JUDGMENT G.D. Dube, J.
1. This appeal has been preferred against the judgment and order of Manrakhan Lal, Sub-Divisional Magistrate, Kiraoli, District Agra acquitting the respondents of the charge Under Section 7/16, Prevention of Food Adulteration Act (hereinafter referred to as Act).
2. The allegations against the respondents were that a sample of milk was taken from him on 22-2-1972. 18 drops of 40% formalin were added to each part of sample of the milk. The sample was sent to Public Analyst. It was found to be adulterated to the effect that it contains less non-fatty solids. The public analyst had reported that no change had taken place in the constituents of milk. The learned Magistrate had heard the witnesses of both the sides. The respondents had pleaded not guilty. The learned Magistrate had considered the sample unworthy unless it contained 0.1 ml. formalin per 2.5 ml sample. The learned Magistrate had relied upon a copy of judgment in Criminal Appeal No. 2688 of 1971, Nagar Swasthya Adhikari, Nagar Mahapalika, Agra v. Sri Krishan decided on 28-8-1974. On this basis the respondents were acquitted of the charge.
3. It is noteworthy that the respondents had been served but they did not appear despite service.
3A. It has been contended on behalf of the appellant that the provision of R. 20 framed under the act are only directory and not mandatory. Even if there is less formalin, and food material retains its character, then this cannot be held to be a ground for acquitting the respondent of the charge Under Section 7/16 of the Act. In support of his contention the learned counsel for the appellant, (Nagar Swathya Adhikari) has relied upon Gajraj v. State of U.P. (1984) 2 FAC 4 (All), B. M. Darji v. Biharilal Karulal, (1984) 2 FAC 53 (Guj) (FB) and State of Punjab v. Hari Chand (1985) 1 FAC 279.
4. In the case of Gajraj a single Judge of this Court had observed that R. 20 of the Prevention of Food Adulteration Rule, 1955 was simply directory in nature and not mandatory. He relied upon (1979) 1 SCC 202 : (1980 Cri LJ 809). R. 20 mentioned above reads as under :--
"20. Preservative in respect of milk, cream, dahi, Khoa and gur. The preservative used in the case of samples of any milk (including toned, separated and skimmed milk) (standardised milk chhanna, skimmed milk Chhanna), (cream, ice-cream, mixed icecream, ice candy, dahi, Khoa and gur) in liquid or semi-liquid form shall be the liquid commonly known as "formalin" that is to say, a liquid containing about 40 percent of formaldehyde in acqueous solution in the proportion of (0.1 mil. 1 (two drops) for 25 m. or 25 grams)".
5. In B. M. Darji's case (1984 Cri LJ 1627) (Guj) a Full Bench of Gujrat High Court had also held that addition of preservative is for the purpose of maintaining the sample in a condition suitable for the analysis and R. 20 indicates that in the case of any sample of milk the preservative to be added is the liquid commonly known as 'formalin'. It was further held that the formalin plays the roll of retarding the process of decomposition of milk. In this case also it was held that R. 20 of the Food Adulteration Rule does not speak of strict compliance of that rule. It was held that the object of R. 20 is to preserve the sample in a condition fit for analysis. The Gujarat court had not held that by adding a lesser amount of formalin i.e. 18 drops instead of 20 drops the sample had become unfit for analysis.
6. In the third case of State of Punjab v. Hari Chand (1985) 1 FAC 279) also the Division Bench of Punjab and Haryana High Court had held that adding of 18 drops instead of 20 drops does not make much difference so long as the sample retains its original characteristics.
7. The lower court had relied upon the unreported judgment of this Court, a copy of which has been placed on the file of the lower court. In the said judgment there was a finding about the effect of adding less quantity of formalin in the milk. The lower court had blindly relied upon the judgment but no finding had been recorded about the effect of alleged less quantity of formalin. There was no material or record to show that the adding of lesser amount of formalin had any adverse effect on the analysis. Public Analyst found the material fit for analysis. I find that the lower court had applied the judgment to the facts of the case without applying his mind to the matter.
8. The appeal is allowed. The order of acquittal passed by the lower court is set aside. The case shall go back to the Chief Judicial Magistrate, Agra who will decide himself or get it decided by some other Magistrate. No additional evidence shall be accepted on record. The learned counsel for the parties shall be however, given opportunity for hearing and then the case shall be disposed of according to law.
9. The learned Magistrate shall take step to summon the accused and give them a date for hearing. The record of the case be sent immediately to the court below.