the provisions under section 13 of the Act and sent the sample to the Central Food Laboratory for an opinion. Admittedly, he has not followed this course. In the absence of it, there is no justifiable reason to arrive at the finding that merely because of the insufficiency of the preservative the sample had undergone a further