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7. While prosecution under the Act was for public interest, withdrawal of the prosecution in that case was also for public interest. The two samples of milk purchased in that case were from the 6ame Milk Union and they both were examined by the same authority, the Public Analyst. In spite of that the reports of the Analyst differed slightly regarding certain particulars. As regards milk-fat he said in one case that it was 6% and in the other 5.9% and as regards solid-non-fat he said in one case it was 7.9% and in the other 7.7%. If the reports were accurate such differences could not have happened in the case of milk purchased from the same person and examined by the same authority. It was in those peculiar circumstances and on those peculiar facts that the Supreme Court happened to observe that the variation was on borderline, that it was not clear whether the Analyst was able to isolate the fat content so successfully as not to have left room for the slight variation which was found in his reports and that it was possible that a slight error in calculation or in isolation of fat may have been made by him.

Kader, J.

23. My learned brother, Narayana Pillai J., with respect, has elaborately dealt with the points involved in the case. I also agree with the conclusions arrived at and1 the sentence passed against the accused by my learned brother. The article of food involved in the instant case is cow milk. The standard for different classes and designation of milk are prescribed under A-11.01.11 of Appendix 1 of the Prevention of Food Adulteration Rules, 1955. The standard of minimum per cent of milk fat and milk solid-non-fat for cow milk in various parts of the country has been prescribed. As per this, the minimum per cent of milk fat and milk solid-non-fat for cow milk in Kerala are 3.5 and 8.5 respectively, Under Rule 44 of the Prevention of Food Adulteration Rules, notwithstanding the provisions of Rule 43, no person shall either by himself or by any servant or agent sell milk which contains any added water. Cow milk, the quality of which does not come within the statutory standard prescribed must be deemed to be adulterated and the sale of such an article of food contravenes Section 7 of the Act and is an offence. Any person who sells milk which is not of the nature, substance or quality contravenes the provisions of the Act .and thereby commits an offence. If the milk fat is less than the prescribed minimum or the milk solid-non-fat is less than the prescribed minimum, the sample of milk would be deemed to be adulterated within the meaning of Section 2 (i) (1) of the Act, irrespective of the presence of quantity of added water. As already referred to, sale of milk containing added water is prohibited under Rule 44 and that by itself is an offence punishable under Section 16 of the Act. Milk added or diluted with water would come within the definition of the word "adulterated" under the Act. When a standard of quality or purity has been prescribed under a statute for an article of food, it is not within the scope and province of the courts of law to question the reasonableness or correctness of the standard so prescribed. Under Section 2 (i) (1) of the Act, an article of food shall be deemed to be adulterated if the quality or purity of the article falls below the prescribed standard or its constituents are present in quantities which are in excess of the prescribed limits of variability. The purpose of Rule 44 is to ensure that the article of food sold must be without any of the things or substances not permitted by law. The foreign matter added or adulterated substance need not be poisonous or injurious to health. The fat contents of milk may vary in various States depending upon several factors and that is why the standards prescribed for fat contents of milk vary from State to State. The relevant rule under this Act has not prescribed a cast iron percentage. But, it has only prescribed a standard insisting only on a minimum percentage of certain ingredients or contents. In other words, it is laid down that to be within the standard prescribed the ingredients should not fall below a particular percentage. The constituents of an article of food should not be present in quantities which are in excess of the prescribed limits of variability. This is clear from the definition under Section 2 of the Act, and it is evident that the possibility of the contents of milk varying because of various factors, has certainly been taken into consideration in prescribing the standard for cow milk under the Act insisting the compliance of certain minimum requirements. It may not therefore be proper for a court of law to go beyond the standard prescribed and assume that in certain circumstances the contents in the milk may go lower or higher than that prescribed in the statute. When a standard has been orescribed by law for an article of food and on analysis if it is found that it does not conform to the standard so prescribed, the sale of such an article of food contravenes the provisions of the Act and is an offence punishable thereunder.

25. In 1971 Ker LT 248. the sample of cow milk was found, on analysis, to contain 18% of added water, 3.5% of milk fat and 6.9% of milk solid-non-fat The Director of Central Food Laboratory to whom the sample was sent for further analysis, found that the milk sample contained 5% of milk fat and 8.2% of milk solid-non-fat. Both the experts were unanimous that the sample of milk in question was adulterated. It was on the basis of the deficiency of solid-non-fat contents noticed that the Public Analyst came to the conclusion that the sample contained not less than 18% of added water. The learned Single Judge stated therein that it was without adopting a scientific analysis that the Public Analyst came to the conclusion that water was added, that there was therefore scope for doubt as to water was added at all and held that the benefit of this doubt must go to the accused.

But, in the instant case, the Public Analyst has applied the Hortvet's method to ascertain whether there was added water in the sample of milk. The Public Analyst has stated that the percentage of added water has been calculated on the basis of the fact that the freezing point of genuine cow milk is 0.53° C. Hortvet's method has been accepted as a more dependable and safe method for determining whether there is added water or not in a given sample of milk. Apart from the fact that the sample of cow milk in the case under consideration does not conform to the standard prescribed for cow milk, it also contained not less than 9 per cent of added water. Even if it is assumed for the sake of argument that there is only a negligible variation in the contents of milk fat and milk solid-nonfat in the sample, the data given in the report of the Public Analyst clearly shows that the sample of milk contained added water and the sale of such milk is prohibited under Rule 44, the contravention of which is an offence punishable under the Act. The learned Single Judge who decided the case in 1971 Ker LT 248 has, with great respect, rightly stated that under the Indian law when once an article of food is found below the standard prescribed it has to be presumed that the article of food is adulterated and the accused has no right to prove before court that notwithstanding any deficiency in the standard the stuff is, in fact, not adulterated; but appears to have failed to apply this principle to the facts of that case. The case on hand is one where the sample of milk sold to the Food Inspector by the accused is found to be not in accordance with the standard prescribed by law.