JUDGMENT K.C. Agrawal, J. 1. This revision under Sections 297/401 of the Code of Criminal Procedure has been preferred by Rajendra Singh against the judgment of the Sessions Judge, Fatehpur, dated 3rd November, 1981, upholding his conviction by the Chief Judicial Magistrate, Fatehpur by his judgment dated 7-8-1981, convicting him under Sections 7/16 of the Prevention of Food Adulteration Act and sentencing him to six months' R. I. and a fine of Rs. 1000/-. 2. On October 31, 1979, at about 9. 45 a. m. Hari Shanker Bajpai, Food Inspector (PW 1), found Rajendra Singh applicant carrying on his cycle milk in iron cans. The Food Inspector disclosed his identity and purchased 660 ml. on payment of price. After dividing the sample obtained into three parts, Hari Shanker Bajpai sent one of them to the public analyst for his opinion. Admittedly, milk obtained was mixed milk of cow and buffalo. Even on the cans it was written "Mishrit Doodh Gai Bhens". The Public Analyst on analysis found milk to be adulterated as it was deficient in non- tatty solids contents by 21%. His analysis was that fat contents in milk was 5.4% whereas non-fatty solids was 6.7%. The standard of mixed milk as given in Schedule B to the Prevention of Food Adulteration Act is 4.5% fat and 8.5% non-fatty solids. After obtaining sanction from the Chief Medical Officer, the Food Inspector launched prosecution by filing the complaint before the Chief Judicial Magistrate, Fatehpur. By the Notification dated 20th January, 11/19, No. 4763/XVI-X-722-55, the Governor has appointed with effect from the date of publication of the notification in the official gazette, all Chief Medical Officers as Local Health authorities to be incharge of the Health administration under the Prevention of Food Adulteration Act, 1954 for the whole of the district excluding cantonment areas, railway premises and railway colonies. 3. Before the Chief Judicial Magistrate, the prosecution produced three witnesses who were Hari Shanker Bajpai (PW 1), Ram Saran, Sanitary Supervisor (PW 2) and Ram Krishna, Clerk of the CMO office (PW 3). 4. The accused-applicant pleaded not guilty and attributed his false implication due to enmity. He stated that milk was not for sale and that he was taking it to his Nanihal where Satyanarayan Ki Katha was arranged. 4. The accused-applicant pleaded not guilty and attributed his false implication due to enmity. He stated that milk was not for sale and that he was taking it to his Nanihal where Satyanarayan Ki Katha was arranged. After considering the prosecution witnesses and the defence, the Chief Judicial Magistrate, Fatehpur, convicted the applicant under Sections 7/16 of the Prevention of Food Adulteration Act and awarded six months' R. I. and Rs. 1000/- as fine. 5. Aggrieved, the applicant went up in appeal which was dismissed. Hence, this revision. 6. The first point that was raised before me was that as the sample of milk was obtained at the railway crossing, the Chief Medical Officer had no power in law to sanction prosecution of the applicant. Ram Saran (PW 2) stated that it was near the railway crossing that the sample was obtained. He was not cross-examined by the defence on this aspect of the matter. In common parlance near the railway crossing but outside the railway jurisdiction are also designated as railway crossing and people generally describe the same as such. From the evidence, the two courts concluded that the milk was not taken in between the two gates of the railway crossing. The first contention of the learned counsel for the applicant that the offence had been committed at the railway premises, hence, the Chief Medical Officer had no power to sanction prosecution, falls to the ground. The second argument of the learned counsel was that in order to the milk to be representative sample, it was necessary for (PW 1) Hari Shanker Bajpai to shake milk and, thereafter, to obtain the same. It was further submitted that the burden to prove that the sample of milk was taken by the Food Inspector after fully shaking the entire quantity was on the prosecution and as there was no evidence to establish it, the applicant could not be convicted for the breach of Section 7/16 of the Prevention of Food Adulteration Act. 7. From the statement of Hari Shanker Bajpai (PW 1), it appears that milk was purchased by him from Rajendra Singh by making payment of its price. Rajendra Singh gave the sample after knowing the identity of the Inspector himself. (PW 2) Ram Saran also has made a statement to that effect. 7. From the statement of Hari Shanker Bajpai (PW 1), it appears that milk was purchased by him from Rajendra Singh by making payment of its price. Rajendra Singh gave the sample after knowing the identity of the Inspector himself. (PW 2) Ram Saran also has made a statement to that effect. It is, therefore, not possible to lay blame at the door of Hari Shanker Bajpai that he did not state that the sample was taken by him after fully shaking and staring the entire quantity. 8. Leaving apart what has been stated above, the controversy is about the effect of obtaining sample without shaking the entire quantity. It has been noted by me above that as against the requirement of fatty solids being 4.5%, the fat found was 5.4% whereas non-fatty solids as against 8.5% was 6.7%, hence was deficient by 21%. Fat was 9 more. As was contended before me and that may normally be presumed to be correct that in milk fat may settle on the top. In the instant case, the applicant has been convicted for non-fatty solids being deficient by 21%. The aggregate of the two, according to Appendix B could be 13%. But in the instant case, the aggregate of the two comes to 12.01%. In State of Kerala v. Parameswaran Pillai Vasudevan Nai, 1975 CrLJ 97, a Full Bench held : "The standard fixed under the Act is one that is certain. If it is varied to any extent the certainty of a general standard would be replaced by the vagaries of a fluctuating standard. The disadvantages of the resulting unpredictability, uncertainty and impossibility of arriving at fair and consistent decisions, are great." The observations of the Full Bench have been approved by the Supreme Court in the case of Municipal Committee v. Hazara Singh, AIR 1975 SC 1087 . To the same effect is the law laid down by the Supreme Court in M. V. Joshi v. M. U. Shimpi, 1975 (1) FAC 214. The Supreme Court held ; "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 limit or variability it shall be deemed to be adulterated within the meaning of section 2 of the Act. The Supreme Court held ; "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 limit or variability it shall be deemed to be adulterated within the meaning of section 2 of the Act. If the prescribed standard is not attained the statute treats such butter by fiction as adulterated food though in fact it is not adulterated. To put it in other words by reason of the fiction it is not permissible for the accused to prove that though the standard prescribed is not attained the article of food is not in fact adulterated...... 9. Hence, an offence could be deemed to have been committed if the sample obtained does not conform with the standards laid down by the Appendix B to the Schedule of the Prevention of Food Adulteration Act. In Rajjan Lal v. State, 1976 ACrR 52 relied upon by the learned counsel for the applicant, the sample of cow milk was taken which was found to contain 3.7% fat contents and 5.6% non-fatty solids as against 3.5% and 8.5%. The Court held :- "(1) If the deficiency is either in the fat contents or non-fatty solids the article of food would be deemed to be adulterated. (2) If the aggregate of fat and non-fatty solid contents in the milk is more than the aggregate of the minimum prescribed and the deficiency in one of the contents is marginal, the Court may not punish the accused on the ground that the marginal deficiency may be due to the error in the analysis by the Public Analyst. (3) In case the deficiency is in one of the contents, namely, fat or non- fatty solids and the aggregate is also below the aggregate of the two as prescribed under the rules the article would be deemed to be adulterated. (4) If the deficiency in either of the two contents, namely, fat or non- fatty solids contents is such when the deficiency cannot normally be assigned to the error in analysis by the Public Analyst, benefit may not be available to the accused by holding that the milk was not adulterated." 10. (4) If the deficiency in either of the two contents, namely, fat or non- fatty solids contents is such when the deficiency cannot normally be assigned to the error in analysis by the Public Analyst, benefit may not be available to the accused by holding that the milk was not adulterated." 10. For the law laid down in the above case, it would be found that if the deficiency is even in one of the contents and the aggregate is also below, the aggregate of the two, as prescribed, the article would be deemed to be adulterated. In this case also, the aggregate of the two is below the aggregate of the prescribed standard. The deficiency in non-fatty solids being 21% is not such which may be assigned to the error in analysis by Public Analyst. The applicant would be guilty of the offence. Nagar Swasthya Adhikari v. Sahib Singh, 1982 AWC 243, has been strongly relied upon by the counsel for the applicant, the facts were that the Public Analyst found fat 5.2% and non-fatty solids 7.1%, in sample, whereas according to the standard, there should have been 3. 5% fat and 8.5 per cent non-fatty solids. The deficiency in non-fatty solids was 16 per cent. In this case, the learned Judge after discussing the various decisions, came to the following conclusions : "(1) There is possibility for a sample of genuine milk to have a high percentage of fat contents and at the same time to have a low percentage of non-fatty solid contents. In case the fat contents are more and the non-fatty solids are little less than it can appear that the sample was taken from the top of the can without shaking stirring it (vide the opinion of Dairy Manager, Agricultural Institute, Naini given in the case of Sobha Ram (supra). (2) If the aggregate of the fat and non-fatty solid contents is more than the aggregate of the minimum prescribed and the deficiency in one of the contents is marginal the Courts may not punish the accused on the ground that the marginal deficiency may be due to the error in the analysis by the Public Analyst." 11. Applying the proposition of law laid down in the above case, I find that since there is no high percentage of fat contents, the low percentage of non-fatty solid contents remains unexplained and inexcusable. Applying the proposition of law laid down in the above case, I find that since there is no high percentage of fat contents, the low percentage of non-fatty solid contents remains unexplained and inexcusable. The aggregate of the two is also less than the prescribed standard. Hence, the conviction of the applicant is in accordance with law. 12. In the result, the revision fails and is dismissed. The stay order dated 4-12-81 is vacated. Revision dismissed.