Analyst report being based on calculation method reliable.

Bhat, J.

1. This appeal has come up before us on a reference by a learned single Judge of this Court who took the view that the decision of single Benches of this Court in Bavanna v. State of Kerala Bavanna v. State of Kerala 1985 K.L.T. 463, Karunan require reconsideration.

2. Appellant, Food Inspector, Palghat Municipality, preferred complaint against the four respondents herein under Sec.16(1)(a)(i) and (ii) read with Sec.7(i) and (v) and Sec.2(ia)(m) of the Prevention of Food Adulteration Act, 1954 (for short ‘the Act’) and Rules 44(b) and 50(a) of the Prevention of Food Adulteration Rules, 1955 (for short ‘the Rules’). First respondent is the Karingarappully Co-operative Milk Supply Society of which respondents 2 and 3 are Secretary and President respectively. Fourth respondent is a paid salesman. Registered Office of the Society is in Kodumba. It appears the society sells milk within the limits of Palghat Municipality, though without licence. On 10.12.1980 at about 8 a.m., when the fourth respondent was carrying cows milk for sale, Food Inspector, P.W.1. stopped him after observing the necessary legal formalities, purchased from him 750 ml. of milk for the purpose of analysis. The milk was dealt with in accordance with law and one of the samples sent to the Public Analyst for analysis. The Analyst submitted Ext.P12 report to the effect that the sample contained:

Milk fat…. 5.6 per cent

Milk solids not fat…. 7.6 per cent

Test for starch…. Negative

Test for cane sugar…. Negative

The Public Analyst opined that the sample did not conform to the standards prescribed for Cow's milk under the Rules and was therefore adulterated. He was further of the opinion that sample contained not less than 10 per cent of added water as calculated from the milk solids not fat content. He stated that the sample was received properly sealed and fastened and the seal was intact and unbroken and the seal on the container tallied with the specimen impression of the seal separately sent by the Food Inspector and the sample was in a condition fit for analysis.

3. The complaint presented by P.W.1, the Food Inspector, before the Chief Judicial Magistrate was dated 17.1.1981. It bears the Court seal on 20.1.1981 and was taken on file and summons ordered on 21.1.1981. The Local (Health) Authority despatched to the respondents, copies of the Public Analyst's report along with intimations as required under Sec. 13(2) of the Act and Rule 9(A) of the Rules. Copies of the intimation are Ext.P15 series and acknowledgements, are Ext.P16 series. Copies bear the date 17.1.1981. One of the acknowledgements bears the date 19.1.1981. It is not clear when the other respondents were served.

4. Respondents denied their guilt. Prosecution examined three witnesses and marked Exts.P1 to P18. Defence examined one witness and marked Exts.D1 to D3. Trial Court accepted the prosecution case and held that the sample did not conform to the standards prescribed under the Rules, that the milk belonged to the society and was sold by the fourth respondent, that respondents 2 and 3 were responsible for the conduct of the business and were therefore liable and there was contravention of Rule 50(a) of the Rules also and accordingly convicted all the respondents under Sec.16(1)(a)(i) read with Sec.7(1) of the Act as well as Rule 50(a) of the Rules and sentenced all of them under the former count though not under the latter count. In appeal by the respondents, learned Sessions Judge, took the view that respondents 2 and 3. President and Secretary of the Society, were not liable as they were not impleaded personally, that Rule 50(a) was not violated and that there was non-compliance with Sec.13(2) of the Act and Rule 9-A of the Rules, and accordingly set aside the conviction and sentence and acquitted the respondents.

5. Though all the accused are respondents in the appeal, appellant seeks reversal of acquittal only in regard to respondents 1 and 4. According to the appellant, Rule 9-A