Prosecution cannot rest on standards for another product when the sampled food has no prescribed standard under the rules.

Prosecution based on standards for skimmed milk powder failed because the sampled article was instant dairy whitener, not the product described in the analyst's comparison. The packing and seizure memo showed a proprietary food containing partly skimmed milk powder and other ingredients, and no prescribed standard existed for that article under the food rules. Rule 37-A(2)(b) treated proprietary food as food not standardised under the Rules, so the standards for another article could not be applied. The proceedings were therefore held not legally maintainable and were quashed.

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Issues: Whether prosecution could continue where the sampled product was instant dairy whitener and not skimmed milk powder, and no prescribed standard existed for the product under the food rules.

Analysis: The product description on the packing and in the seizure memo showed that the article was instant dairy whitener containing partly skimmed milk powder with other ingredients, not skimmed milk powder. The analyst compared the sample with the standards for skimmed milk powder, but those standards were inapplicable because the article was not shown to be a standardised food. Rule 37-A(2)(b) treated proprietary food as food not standardised under the Rules, and the provision relied on by the respondents concerning approval of infant dairy milk products did not govern the present product. A prosecution founded on the standards of another article, where no standard had been laid for the article actually sampled, could not be sustained.

Conclusion: The prosecution was not legally maintainable and the proceedings were quashed in favour of the appellant.

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