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Judgment
N. Krishnaswamy Reddy, J.—These appeals have been filed by the learned Public Prosecutor against the orders of acquittal. The
respondents in all these cases Were prosecuted for offences under Sections 2 (i) (a) (1), 7 (i) and 16 (1) (a) (i) of the Prevention of Food
Adulteration Act and Clause A. 11.11 in Appendix B to Rule 5 of the Prevention of Food Adulteration Rules. As the point raised in all these
appeals is the same, they are disposed of together. The subject-matter in all these appeals is ice cream made of skimmed milk.
The respondent in C.A. No. 212 of 1965 was the proprietor of Vasudev Ice Factory, Cool house at Door No. 166, West Masi. Street,
Madurai. The Sanitary Inspector, Madurai Municipality, purchased 600 grams of ice cream from the respondent for sample. On analysis by the
Analyst, the sample was found to be deficient in fats to the extent of 80 per cent.
In C.A. No. 291 of 1965, the Sanitary Inspector purchased 600 grams of ice cream from the respondents as sample. On analysis, it was found
that the sample Was deficient in fat to the extent of 66 per cent.
The Food Inspector filed complaints against the respondents in both these appeals before the District Magistrate, Madurai. It Was contended
by the respondents that the ice cream Was made of skimmed milk and that under the Rules, it need not contain fat. The learned District Magistrate
acquitted the respondents on the main ground that the ice cream made of skimmed milk need not contain fat.
In C.A. No. 729 of 1965, the respondents from whom ice cream was seized by the Food Inspector were prosecuted before the Additional
First Class Magistrate No. 1, Madurai. The ice cream seized on analysis was found to be deficient in fat to the extent of 47 percent. The
Additional First Glass Magistrate convicted all the respondents and sentenced each of them to pay a fine of Rs. 100. On appeal, the Sessions
Judge, Madurai acquitted the respondents on the ground that the ice cream Was made of skimmed milk and that it need not contain fat according
to the definition of Ice Cream'' made of skimmed milk.
In C.A. No. 877 of 1965, the respondents from whom ice cream was seized were prosecuted before the Additional First Glass Magistrate II,
Madurai. The ice cream on analysis was found to be deficient in fat to the extent of 14 per cent. It was contended by the respondents that the ice
cream Was made of skimmed milk. The Additional First Glass Magistrate convicted the respondents arid sentenced each of them to pay a fine of
Rs. 250. On appeal, the Sessions judge acquitted the respondents holding that the ice cream seized from them Was made of skimmed milk and no
fat is required in such ice cream.
The learned Public Prosecutor does not dispute that what was seized from the respondents in all these appeals was ice cream made of skimmed
milk. But, however, he Would contend that 10 per cent, of fat required for an ice cream must also be present in ice cream made of skimmed milk
and that the findings of the lower Courts that no fat is required in ice cream made of skimmed milk is based upon the erroneous conception of the
definition of '' Ice Cream'' and '' Ice Cream made of skimmed milk ''. It is, therefore, necessary to note the relevant rules and definitions framed
under the Prevention of Food Adulteration Act.
Rule 5 of the Prevention of Food Adulteration Rules lays down standards of quality of the various articles of food specified in Appendix B to the
Rules as defined in that Appendix.
''Ice Cream'' is defined in A. 11.11 to Appendix B as follows:
Ice cream means the frozen food made with cream, milk or other milk products, sweetened with sugar or honey and with or without (a) egg,(6)
fruits, (c) nuts, (d) chocolates, (e) stabiliser not more than 0.5 per cent of the finished product, and (/) permissible flavour or colour. It shall contain
not less than 36 per cent by Weight of solids and 10 per cent, by weight of milk fat except that when the ice cream contains fruits or nuts or both,
the content of milk fat may be proportionately reduced but not less than 8.0 per cent by weight. It shall not contain any starch, artificial sweetening
agent or any other extraneous matter. Ice cream prepared from skimmed milk shall not contain less than 8.5 per cent of milk solid other than milk
fat.
This definition broadly makes a distinction between ice cream made with cream milk or other milk products on the one hand and ice cream
prepared from skimmed milk on the other. In the ice cream made with cream, milk or other milk product, there must be 36 per cent solids and 10
per cent milk fat excepting the ice cream containing fruits or nuts or both, where the content of milk fat should not be less than 8.0 per cent Though
skimmed milk appears to be a milk product, it has been specifically separated from the other milk products and brought as separate category of
ice cream prepared with such skimmed milk which shall contain at least 8.5 per cent of milk solids.
The point to be determined is whether milk fat is required to be present in the ice cream made of skimmed milk. ''Skimmed Milk'' is defined in
A. 11.02 as milk from which all or most of the milk fat has been removed by mechanical or any other process and includes '' separated milk'' or ''
machine skimmed milk '' and the milk solids other than milk fat shall not be less than 8.5 per cent It is clear from this definition that the fat either
wholly or substantially is removed in the skimmed milk and that it should contain not less than 8.5 per cent of milk solids. If ice cream is prepared
with skimmed milk, in the nature of things, it cannot contain fat unless cream is added. '' Ice Cream '' under definition A. 11.11 can be made with
cream, milk or other milk products and also with skimmed milk which is a milk product. But cream, milk or other milk products which contain milk
fat is taken as one category in making ice cream, and skimmed milk where fat is wholly of substantially removed, is taken as another separate
category. ''Cream'' under A. 11.10 should contain not less than 23 percent, of milk fat. But if ice cream is made of cream, the minimum milk fat
required is only 10 per cent, besides other ingredients. ''Cow milk'' under A. 11.01.01 shall contain 3 per cent to 4.0 per cent of milk fat besides
8.5 per cent. of milk solds. '' Buffalo milk '' under A. 11.01.02 shall contain not less than 5 to 6 per cent of milk fat and 9 per cent of milk solids. ''
Goat or sheep milk'' under A. 11.01.03 shall contain not less than 3 per cent to 3.5 per cent of milk fat and 9 per cent of milk solids. All the milk
products other than skimmed milk like toned milk (A. 11.04), Double Toned Milk (A. 11.04.01), standardised milk (A. 11.04.02), butter (A.
11.05), Koha (A. 11.13) and ghee (A. 11.14) shall contain milk fat of various percentages mentioned in the respective definitions. The products of
skimmed milk do not require the presence of fat whereas minimum milk solids are to be present. (Refer to A. 11.06 (b) skimmed milk, dahi of
curd; (A. 11.08) condensed skimmed milk, (A. 11.09.01 skimmed milk Chhanna and A. 11.10.02 dry skim milk). In these cases, Various
percentages of milk alone are required and milk fat is completely excluded. From this analysis, it is clear that whenever anything is made of
skimmed milk or whatever product Was obtained from skimmed milk, it need not contain fat. As already stated, ice cream can be made of either
cream or milk of any milk product of skimmed milk. There is no indication in the definition of'' Ice Cream'' that cream should be present in ice
cream made of skimmed milk. If ice cream can be made of milk or any other milk product without cream, it can equally be made of skimmed milk
without cream. The learned Public Prosecutor is unable to say that the ice cream made of skimmed milk should contain cream.
If skimmed milk, as contended by the learned Public Prosecutor should contain fat, there cannot be any difference between ice cream made of
milk and ice cream made of skimmed milk. Milk, besides the milk fat should contain at least 8.5 per cent, of milk solids. Skimmed milk also must
contain not less than 8.5 per cent of milk solids. So far as milk solids are concerned, there is no difference between milk and skimmed milk. If ice
cream is made of milk or skimmed milk, it should invariably contain not less than 8.5 per cent of milk solids. Ice Cream made of milk of cream or
any other product should contain the specified percentage of milk fat in the definition of ''Ice Cream.'' If ice cream made of skimmed milk were
also to contain the similar percentage of milk fat, there will be practically no difference between ice cream made of milk and skimmed milk. This
cannot be the intention of the rule-makers. As noted already, skimmed milk and any product of skimmed milk is distinctly defined and its standards
are fixed. It appears, a portion of the definition of'' skimmed milk'' in A. 11.02 that the milk solids other than milk fat shall be not less than 8.5 per
cent is bodily carried over in A. 11.11. The words ''other than milk fat'' mentioned in A. 11.11 is a repetition of what is mentioned in A. 11.02.
These words mean, any fat left over in the skimmed milk in the process of removal of fat either by mechanical or any other process. That fat which
is left over has to be ignored as fat is not a standard required for skimmed milk.
For the foregoing reasons, I am of the opinion that ice cream made of skimmed milk need not contain milk fat; but it should contain not less
than 8.5 per cent of milk solids. The respondents in all these appeals have been rightly acquitted.
The appeals are dismissed.