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19. This controversy came before a Division Bench in Puran Singh v. State of U.P. 1978 FAJ 168. In that case the public Analyst opined that the sample of milk was adulterated as it contained 11% of milk 'fat and only 1.9% of non-fatty milk solids. The Division Bench expressed grave grounds regarding the correctness of the report of public Analyst and consequently set aside the conviction. It was observed that it would also not be out of place to observe that when milk is stored the fat contents come to the top as the milk cools and if sample is taken from the top portion without stirring the milk thoroughly, the sample taken will be very high in fat contents and would not given correct picture or in other words, would not be a correct sample of the quality of the milk. It was further observed "As will appear from instructions given to Analysts, even during analysis they are advised to thoroughly shake the sample of milk because the milk fat generally accumulates at the top and if only the portion of the sample is analyzed; it will show a very high percentage of milk fat and a corresponding low percentage of non -fatty solids.

22. This view was not accepted by some other Benches. A divergent opinion was expressed in Nanhay v. State of U.P., 1982 Cri LJ 158. The learned Judge relying on the report of the Public Analyst held that the accused was rightly convicted. The reasoning adopted by the Bench contained in paragraph 18 is reproduced below :

In the instant case the Public Analyst found fat content 3.6% and non-fat solids content 5.6% according to the standard prescribed for cow milk; thus the sample was deficient in non-fat solids content by about 33%. The mere fact that there was deficiency only in non-fat solid contents in the sample cannot lead to the conclusion that the milk was not adulterated or that the report 9 of the Public Analyst was erroneous. If the Legislature thought that the non-fatty solids contents would not be deficient in a sample in which the fat content is not less than the prescribed standard, it would not have prescribed standard for both fat and non-fat solid contents. It should be taken that the Legislature was aware that there could be a sample of milk in which fat content may be according to the prescribed standard but which may still be deficient in the non-fat solids content. It is likely that in the instant sample the non-fat solid content was below the prescribed standard because of the milk being sub-standard. It is also likely that the applicant falsely gave out that the milk was of cow while it was in fact Buffalo's milk which was deficient both in fat and non-fat solids content. So far no test has been discovered which would distinguish between cow's milk and buffalo's milk. The applicant had every opportunity to get the report of the Public Analyst checked up by getting another part of the sample analysed by the Director of the Central Food Laboratory. No attempt was made by the applicant to get such analysis done. For all these reasons I am not prepared to infer from the circumstance that the sample was found deficient in only non-fat solids content that the milk was not adulterated and the report of the Public Analyst to the contrary was erroneous and unworthy of reliance.

23. Similar controversy arose for consideration before a Full Bench in Prem Das v. State, AIR 1961 All 590. In that case the accused had sold a mixture of buffalo milk and cow milk a sample of which was taken by an Inspector and sent for chemical analysis. The Public Analyst reported that the sample contained 5.9 per cent milk fats and 7.0 per cent non-fatty solids. The question arose whether the sample could be treated as adulterated since no standard was prescribed for mixture milk. The Bench held "that whatever might have been the proportion in which the two kinds of milks were mixed together, the total quantity of the non- fatty solids could not have been less than 8.5 % fixed for cow's milk, if neither of them was adulterated. Since in the instant case the percentage of non-fatty solids was less than the prescribed minimum for cow's milk, the mixture of cow milk and buffalo milk was adulterated within the meaning of Section 2(I)(1), and the accused was guilty under Section 16.

1st Sample Milk Fat 6% Solids non-fat 7.9% 2nd Sample Milk Fat 5.9% Solids non-fat 7.7% The Supreme Court held that in the samples of fatty solids were almost 14% while non fatty solids in the one case being only 1 percent less and in the other 4 per cent less. The fat contents were thus, proportionately less. The Supreme Court doubted whether the analyst was able to isolate the fat content so successfully as not to have left room for this slight variation. It observed that the variation was thus borderline. The Supreme Court in the case before it was considering the power to the revisional Court to set aside the acquittals in such borderline cases. It did not overrule the possibility of slight error in calculation or in isolation of fat but without speculating upon this aspect of the case held that this was hardly the kind of case in which the High Court should have exercised its powers to set aside an accquittal in revisonal jurisdiction. The Supreme Court proceeded to observe that "We do not think that the High Court really called upon to exercise its extraordinary powers of revision to set aside an acquittal which the policy of the Corporation and Government indicated was desirable, if the supply of milk to the city of Indore was to be regulated. The variations in the solid contents of the milk prima facie were not so great as to merit attention even in the first instance and we think that the High Court might well have left the acquittal endorsed by the Sessions Judge to stand. In these circumstances we think the appeals should be, allowed and the order of the learned single Judge discharged and the acquittal restored. We order accordingly.