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12 Ld. Special PP on behalf of the Department has argued that only Gerber Method but also other tests had been performed to determine the adulteration in the sample of "cow's milk". The Ld. ACMM has rightly convicted the accused and the present appeal is liable to be dismissed. 13 I have heard the arguments and have perused the record. My observations are as under : -

14 The first argument which has been taken on behalf of the appellant was that the milk was in fact washed out residuary wash of various milk containers and was not milk intended for sale. However, this defence has been considered by the Ld. ACMM, who has rightly observed that the said defence was nowhere taken by the appellant in the documents which had been signed by him at the time when the sample was taken. It has further been rightly observed that though in the cross-examination of the prosecution witnesses the appellant had suggested that he had not accepted the money and that his signatures were obtained on blank papers, but there is not a whisper in his statement u/s 313 Cr.PC, when it was specifically put to him that the sample of "Cow's milk"

was taken which was intended for sale wherein he has admitted that the sample of "Cow's milk" was taken and the only defence putforth in his statement u/s 313 Cr.PC that the sample was taken without his consent and permission. The Ld. ACMM has, therefore, rightly concluded that this defence was merely an after thought and of little assistance to the appellant.

15 The second defence which has been taken by the appellant was that the Public Analyst report was not legible as "msnf" could be read as 0.03% instead of 6.03% which was the correct figure and in fact even the Public Analyst had to be summoned for clarifying the Public Analyst report. It was argued that it is on account of illegible Public Analyst report that the accused had withdrawn his application u/s 13 (2) of the Act. However, the Ld. ACMM has again rightly observed that in the Public Analyst report it was clearly indicated that the sample was adulterated as "milk fat" and "msnf" are less than the prescribed limit of 3.5% and 8.5% respectively. There was no question of the appellant being misled on account of the figure of 6.03% not being legible in the Public Analyst report. In this regard, it would not be out of place to mention here that the appellant never brought on record the copy of the Public Analyst which was served upon him to show that the figures were not legible. The figures were in fact legible and even if were not legible contents of the Public Analyst report sufficiently stated that the sample was adulterated. There was no prejudice whatsoever which was caused to the appellant and his withdrawal of application u/s 13 (2) cannot be attributed to the illegible copy of the Public Analyst Report. This argument is also of a little assistance to the appellant. 16 The third main argument which has been raised is that the Public Analyst had used the Gerber Method for determining the content of "milk fat" and the "msnf" had been calculated on the basis of difference from the total solids. It shows that actually it is the Gerber Method which has been used for ascertaining the "milk fat" and "msnf" content in the milk.

17 It has been held by the Supreme Court in the case of "Corporation of Nagpur v. Neetam Manikrao Kature & Ors., 1998 SCC (Cri) 564" that Gerber's Method of analysis of the quality of food substance was not of assured quality and accuracy and such method was not certified by the Indian Standard Institute.

18 The Public Analyst has followed Gerber's Method and his report based on such test cannot held to be reliable. The Manual of Methods of Analysis of Foods issued by Directorate General of Health Services, Ministry of Health and Family Welfare, Government of India, no doubt prescribes Gerber Method for determination of fat in "milk" but the same Manual also prescribes two other methods namely Roese- Gottlieb Method and Werner Schmidt Method for the said determination. Once the Supreme Court has accepted the uncertainty of Gerber Method, no explanation is forthcoming as to how this method is applied instead of two other methods.