Judgment.- This appeal is by the complainant against acquittal. The accused were prosecuted by the complainant (Food Inspector, Kottayam Municipality) under section 16(1)(a)(i) of the Prevention of Food Adulteration Act (shortly stated the Act) for selling adulterated cow’s milk. 700 milli-litres of milk offered for sale by the accused’s cooperative society was purchased by the complainant at 7-30 a.m. on 3rd February, 1970, on payment of a price of 84 paise. It was then divided into three parts as required by the Rules and 16 drops of formalin were poured into each part and bottled. On analysis by the Public Analyst it was found that the milk contained 18 per cent. of added water. Milk fat found was 3.5 per cent. and milk solids-not-fat 6.9 per cent. On further analysis by the Director of Central Food Laboratory, the result obtained was milk fat 5.0 per cent and milk solids-not-fat 8.2 per cent. The Public Analyst as well as the Director of Central Food Laboratory have opined that the sample is adulterated. According to the Public Analyst the sample is adulterated, because it does not conform to the standard prescribed for cow’s milk under the Prevention of Food Adulteration Rules, 1955 (shortly stated the Rules). The analyst is further of the opinion that the sample contained 18.0 per cent. of added water. The Director of Central Food Laboratory, on the other hand, has simply stated that the sample is adulterated. He has not given any particular reason for his conclusion. According to the Lower Court, "the deterioration in quality may have been due to the fact that the analysis is after a period of 4 months." It is on this reasoning that the learned District Magistrate has acquitted the accused. 2. But in my view, without going into the question whether the variation found in the quality of the milk is due to the delay in analysing the sample or not the acquittal can be supported on another, more sober ground. Both the report of the Public Analyst and the certificate issued by the Director of Central Food Labouratory can supply only the data relating to the analysis. Both the report of the Public Analyst and the certificate issued by the Director of Central Food Labouratory can supply only the data relating to the analysis. The question whether the sample is adulterated has to be decided by the Court on the data so supplied and in doing so, the data supplied by the Central Food Laboratory will have to be given precedence in accordance with section 13(3) of the Act. The Court in forming its conclusion on the matter can even look into other evidence made available before Court. On this point the Supreme Court’ in Ram Dayal v. Municipal Corporation, Delhi1, has observed: "Where certificates are not made final and conclusive evidence of the facts stated therein, it will be open to the party against whom certificates which are declared to be sufficient evidence, either to rebut the fact stated therein by his own or other evidence or to require the expert to be produced for cross-examination which prayer the Court is bound to consider on merits in granting or rejecting it. There is no presumption that the contents are true or correct though such certificate is evidence without formal proof. In any case where there is evidence to the contra the Court is bound to consider that evidence along with such a certificate with or without the evidence of the expert who gave it being called and come to its own conclusion." 3. The point, therefore, to be remembered is that it is for the Court to decide whether the sample is adulterated or not. The Public Analyst and the Director of the Central Food Laboratory can only report the facts noticed by them at the analysis, and in the process of the analysis prudence dictates that borderline variations have to be ignored. This principle is seen followed by the Supreme Court in The Malwa Co-operative Milk Union Limited v. Bihari Lal.1 In that case, Hidayatullah, J., as he then was, observed: "It is not clear whether the analyst was able to isolate the fat content so successfully as not to have left room for this slight variation. The variation was thus border-line." 4. Variation in the sample which was the subject-matter of the case was o.1 per cent. in one case, and 0.4 per cent. in the other, of the solids in the milk. The variation was thus border-line." 4. Variation in the sample which was the subject-matter of the case was o.1 per cent. in one case, and 0.4 per cent. in the other, of the solids in the milk. The fat content appeared to be more than the minimum and the non-fat solid contents to be proportionately less. In that case two samples were taken of buffalo’s milk. An application to withdraw the cases was allowed in each case by the trying Magistrate. Subsequently, applications were made to the Sessions Judge for reporting the cases to the High Court. Those applications were dismissed. Then a further revision was filed in the High Court which ordered a retrial setting aside the acquittal. In allowing the appeals against the order of the High Court, the Supreme Court has further observed: "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 entered by the Sessions Judge to stand." 5. A Division Bench of the Delhi High Court in Municipal Corporation of Delhi v. Om Prakash2, following the above principle has observed that a deficiency of 0.3 per cent. in solid fat is merely marginal and negligible and giving the benefit of doubt the accused was acquitted. In the said decision the learned Judges have quoted the observations of S.N. Mitra of the Central Food Laboratory, Calcutta, made at the 7th Indian Standards Convention, at Calcutta in 1963, which are worth remembering in this connection. He described the margin of permissible error as "tolerance." He observed: "In general, in all experiments involving analysis, some tolerances are allowed. It would be rather difficult to lay down any hard and fast rule for such tolerance. Further, it is clear that the question of tolerances would arise mainly in the case of border-line values. On the other hand, when the deviation in the results from the prescribed standards is large and appreciable, the question of allowable error will hardly arise.................... In calculating the percentage of adulteration in a sample of food usually no tolerances are taken into account for personal or experimental errors. Percentage of adulteration is calculated or the results as obtained in the laboratory without giving any allowance. In calculating the percentage of adulteration in a sample of food usually no tolerances are taken into account for personal or experimental errors. Percentage of adulteration is calculated or the results as obtained in the laboratory without giving any allowance. At times, calculation of percentage adulteration becomes very important from the point of view of the enforcement of purity and quality standards of foods.................. If, however, this deviation is more or less within the reasonable experimental error the question of giving the benefit of doubt would certainly arise." 6. Learned Counsel for the appellant-Municipality, would point out that in the Malwa Co-operative Milk Union case1, the Supreme Court had to consider only the report of the Public Analyst and the sample in that case was not forwarded to the Central Food Laboratory for further analysis. Whether the institution that conducts the analysis is the Public Health Laboratory or the Central Food Laboratory, the question that confronted the Court was whether the marginal error is likely to creep in, in the process of analysing the sample and the conclusion reached by the Court was that it is likely, and in such cases, the accused should be given the benefit of doubt. As already indicated by me the deficiency in the non-fat solid contents in that case was 9.4 per cent. As in the present case the fat content was more than the minimum and the non-fat solid content a little less. The Court held in the circumstances that the deficiency was negligible. It has also to be remembered in this connection that the fat and solid standards are likely to vary due to extraneous causes as well. This is a principle accepted by standard text book writers on the subject. Woodman in his book on Food Analysis, 4th Edition, at pages 148 to 152, would observe: "The fat and solids standards, formerly stated, are now abandoned for the State and municipal standards, on account of the difficulty in fixing a standard that will apply to all sections. This is a principle accepted by standard text book writers on the subject. Woodman in his book on Food Analysis, 4th Edition, at pages 148 to 152, would observe: "The fat and solids standards, formerly stated, are now abandoned for the State and municipal standards, on account of the difficulty in fixing a standard that will apply to all sections. In some cases all that may be necessary is to show by the analysis that the milk does not conform to the legal standard’ In certain of the States, however, a legal distinction is made between milk that is simply below standard and milk that has been actually adulterated by skimming or watering, the latter implying a wilful attempt to defraud, bring the more severe penalties. It is therefore of importants to show by the analysis whether water has been added to the milk directly and not through the breed or feed of the cow. Since in general the water that has been added is no different from the water already present in the milk, it is evident that this form of adulteration can be detected only by showing chemical or physical changes in the milk that could be ascribed only to the addition of water. Methods have been proposed, it is true, based on differences in the added water, such as an abnormally high amount of nitrates, which might have been drived from the polluted barnyard well, but these methods are of little importance, since water from a pure water supply may equally well be used. One thing is certain, however, the legal standard for solids not fat should not be given too great weight, other than to raise a presumption of watering or skimming, for the legal standards are often based on political expediency as well as on scientific knowledge....In general it may be stated that whether the freezing point of the original whole milk is known, results are obtainable to within an error not far from 0.5 per cent. and when the freezing; point of the original milk is not known, as with herd milk, the addition of water may safely be reported in an amount as low as 3 per cent." 7. and when the freezing; point of the original milk is not known, as with herd milk, the addition of water may safely be reported in an amount as low as 3 per cent." 7. About the factors which affect the composition of milk, Pearson in his book on Chemical Analysis of Foods, 5th Edition, page 322, would observe: "Apart from pathological conditions which give rise to the production of abnormal milk, there are a number of factors which affect the composition. Large variations, especially in the fat content, are given by the different breeds of cows, as can be seen from the table attached. The period of lactation has an effect on the composition of the milk. The total solids, fat and S.N.F. fall during the second month and then rise until the ninth or tenth month, after which there is a general diminution as the lactation ceases. The milk yield progressively decreases as lactation continues. Also with cows which are far advanced in lactation, the fat tends to contain a smaller proportion of volatile fatty acids and this results in changes in the Reichert and other values of the butter prepared therefrom. The composition is also influenced by the time interval which elapses between milkings. In general the evening milk is richer in fat than that drawn up in the morning from the same animal." 8. These, of course, are conditions prevailing in other countries; but the principle of marginal error and the various factors which contribute to such error cannot be ruled out even in our country and in entering a finding that the milk has been adulterated by adding water. These circumstances will have to be borne in mind. The opinion rendered by the Public Analyst that the sample contains not less than 18 per cent of added water is based on the deficiency of solids-not-fat content noticed by him. The result of his analysis was that the sample contained only 6.9 per cent of solids-not-fat; but this seems to have gone up to 8.2 per cent when the sample reached the Central Food Laboratory. The interval between the two analysis was 4 months and odd. The result of his analysis was that the sample contained only 6.9 per cent of solids-not-fat; but this seems to have gone up to 8.2 per cent when the sample reached the Central Food Laboratory. The interval between the two analysis was 4 months and odd. If on a calculation, from the presence of 6.9 per cent of milk solids-not-fat it could be concluded that 18 per cent of water was added, the element of added water must considerably, be less when it is recalculated on the basis of the presence of 8.2 per cent of milk solids-not-fat, which the Central Food Laboratory was able to detect on analysis. The conclusion that water to an extent was added, itself cannot so glibly be drawn without analysing scientifically the factors which affect the composition of the particular sample and leaving also a margin for experimental error indicated already. I think in the circumstances, there is scope for doubt as to whether water was added at all and the benefit of this doubt must certainly go to the accused. The requisite minimum of milk fat and milk solids-not-fat as indicated in item A.11.01.11 of Appendix B to the Food Adulteration Rules, which is applicable to Kerala, is 3.5 and 8.5 respectively and in its place we have 5.0 per cent. and 8,2 per cent. The total percentage is considerably higher than what is required under the Rules. On behalf of the complainant it was argued that when the Rules say that a particular article of food is below the standard prescribed, the Court cannot embark on an academic investigation about the quality of the stuff and say that it is not adulterated. Joshi v. Shimpi,1 was cited in support of this position. There it was held that: "If the quality or purity of butter falls below the standard prescribed by the said rule or its constituents are in excess of the prescribed limits of variability, it shall be deemed to be adulterated within the meaning of section 2 of the Prevention of Food Adulteration Act." The position is different under the English Law. In para. 14 of the above judgment the Supreme Court has dealt at length with the law obtaining in England under the Sale of Food and Drugs Act. In para. 14 of the above judgment the Supreme Court has dealt at length with the law obtaining in England under the Sale of Food and Drugs Act. In exercise of the powers vested, the Board of Agriculture made a regulation prescribing that where a sample of milk contained less than 3 per cent. of milk fat it was to be presumed that the milk was not genuine by reason of the abstraction therefrom of milk fat or the addition thereto of water. A dealer in milk sold pure milk and the deficiency in the milk fat was not due to any abstraction from the milk or addition of water thereto, but because of the herbage on which the cows were fed. The Court by a majority held that no offence was committed by the dealer. The reason given was that: "The section does not authorise the Board of Agriculture to define what is milk, or to fix a standard of the normal constituents below which an article shall be deemed not to be milk, and the regulation providing that where a sample of milk contains less than 3 per cent. of milk fat it shall be presumed until the contrary is proved, not to be genuine of necessity implies that it may be proved to be genuine although it contains less thai 3 per cent. of milk fat.............This, I think, confirms the view implied in the regulation that milk which has not been so-treated although it be deficient in milk fat is nonetheless deemed to be milk for the purposes of section 6 of the Sale of Food and Drugs Act, 1875." 10. The Supreme Court, commenting on the above, would observe: “It is, therefore, obvious that under the English Act selling milk below a particular standard is not an offence. The gist of the offence is mixing with milk any other substance or abstracting any part from it so as to affect injuriously the quality, substance, or nature of the milk. The regulation prescribing that milk shall contain not less than 3 per cent. of milk fat raises only a rebuttable presumption, and the dealer, notwithstanding such deficiency can prove that the milk has not been adulterated or impoverished within the meaning of the said Act. But in the Indian Act selling butter below the prescribed standard is deemed to be adulteration. of milk fat raises only a rebuttable presumption, and the dealer, notwithstanding such deficiency can prove that the milk has not been adulterated or impoverished within the meaning of the said Act. But in the Indian Act selling butter below the prescribed standard is deemed to be adulteration. If the standard is not maintained, the butter, by a fiction, becomes an adulterated food. A dealer in such butter cannot adduce evidence to prove that notwithstanding the deficiency in the standard, it is not adulterated.” 11. Thus under the Indian Law when once the article is found to be below the standard prescribed by the Rules it has to be presumed that the article is adulterated and the accused has no right to prove before Court that notwithstanding the deficiency in the standard, the stuff is, in fact, not adulterated. But the question raised in the present case is not whether the accused has the right to prove before Court that inspite of the deficiency in the standard, the milk is not adulterated; but the question is whether in the process of analysing the milk, the agency analysing is prone to commit marginal errors and whether the benefit of such errors should not be given to the accused. The Supreme Court in the case cited, The Malwa Co-operative Milk Union Ltd. v. Bihari. Lal1, (a certified copy of the judgment in that case was produced before me for perusal) has conceded that marginal errors are likely to be committed by the agency analysing the article of food and such errors will have to be taken into consideration in deciding whether the accused is guilty or not. In that case the border-line variation was 0.4 per cent. Such border-line variations have been conceded by S.N. Mitra of the Central Food Laboratory, Calcutta in his address at the 7th Indian Standards Convention at Calcutta, already referred to, wherein he describes the margin of permissible errors as ‘tolerence’. A variation o 0.3 per cent in the milk solids-not-fat in the present case has, therefore, to be treated as border-line variation and as was held Municipal Corporation of Delhi v. Om. Praksh,1 the benefit of the doubt arising from the variation should go to the accused. On this ground, therefore, the acquittal entered by the Court below can be sustained and in confirmation of the order of acquittal, this appeal is dismissed. Praksh,1 the benefit of the doubt arising from the variation should go to the accused. On this ground, therefore, the acquittal entered by the Court below can be sustained and in confirmation of the order of acquittal, this appeal is dismissed. M.C.M. ----- Appeal dismissed.