TMI Blog1961 (2) TMI 84X X X X Extracts X X X X X X X X Extracts X X X X ..... After purchasing the butter, the Food Inspector notified his intention to the appellant that he was going to get the butter analysed. He divided the butter into three equal parts, put them in three separate bottles and duly sealed the bottles in the presence of two panchas. He gave one of those bottles to the appellant, sent one to the Public Analyst and kept the third with himself. The appellant signed the labels on the bottles and also passed a receipt in favour of the Food Inspector in token of the receipt of one of the bottles and that receipt was signed by the appellant and counter-signed by two panch witnesses. The Public Analyst analysed the butter sent to him and, sent his report in due course. In the report it was.stated that the butter contained 18.32% foreign fat, 19.57% moisture and 64.67% milk fat. On October 5, 1957, the Food Inspector filed a complaint in the Court of the Judicial Magistrate, First Class, Than , against the appellant. It was alleged therein that the said butter was found to be adulterated as defined in s. 2(1) (a) of the Act and that. the appellant had committed an offence under s. 16 of the Act by selling the adulterated article of food in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d by learned counsel. At the outset it would be convenient to consider the ingredients of the offence alleged to have been I committed by the appellant. Section 2(1) of the Act defines the word adulterated and it says that an article of food shall be deemed to be adulterated if it satisfies one or other of the conditions prescribed in sub-cls. (a) to (1). We are concerned in this appeal with sub-cl. (1) where under an article of food shall be deemed to be adulterated 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. Section 2(xii) defines prescribed to mean prescribed by rules made under this Act. In exercise of the powers conferred by sub-s. (2) of s. 4 and sub-s. (1) of s. 23 of the Act, the Central Government made rules prescribing, inter alia, the standards of quality of different articles of food. Rule 5 says that standards of quality of the various articles of food specified in Appendix B to the Rules are as defined in that appendix. Rule A.11.05 of Appendix B to the Rules defines butter to mean the product prepared exclusively ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rized, and if ripened cream butter is to be made a pure culture of Streptococcus lactic is introduced to start the desirable souring process. If sweet cream butter is to be made no starter is added. The best storage butter is made from unripened or sweet cream. After pasteurization and ripening the cream is held overnight, when it is churned, washed, salted and worked in the combined churn and worker. (See Encyclopedia Britannica, Vol. 4, p. 469.) In India butter is prepared in the rural areas by the indigenous process out of soured milk and cream, i.e., curd'. In some cities butter is also made directly out of milk and cream; but the percentage of the said production is insignificant compared with the indigenous system obtaining throughout India. Whatever process is adopted, whether butter is taken directly out of milk or taken out of soured milk or cream, it is prepared only from milk. The only difference between the two is that in the case of butter prepared from curd there is an intervening souring process which is not necessary in the, case of butter directly prepared from milk or cream. Shortly stated, butter, by what,ever process it is prepared, is a product prep ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion of ghee was introduced therein in 1956. The authority making the subsequent rule might have thought,, of clarifying the definition of ghee to steer clear of the difficulties raised in the case of the definition of butter. Putting aside the general argument, let us now look at the relevant provisions. The following words in the definition stand out prominently: product prepared exclusively from milk or cream of cow or buffalo, or both To be butter it should comply with the following conditions: (i) it shall be a product from milk or cream; (ii) the said milk or dream shall be that of cow or buffalo, or of both; (iii) the product shall be prepared from the said milk; and (iv) it shall be prepared exclusively from the said milk. Product means a thing produced by nature or a natural process or manufacture. What is the meaning of the word prepared ? The Rules use different words for different milk-products. In the case of butter,, milk. and card, the word used is obtained ; and in the case of ghee the word used is derived . The dictionary meaning of the word prepare is, to bring into proper state for use by some special or technical, process, to m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t adulteration, the learned author quotes Day, J., in Newby v. Sims ([1894] 63 L.J.M.C. 229) as follows: I cannot concur in the contention that because these acts (against adulteration) impose penalties, therefore, their construction should, necessarily, be strict. I think that neither greater nor less strict- ness should be applied to those than to other, statutes. So judged, we have no doubt that the butter prepared' out of curd falls within the plain meaning of the words in the said rule. Reliance is placed by learned counsel for the appellant on the decision of Miabhoy, J., in Narshinha Bhaskar v. State of Bombay (I.L.R. [1958] Bom. 63). The decision is certainly in favour of the appellant. But a full bench of the same High Court in Sadashiv v. P. V. Bhalerao I.L.R. [1959] Bom. 1800) over ruled the said decision. In the latter decision Chainani, C. J., after considering the arguments, observed at p. 1804 thus: The emphasis is, therefore, on the basic material from which butter is prepared and not on the process by which it is made. Dahi is prepared from milk by souring it. Butter prepared from Dahi can, therefore, be said to be butter prepared from milk itse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gulation providing that where a sample of milk contains less then 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 than 3 per cent. if milk fat. It is to be observed that s. 1 of the same Act of 1899, which deals with the importation of adulterated or impoverished milk, provides in sub-s. 7 that for the purposes of that section milk shall be deemed to be adulterated or impoverished if it has been mixed with any other substance, or if any part of it has been abstracted so as in either case to affect injuriously its quality, sub- stance, or nature. 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 none the less deemed to be milk for the purposes of s. 6 of the Sale of Food and Drugs Act, 1875. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot be acted upon. There is an obvious fallacy underlying this argument. 18.32 per cent. of foreign fat is not a percentage in relation to the milk but only in relation to the fat.. Out of the fat in the milk,. the analyst says that 18.32 per cent. is foreign fat. In his own words, The butter fat in the sample 'contains 18.32% foreign fat. If that be so, there is no mistake on the face of the report. The report clearly indicates that the butter sold by the appellant was below the standard prescribed under the rule. If so, it follows that the appellant is guilty of the offence with which he was charged. The High Court sentenced the accused to undergo rigorous imprisonment for two months and also to pay a fine of ₹ 250/-. We agree with the High Court that the offence committed by the appellant is a serious; one and that ordinarily the punishment should be deterrent. In most of the cases of this kind imprisonment would certainly be a suitable sentence. But in this case,; there was a conflict of view even, in the Bombay High Court as regards the question whether butter made from curd would be butter within the meaning of the rule. Indeed, it was brought to our notice, th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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