JUDGMENT

D. P. Uniyal, J. - This is an application in revision against the judgment of the learned Civil and Sessions Judge upholding in appeal the conviction and sentence ox 2 year's R.I. and a fine of As. 2,000/-, in default to undergo rigorous imprisonment for 6 months, under Section 16 (i) (a) (iii) of the Prevention of Food Adulteration Act.

2. The Food Inspector, Nagar Mahapalika, Agra purchased a sample of mixed milk of cow and goat from the applicant on July 14, 1962. He divided the sample into three equal parts and sealed it. One of the phials was handed over to the accused and the other two remained with the Inspector. One of these two samples was sent to the Public Analyst for examination. The report of the Public analyst disclosed that fat contents of the sample was 4.3% while contents of non-fatty solids was 6.1%. The rules framed under the Prevention of Food Adulteration Act (the Act) do not lay down any standard for ascertaining the fat contents or the non-fatty solids of goats milk. It was conceded before me that the standard to be applied in case of mixed milk of cow and goat was the same as that prescribed in respect of cows milk. Under the rules the prescribed minimum in the case of cows milk is as follows:

Milk fat ..........3.5%

Non-fatty solids 8.5%

3. The Analyst reported that the milk was deficient in non-fatty solids by about 31% and was adulterated. The courts below accordingly convicted and sentenced the accused as said above.

4. Sri Gopi Nath Kunzru, learned counsel for the applicant, raised three points before me:

(1) That where the fat contents of milk sample exceeded the bottom limit the percentage of non-fatty solids could not be less than the minimum prescribed under the rules;

(2) that the natural constituents oi milk being (a) fat (b) non-fatty solids and (c) water, unless it was known how much water was added to milk the percentage of non-fatty solids could not be ascertained and, therefore, the report of the Public Analyst was intrinsically incorrect and could not be relied upon; and (3) that the Public Analyst, on his own showing, had not examined the milk sample himself but had caused it to be examined by his subordinates and, as such, his report was inadmissible; it not being a report contemplated by the Act.

5. At the request of the counsel of the parties allowed them to file interrogatories for the examination of the Public Analyst. In answer to a question of the learned counsel that in a case where fat contents of a sample of milk are more than the prescribed minimum whether it is possible that the non-fatty solids would be less than the normal prescribed under the rules, the Public Analyst said as follows:

"Yes, The standards for Fat and Non-Fatty solids are the minimum which should be present in a genuine sample of milk. Generally the milk fat in genuine milk of buffalo is much higher depending on. breed, feed, season, period of lactation, etc. of the animal. The natural variation in the percentage of non-fatty solids in genuine milk samples is slight. Thus when water is added to milk of high fat content the percentages of fat and non-fatty solids both fall down but the quantity of water may not be sufficient to bring the fat percentage below the prescribed minimum owing to excess fat contained in the sample while the percentage of non-fatty solids falls down below the prescribed minimum. An example will make the thing clear. Suppose a milk has the composition: fat 7.5% and non-fatty solids 9%. If we add 20% water then the resulting mixture will have the composition: fat 6.2% and non-fatty solids 7.5%. Very often vendors sell adulterated buffalo milk as cows milk or mixed milk and in such cases the fat percentage is above the prescribed minimum while non-fatty solids below the prescribed minimum."

6. He went on to say that non-fatty solids are not extracted from milk but its percentage falls down due to addition oi water.

7. The learned counsel for the applicant did not feel satisfied wi