The duty of the vendor to disclose the class of milk being sold and the duty of the Food Inspector to make necessary inquiries to determine the class of milk.

Murildhar, J.

1. THE applicant Ashiq has been convicted under section 7/16, Prevention of Food Adulteration Act and sentenced to six month's RI and a fine of Rs. 500/- in default S. I. for two months.

2. THE prosecution case was that on 26-5-1977 at about 10 A. M. the applicant was carrying some cans of milk for sale. A sample of milk was obtained by the Food Inspector and on alaysis by the Public Analyst it was found containing only 3.8% fatty solids as against the prescribed 4.5% for buffalo milk. THE applicant was accordingly prosecuted. THE defence was a denial and the applicant pleaded that no sample was taken from him and it was false case. Both the courts below have disbelieved the defence and accepted the prosecution evidence regarding taking of sample.

The only point canvassed in revision is that the milk in question should not have been judged by the standard of buffalo milk. It is pointed out that the fat content as well as non-fatty solids content are in accordance with the prescribed standard for cow milk. It is emphasised that in the notice in Form 6 as well as the receipt for the sample the Food Inspector described the article of food as merely milk and not as buffalo milk. It is further pointed out that the receipt shows that only 90 paise were paid for 750 miligrams and that this meagre price too would go against the sample (being of buffalo milk. On the other hand the prosecution relied upon the Note to Para A. 11.01.11 of Appendix B where it is stated "when milk is offered for sale without any indication of the class the standards prescribed for buffalo milk shall apply.'' So the question for consideration is whether the milk can bet said to have been offered for sale without any indication of the "class in the present case. This involves consideration of the larger question as to how is the class of milk offered for sale to be indicated for the purposes of the aforesaid Note.

3. THE ground may be cleared by consideration of the oral evidence. THE Inspector in his evidence stuck to describing the article as milk and stated nothing which might show that the vendor had represented it to be buffalo milk or that he had asked the vendor to supply buffalo milk. Thus, his oral evidence is in accordance with Form 6 and the receipt. P.W. 2 Ram Charan Singh, a witness to the sample taking, did state in his evidence that it was buffalow milk but in the face of the Food Inspector's evidence his evidence must clearly be discarded especially when he has not indicated any baas for his asserting it to be buffalo milk.

4. TO revert to the question in hand, when can it be said in a prosecution under the Prevention of Food Adulteration Act that "Milk is offered for sale without any indication of the class ?." The Rules do not prescribe any manner for indication of the class. In Part VII of the Rules there are certain rules about labels on articles of food but these would be applicable only to packaged foods and not to food article sold loose. In the absence of any specific provision of law it will not be proper to imply a legal duty on the vendors selling articles of food loose to place any labels on the containers in which the articles are kept or carried. This would also not accord with the prevailing trade practice in which such labels are seldom found even in shops. Milk is usually carried by vendors in cans and buckets and the class of milk therein may change from day to day. Therefore, any requirement of labelling the can with the class of milk would be a major duty which could not be imposed except under an express and specific legal mandate. When there is no label on the container the ordinary method of deciding the class of milk being offered for sale may be any one of these (1) The vendor may himself give out the class voluntarily or in answer to query of some customer including the food inspector, (2) There may be an implied representation by the vendor such as when the customer wants a particular class and th