ADULTERATED MILK.

Colonist, Volume LXI, Issue 151036, 30 July 1919, Page 5

ADULTERATED MILK.

WHOLESALE VENDOR. CONVICTED. FINE OF £10~IMPOSED. A important judgment in connection with the recent prosecution of Harry G. Kingsland. farmer, of Appleby, charged with selling adulterated milk, was delivered at the Magistrate's Court yesterday by Mr J. S. Evans, S.M. At the hearing, Senior Sergeant Barrett prosecuted and Mr W. V. Rout appeared for the defendant. The judgment was as follows: — The defendant is charged "that he did on the 9th day of June (7.55 a.m.) 1919, at the Main Road, near Appleby Railway Station, in New Zealand, sell adulterated food, to wit, milk, to Henry Coltman, an officer within the meaning of the Sale of Food and Drugs Act, 1908, without fully informing the purchaser at the time of such sale of the nature of the adulteration, the package in which such milk was sold not having conspicuously printed thereon a true description of the composition of such milk." The facts are that the defendant, who is a dairy-farmer at Appleby sells or supplies milk wholesale to William Andrews, a milk vendor in.Nelson. Delivery under the contract is made at the Railway Station, Nelson. The milk is consigned by the defendant either from Appleby or Richmond railway station. On the morning in question the inspector met the defendant,w ho was bringing the milk to consign it to Andrews ait Nelson. He demanded a sample ana | tendered payment. The defendant sup- ! plied the milk but at first refused payment, but on the inspector insisting he took payment. The inspector divided the sample taken as required by the Act but the defendant being anxious to consign the milk did not wait until he finished. The defendant went on to the railway station and consigned his milk, the Inspector remaining on the road ! dividing and sealing up the sample. The defendant returned in about 10 minutes and the inspector gave him one part, which he took. The Inspector sent one part to the Government Analyst whoso certificate was produced. No objection was taken to the admissibility of the certificate. This sTiows that the sample contained 4.30 per cent fat and 8.28 per cent solids other than fat and that there was 8 per cent of added water calculated from the freezing point. The defendant called no evidence but Mr Rout raises three points as a defence to the charge:—(l) That there was no sale. (2) Lhat the inspector did not inform the defendant that he required the sample for analysis, and (3) that the Act was not complied with in dividing the samples. On the first point Mr Rout relies on Bowden v Sanger and another, 1918, G.L.R. 262, and contends that the defendant is a wholesale supplier and does not sell milk in small quantities to anyone and that the Inspector demanded a sample, which was complied with, but that did not constitute a sale from a' wholesale vendor. In my opinion this objection is not tenable. Bowden v Sanger and anr, is not applicable, in that case the person to whom the "demand" was made was neither the owner of the milk nor the agent of the owner for the purpose of sale. In this ease the defendant himself sells milk which he knows is for human consumption. Section 5 applies to any person selling food and sub-section 1 gives the inspector' the right to "demand" at any place, a sample. By sub-section (4) every person who refuses to comply with the demand is guilty of an olfence. By section 22 <2) the sample soid to the inspector is deemed to 'be a sample sold for human consumption. In my opinion, therefore, there was a sale within the meaning of the Act from a person bound to sell on demand. On the second point Mr Rout relies on Smart v Watts (1895) 1 Q.B. 219. The inspector did not say specifically that he informed the defendant that the sample was for analysis, but he said he complied with Section 7. Ho also says that the defendant asked him if he "had 'taken any samples of his milk (from Andrews) and on being told that he had, he asked the result. The inspector told him it was very unsatisfactory. He then asked if he would give him a copy of the analyst's report and the inspector said, no. In my opinion this is sufficient prima facie evidence that he did tell the defendant the purpose for which he required the sample to shift the burden of proof on to the defendant that he did not. Smart v Watts is also distinguishable from this case. In that case no notice was given and the section corresponding with Section 7 in our Act was not complied with. In the English Act, the requirements of the Act with regard to submitting the sample to the analyst are mandatory. In Section 7 ! they are permissible or optional only and it has been held in Middleton v Incledon, 34 N.Z.L.R. 182, that where an offence is committed under Section 12 it is immaterial whether section 7 is complied with or not. The question of compliance with Section 7 goes only to the ndmissibility of the analyst's certificate m evidence. In this case the certificate was admitted in evidence without objection and I hold there is prima facie evidence of compliance with Section 7 and the defendant has lost his right to object to the admissibility of the certificate. He should have objected to it when it was tendered in evidence. On the third point, this in the first place also goes only to the admissibility of th certificate and the defendant has lost his right to object. In the second place I do not think the objection is tenable. The inspector has to "offer" one part of the sample taken to the seller. This is for the benefit of the seller to enable him if he so desires to have a separate analysis made. If he refuses to take it and there is nothing to compel him to do so, his refusal could not defeat the objects of the Act. In the same way if he chose to go away before the Inspector had completed the separation and sealing of the samples he does so at his own lisk. It would be different if the inspector had-gone away without "offering" the portion to the seller. No authorities were quoted and I can find none directly bearing on the point. There is no suggestion that the inspector tampered with the samples. I hold, therefore that the inspector "offered" a sample to the defendant «nd the fact that the defendant left the inspector to divide the samples and'seal them does not invalidate the steps taken by the inspector. The defendant accepted the sample on his return without demur and no objnction was taken to the admissibility of the analyst's certificate. If there had been no sale at all to the inspector an offence under Section 12, on a sale to Andrews could be otherwise proved but the certificate could not have been used. If no notice of intention to submit the sample to analysis had been given an offence could otherwise have 'been proved hut the certificate would not have.been admissible, and if the sample bad not been given the offence might still have been proved but again the certificate 'would not have been admissible. Coni-r-Hanee with the Act is therefore in my opinion necessary only where it is intonded to prove the offence by Ijhe production of the certificate and the proper time to object to the certificate is when it is tendered in evidence. I hold +,lipv P _ fore that all the objections taken by the defendant's solicitor must fail. There is however another important point that must be considered. The inspector charges the defendant with selling "adulterated food, to wit, milk" as si hove set out. The information does not allege how the food.is adulterated.

Ihe information follows exactly the : wording of Section 12 (1).. No objection was taken to the information at • the hearing and no application was* made to amend it. It is not necessarily sufficient to lay an information in the 1 exact wording of the Act creating the (offence: Joe Gee v Williams (No. 2),27 N.Z.L.R, 932. This information charges the defendant,with selling "adulterated fuod" in general terms. Section 15 defines "adulteration" "and under that section milk may he adulterated in several ways. These may be stated shortly as (a) If it contains any substance which diminishes its nutritive or other benefiI coal properties or operates to the pre- ; judice or disadvantage of the consumer. (b) If it contains or is mixed with any substance of lower commercial value I than, such article in its normal state. (c) If it does not comply with the standard fixed by the Regulations. Also by Section 12 (3) It is an offence to sell food containing any substance the addition of which is prohibited by Regulation. Water is specifically forbidden to be added to milk by Regulations. The certificate of the analyst is made : sufficient evidence in cases to which it applies. The certificate in this case , shows that the sample is deficient in ! solids other than fat as it contains only 8.28 per centum and the Regulation requires it to contain 8.50. This discloses an offence under (c) above quoted. The certificate also shows that the sample contains 8 per cent of added water. | This discloses an offence under both (a) and (b) above quoted. There are therefore three grounds of adulteration disclosed by the evidence, ; any one of which, taken separately, would support a conviction. The addition of water may and in this ! case does give rise to all three, but it does not follow that it is necessarily so and the groirads may arise separately, but the principle is the same.' • If the information charged the defend--1 ant with selling ..adulterated food, to wit, 'milk, adulterated in (a), (b), and (c), it would clearly be bad as disclosing more offences than one, and the prosecution would have to elect which charge he would proceed with. ; The information as it is drawn and 'the evidence in support therefore dis- | close three separate offences for which two convictions at least might stand as ; separate and distinct offences, namely, ' one for not complying with the standard fixe*d by regulation and one at least for the added substance--water. The cvii dence also discloses the offence under Section 12 (3). In my opinion the information might have been objected to , as laid on the grounds that it is capable of sustaining three offences on the evi- | dence tendered and a conviction in terms of the information would be bad: joe Gee v Williams, No 2 (supra) and Re Wong Tim and Henry Wong, 1919, G.L.R. 34. The information should specify the grounds upon which the food is adulterated and if necessary two or ' more informations should be laid where, as in the present case, more than one offence might arise out of the same circumstances. As no objection was taken either to the information or the evidence in support, I may convict of any ' of thrt offences which is disclosed Iby the evidence and included in the informa- ; tion : Huntly v Mcßeirnie, 1917, G.L.R. ■ 646. The defendant calls no evidence i and he is the vendor and the milk was still in his possession and not delivered to the purchasers under his contract. 1 must, therefore, hold that he has added 8 per cent of water to the milk, which is a substance of lower commercial value : than milk. I .shall therefore convict him for that he did on the 9th day of June, 1919. at Appleby road in the' Dominion of New Zealand, sell to Henry Cbltman, an officer within the meaning of the Sale of Food and Drugs Act, 1908, ' an adulterated food, to wit milk, containing a substance, to wit, 8 per cent of water, being of lower commercial value than milk in a pure and normal condition, and in an undeteriorated and sound condition,withoiit fully informing the purchaser at the time 6f such sale of the nature of the adulteration, the cans from which it was sold not having conspicuously printed■thereon a true description of the .composition^ of such food, and he will be fined £10 and ordered to pay Court costs 7s, and 10s (: I the cost of the analyst's certificate.