( 1 ) THIS is an appeal by the Municipal Corporation Gwalior against the order of the municipal Magistrate, first class, Gwalior, acquitting the respondent Kishan swaroop of the offence under Section 7 (1) read with Section 16 (1) of the prevention of Food Adulteration Act (7 of 1954) (hereinafter called the Act ).

( 2 ) BRIEFLY stated the facts arc that Shri Radhey Shyam Sharma, Food Inspector of the Municipal Corporation Gwalior purchased 3/4 seer of milk from the respondent on 10-5-1960 at about 7 A. M. for 36 paise. The milk purchased was divided into 3 portions and samples were taken in three separate phials. One of the phials was given to the accused, the other was sent to the Public Analyst for analysis on 175-60 and the third was preserved for production in Court. The Public Analyst analysed the sample of milk apparently on 19-5-1960. In his opinion the sample contained fat 2. 9 per cent non-fatty solids 7. 39 per cent and added water 17. 8 per cent. It was not challenged that the milk was buffalo milk and under Rule A. 11. 01. 03 it is to be presumed that where the milk is sold or offered for sale without any indication as to whether it was derived from cow, buffalo, goat or sheep, the standard prescribed for buffalo milk shall apply.

( 3 ) THE oral evidence in the case is not of much importance. The case for the prosecution mainly hinges on the report of the Public Analyst. The learned magistrate concluded that it was not established by the prosecution that the said milk was adulterated. He emphasised that the said milk was analysed by the Public analyst after more than 8 days of the samples being taken, that only one drop of formalin was added per ounce of milk of instead of two drops per ounce as required under Rule 20 of the Prevention of Food Adulteration Rules; that as the preservative added was much below the proportion of 2 drops to one wince of the sample, it could not be held that the preservative had the effect of preserving the sample; that there was no evidence that the sample sent for analysis was kept and sent to the Public Analyst under refrigeration or having been kept under ice; and that the report of the Public Analyst only mentioned the percentage of added water without mentioning the quantity of water detected in the sample. Consequently, no reliance was placed upon the report of the Public Analyst, and the learned Magistrate found that the report of the Public Analyst did not prove the respondent's guilt.

( 4 ) THE first contention raised by the learned counsel for the appellant is that the milk in question should have been deemed to be adulterated within the meaning of section 2 (i) of the Act because its quality and purity were found to be below the prescribed standard and because in addition it was found to contain added water by the Public Analyst. The learned counsel urged that the mere fact that formalin was added in the proportion of one drop to one ounce of the sample of milk instead of the requisite proportion of two drops to one ounce of the sample was not material, firstly for the reason that the addition of preservative according to rule 19 of the Prevention of Food Adulteration Rules was merely directory and not mandatory and secondly for the reason that the milk in question was examined by the Public Analyst only after 8 days of the date of the purchase of milk by the Food inspector. ( 5 ) IN our opinion, the contentions advanced by the learned counsel cannot be accepted. Rule 19 on which reliance is placed is a general rule authorising any person taking a sample of any food for the purpose of analysis to add a preservative as may be prescribed from time to time to the sample for the purpose of maintaining it in a condition suitable for analysis. Rule 20 is a specific rule for using the preservative in case of sample of any milk (including skimmed and separated milk) cream and gur in liquid or saniliquid form. This rule expressly provides that the liquid commonly known