Judgment.- The Public Prosecutor filed this appeal against the judgment of the learned Additional District Munsif-cum-First Class Magistrate, Madanapalle, in C.C. No. 162 of 1963 on his file acquitting the sole accused, Emmili Akkamma, of offence under section 7 read with section 16(1) of the Prevention of Food Adulteration Act, 1954. The relevant facts are as follows. The Food Inspector (Health Inspector) of the Local Authority, Arogyavaram,filed a complaint in the Court of the learned Magistrate to the following effect. The accused had a licence to sell curd and buttermilk in Sanatorium Local Authority area. During July, 1963, due to sudden outbreak of cholera in neighbouring villages, all such vendors were permitted by Sanatorium Local Authority to sell heated milk instead of curd and buttermilk till the neighburing villages were free from cholera. During that period, all curd and buttermilk vendors were selling only heated milk in the Sanatorium. On 24th July, 1963, the Food Inspector purchased three soligas of heated milk, which was mixture of cow, buffalo and goat milk, observing due formalities. On analysis, it was found to contain 15 per cent. of extraneous water as calculated from the content of non-fatty solids. The prosecution examined two witnesses, namely, the Food Inspector (P.W. 1) and the local postman (P.W. 2) who was present at the time when the purchase was made by P.W. 1 from the accused. Both of them deposed that the accused said at that time that she had brought mixture of cow, buffalo and goat milk, which had been boiled and cooled, for purposes of sale. In the panchanama (Exhibit P-3), which P.W. 1 prepared on the spot and was signed by P.W. 2, this fact was mentioned. The accused denied the offence, when examined under section 242, Criminal Procedure Code and pleaded as follows: “I told him that I had added buttermilk to the milk and the Health Inspector told me that the notice served on me was to that effect. He paid me a sum of Re. 0.30 nP. I was weeping. I do not know how many soligas of milk he took.....................................................The postman was not present then. He was looking into books inside. While I was weeping, they took milk...........................The Health Inspector issued to me a licence to sell buttermilk. I was selling buttermilk. There was cholera in that area. 0.30 nP. I was weeping. I do not know how many soligas of milk he took.....................................................The postman was not present then. He was looking into books inside. While I was weeping, they took milk...........................The Health Inspector issued to me a licence to sell buttermilk. I was selling buttermilk. There was cholera in that area. So P.W. 1 told me that the milk which was boiled and cooled and to which buttermilk was added only should be sold. So I added buttermilk to the milk which was boiled and cooled and I was selling the same.” She examined one defence witness (D.W. 1) who was a resident of Gandlapalli, the village of the accused. He deposed as follows: “There was cholera in the villages in July. She was boiling the milk and cooling the same and was selling it after adding buttermilk to it. She was doing like that as she was instructed to do so by the Health Inspector due to prevelance of cholera. In the second week of July, I was going to Madanapalle via Sanatorium. At that time, the Health Inspector instructed the accused to boil the milk, cool it and sell it after adding butter-milk to it.” The learned Magistrate believed the evidence of P.Ws. 1 and 2 and held that the accused brought a mixture of cow, buffalo and goat milk which was boiled and cooled for purposes of sale but, all the same, he acquitted the accused relying on three decisions in Municipal Board, Kanpur v. Badloo1, Nanduram v. State2, and Trivandrum Corporation v. A. Antony3, on the following ground: “From a consideration of the above three-quoted decisions relied upon by the accused, it is clear that no weight can be attached to the report of the Public Analyst which does not give full details for arriving at the conclusion that the milk is adulterated. In the present case also, the Public Analyst has not given what the actual water content of the sample of milk was. In the present case also, the Public Analyst has not given what the actual water content of the sample of milk was. I am not able to follow the conclusion of the Public Analyst that the sample of milk contains 15% of extraneous water in the absence of any details regarding the actual water content of the sample of milk sent for analysis and what the water contained should be in normal pure milk.” In this case, the opinion of the Public Analyst (Exhibit P-4), runs as follows: “I further certify the I have caused to be analysed the aforementioned sample, and declare the result of the analysis to be as follows: Fat ... 2.0% Solids-non-fat ... 7.6% Whereas clause A-11 in Appendix B to the Prevention of Food Adulteration Rules, 1955 requires that milk when sold without any indication as to whether it is derived from cow, buffalo, goat or sheep shall contain not less than 9.0% solids-non-fat as in the case of buffalo milk, and am of the opinion that the sample contains 15% of extraneous water as calculated from the solids non-fat and is, therefore, adulterated. Observation.-No decomposition had taken place in the article that would interfere with the analysis.” In the present case, the complaint mentions an offence as follows: “Section 16(1) and section 7 read with section 2(1)(a)and (l) and rule 44(b).” Section 2(1) runs as follows: “2. In this Act, unless the context otherwise requires- (i) ‘Adulterated’,-an article of food shall be deemed to be adulterated- (a) If the article sold by a vendor is not of the nature, substance or quality which it purports or is represented to be;.................................................. (l) 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;” In Trivandrum Corporation v. A. Antony3, the report of the Public Analyst showed the following facts as against what was prescribed in clause A 11-01-02 in Appendix B to the Rules under the Prevention of Food Adulteration Act What was found. Prescribed in Cause A. 11.01.02 Solids-non-fat (buffalo milk) ... 9% Minimum of 9% Fat ... 5.4% Minimum of 5.0% Freezing-point (Hortvet’s method) ... 0.49°C Nothing is prescribed. Prescribed in Cause A. 11.01.02 Solids-non-fat (buffalo milk) ... 9% Minimum of 9% Fat ... 5.4% Minimum of 5.0% Freezing-point (Hortvet’s method) ... 0.49°C Nothing is prescribed. In the certificate, it was also stated as follows: “and I am of the opinion, that the said sample contains not less than seven per cent. (7%) of added water as calculated from the freezing point (Hortvet’s method) and is therefore adulterated.” It is clear that, when the standard of quality laid down in rule 5 read with clause A 11-01-02 in Appendix B was applied, the milk was not adulterated. The freezing point which the Analyst ascertained and relied on to hold that the milk was adulterated is not laid down or recognised by rule 5 and Appendix B as a basis. Apparently, the Analyst relied on the Hortvet’s method and freezing point for the purpose of rule 44(b). But, the Analyst did not indicate the factual data on which he reached conclusion that the milk contained 7 per cent. of added water. In particular, he did not indicate what was the freezing point of pure milk and of the sample and the relationship between variation of freezing point and quantity of added water. Govinda Menon, J., observed as follows at page 125: “The certificate of the Analyst should contain the factual data which the analysis should reveal and not merely the opinion of the Public Analyst as to what that data indicates about the nature of the article of food. Otherwise if such opinion were to be held to be conclusive evidence about the nature of the article of food the merit of the case against the accused would really be decided by the Public Analyst and not by the Court................” The real basis of the decision was that the Public Analyst held the opinion that the milk was adulterated purely on the basis of freezing point of the sample though the milk came up to the standard of quality which was actually prescribed in clause A 11.01.02 and that the Public Analyst did not even mention as to what ought to be the freezing point of unadulterated milk and how he arrived at the figure of 7 per cent. adulteration from the freezing point. That decision does not apply to the present case. adulteration from the freezing point. That decision does not apply to the present case. In Municipal Board, Kanpur v. Badloo1, the milk concerned was a mixture of cow’s milk and buffalo’s milk. The contents as disclosed by the Public Analyst were as follows: Extent of sample. Fat ... 4.8% Non-fat-solids ... 7.4% Adulteration was reported to be about 15 per cent. of added water. Minimum of fact and non-fat solids prescribed in Appendix B for Uttar Pradesh is as follows: Fat ... A 11.01.01 for cow ... 3.5% Solids ... A 11.01.02 for buffalo ... 6% Non-fat ... A 11.01.01 for cow ... 8.5% Solids ... A 11.01.02 for buffalo ... 9.0% The learned Judge observed as follows (at page 1057): “The report of the Public Analyst does not state what was the actual percentage of water in the sample and unless that is specified it is not possible for the Court to test the accuracy of his opinion since standards vary for various reasons. It must be remembered that it is the Court, not the Public Analyst, who is the ultimate Judge of the question. The report must, therefore, be ignored altogether.” The learned Judge worked out the mean standard in the mixture of milk of cow and of buffalo and, on that basis, held that it was difficult to reconcile with this calculation the opinion of the Public Analyst that the sample contained about 15 per cent. of added water and that it would be unsafe to hold on the basis of the report of the Public Analyst that the respondent was guilty of contravening the provisions of rule 44(b). The learned Judge, after referring to the Rules, observed as follows (at page 1057): “From the above summary of the pertinent provisions of the Act and the Rules, it would appear that there are no statutory standards, of quality or statutory limits of componental variability for mixed milk of cow and buffalo. The Public Analyst has first found the mean between the prescribed standards of cow milk and buffalo milk; he has then tested the sample by the mean standard. His opinion that the sample was adulterated is therefore based upon the mean standard, which is his own creation and has no statutory support. It would be illegitimate to coerce conformity with his standard by penal sanction. His opinion that the sample was adulterated is therefore based upon the mean standard, which is his own creation and has no statutory support. It would be illegitimate to coerce conformity with his standard by penal sanction. Courts of law would refuse to accord it any sanctity until it has received statutory acknowledgment.” The question whether a mixture of cow’s milk and buffalo’s milk could contain a percentage of non-fat solid which was lower than the minimum percentage for cow’s milk and also lower than the minimum percentage for buffalo’s milk if the mixture were not adulterated and whether a contravention of rule 5 read with Clause A-11 of Appendix B stood proved merely by the figure of non-fat solid content was not raised or considered in that case. The question considered was whether the, opinion of the Analyst that there was 15 per cent. of added water was acceptable and whether there was contravention of rule 44(b). The learned Judge held as follows (at page 1057): “Water was, therefore, in excess by 1.3 per cent. It is difficult to reconcile with this calculation the opinion of the Public Analyst that the sample contained about 15 per cent. of added water. The report of the Public Analyst can, therefore, have little probative value, and it will be unsafe to hold on its basis that the respondent is guilty of contravening the provisions of rule 44(b).” In the present case, the complaint mentions section 2(i)(l). The question of offence being committed by contravention of rule 5 read with Clause A-11 of Appendix B directly arises. The milk concerned in this case was mixture of milk of cow, buffalo and goat. In Clause 11.01.03, it is provided as follows: “Where milk, other than skimmed milk, is sold or offered for sale without any indication as to whether it is derived from cow, buffalo, goat or sheep the standard prescribed for buffalo milk shall apply.” If this clause applies, the milk fat content (2.0 per cent.) of the sample, as well as the non-fat solid content (7.6 per cent.), fall below the prescribed standard as mentioned in section 2(i)(l) i.e., below the respective minimum prescribed in Clause A. 11.01.02 namely, 5 per cent. and 9 per cent. and, therefore, there is contravention of rule 5 which is an offence under section 7 read with section 16(1) of the Act. and 9 per cent. and, therefore, there is contravention of rule 5 which is an offence under section 7 read with section 16(1) of the Act. Even if the provision in the last sentence of Clause A. 11.01.03 does not apply to the present case, the percentage of fat found in the sample concerned in this case viz., 2.0 per cent. is less than the minimum prescribed for each of cow’s milk (3.5 per cent.), buffalo’s milk (5.0 per cent.) and goat’s milk (3.0 per cent.) and similarly, the percentage of non-fat solid found in the sample namely, 7.6 per cent. is also less than the minimum prescribed under Clause A-11 for each of cow’s milk (8.5 per cent.) buffalo’s milk (9 per cent.) and goat’s milk (9 per cent.). So, in whatever proportion these various items of milk had been used in the mixture by the accused, the percentage of fat could not be as low as 2.0 per cent. unless there was adulteration and, independently, the percentage of non-fat solids could not be as low as 7.6 per cent. unless the milk was adulterated. There is a clear contravention of rule 5 read with Clause A-11 of Appendix B. This is sufficient to prove an offence under section 7 read with section 16(1) without further proof of the quantity (as percentage figure) of water added to adulterate the milk. Even on this basis alone, the accused can be convicted of offence under section 7 read with section 16(1) of the Act. The learned Public Prosecutor states that he has instructions that the percentage of adulteration by water is calculated on the basis of the non-fat solids alone. He has explained how the percentage of adulteration was calculated by the Analyst. Adopting that system of calculation, the position is as follows. Let us suppose that 100 (one hundred) grams of unadulterated milk of buffalo or goat is available. Then it would contain 9.0 gms. of non-fat solids. Supposing water, which contains no fat or non-fat-solids, is added in sufficient quantity so that the same quantity namely, 9.0 gms. becomes 7.6 per cent. in the resultant quantity of adulterated milk. Then, the total quantity of adulterated milk would be equal to 100 x = 118. The quantity of water, which would have been added to 100 gms. Supposing water, which contains no fat or non-fat-solids, is added in sufficient quantity so that the same quantity namely, 9.0 gms. becomes 7.6 per cent. in the resultant quantity of adulterated milk. Then, the total quantity of adulterated milk would be equal to 100 x = 118. The quantity of water, which would have been added to 100 gms. of milk as diluted, would be equal to 118 minus 100 = 18 gms. Thus, the quantity of water added would be 18 per cent. As 9 per cent. is prescribed as minimum for buffalo’s milk, the quantity of 18 per cent. is also a minimum. This stands unaffected by the magnitude of the content of fat solids in the milk. In the same manner, if 100 gms. of pure unadulterated cow’s milk is adulterated with water so as to reduce the non-fat-solid percentage from 8.5 per cent. to 7.6 per cent. the percentage of water added would be 100 x minus 100 = 12 per cent. (This 12 per cent. is minimum for cow’s milk). If the unadulterated base contains 50 per cent. of cow’s milk and the other 50 per cent. of buffalo’s milk or goat’s milk or a mixture of both, then the percentage of non-fat-solid in it would be = 8.75 (minimum). If this were diluted with water so as to reduce the percentage of non-fat solid to 7.6, then the percentage of water which would be added is equal to 100 x minus 100 = 15 per cent. (minimum). The Analyst has adopted this mean value of 8.75 to arrive at the figure of 15 per cent. of added water. This involves an assumption that the unadulterated base, which was a mixture of cow’s milk, buffalo’s milk and goat’s milk which the accused had and which the accused diluted by adding water, contained 50 per cent. of cow’s milk. This assumption was without any basis of fact. If the percentage of cow’s milk in the unadulterated mixture were nearly 100, the adulteration would have been only nearly 12 per cent. (minimum). But, it can be safely said that the percentage of water added for dilution must be not less than 12 per cent. which is the lower of the two minimum values of 12 per cent. and 18 per cent. (minimum). But, it can be safely said that the percentage of water added for dilution must be not less than 12 per cent. which is the lower of the two minimum values of 12 per cent. and 18 per cent. In Nandu Ram v. State1, the report of the Public Analyst mentioned that the milk analysed was adulterated with 10 per cent. of added water. The learned Judge relied on the decision in Municipal Board, Kanpur v. Badloo2and held that the report of the Public Analyst was defective as it did not state what was the actual percentage of water in the sample. In the present case, the learned Public Prosecutor has explained to me how the percentage of adulteration is arrived at. I find that the data is sufficient to show the extent to which adulteration is made and to show that there was offence of adulteration. I find that the milk is adulterated with not less than 12 per cent. of water accepting the standards as given in Clause A-11, Appendix B to the Rules. The learned Advocate for the respondent, Shri Jayachandra Reddy, contends that the milk was boiled and cooled and that, therefore, the standard given in Clause A-11 should not be adopted because Clause A-11.01 gives the description as follows:— “Milk means the normal clean and fresh secretion obtained..........” It cannot be said that the definition does not apply to heated milk. I find that the prosecution has satisfactorily established that the milk was adulterated with water and that the accused is guilty of offence under section 7 read with section 16(1) of the Act as charged. I, therefore, allow this appeal and set aside the order of acquittal of the accused by the learned Magistrate. It appears from the evidence that the accused is a young woman who was originally selling only curds and buttermilk under a licence and had to sell only heated milk in July, 1963 because of the direction of the authorities in view of the prevalence of cholera. She had already undergone the worry and expense of trial in the lower Court and appeal here. I consider that a sentence of fine of Rs. 15 (fifteen only) will be sufficient to meet the ends of justice and accordingly award that sentence. In default of payment of fine, she will undergo simple imprisonment for one week. She had already undergone the worry and expense of trial in the lower Court and appeal here. I consider that a sentence of fine of Rs. 15 (fifteen only) will be sufficient to meet the ends of justice and accordingly award that sentence. In default of payment of fine, she will undergo simple imprisonment for one week. Time for payment of fine is granted as one month from the date of receipt of the order in the trial Court. A.B.K. ----- Appeal allowed.