GOPALAKRISHNA KURUP Vs. STATE OF KERALA

JUDGEMENT

(1.) THESE revision petitions have been placed before a division Bench by Sadasivan J. with the following order: The question arising for decision in these revision petitions is as to how long milk can be preserved by the adding of formalin. Views of the various High Courts are divergent on this point. So, I think for an authoritative decision this should go before a Division Bench" It is evident that such a question cannot be answered as a question of law. The fact, that different High Courts had expressed different views, itself shows that none of those High Courts had considered this question as a question of law, because, on a question of law, there cannot be such divergent opinions. It cannot also be that this time can vary from High Court to High Court. Evidently, this time must depend upon the strength of the formalin used, the quantity used, etc. , and may vary from case to case depending upon such circumstances. Four decisions have been cited before us. The first decision is State of Kerala v. C. Chacko (1970 KLT. 458), where Sadasivan J. has said that the normal rule being that formalin can preserve milk for a period of four months only, no purpose would* be served by sending it to the central Food Laboratory for analysis after such period; and that the accused is not expected to experiment it even after four months. With due respect to the learned judge, we feel that the approach was not correct. The sample should have been sent to the Central Food Laboratory; and, if analysis by the Director of the Central Food Laboratory revealed that the milk had not decomposed, the result of the anlaysis should have been taken into consideration too. On the other hand, if the analysis at the Central Food Laboratory disclosed that the milk had already decomposed, then alone the accused should have been acquitted, since, in that case, he had lost his right of getting his sample analysed due to the delay in the prosecution. There was no point in laying down a rule of thumb that, in the case of a particular food article, a particular period alone was the time for sending the sample to the Central Food Laboratory and if the proceeding or prosecution was delayed beyond that period, the accused must automatically be acquitted. It will appear presently that, in one of the cases we consider hereafter, the sample of milk treated with formalin remained good without decomposition for about ten months. The other three decisions are, one. of the Allahaba d High Court in Babboo v. State (AIR. 1970 All. 122), another, of the Gujara t High Court in Gele hira Rabariv. S. V. Pandya (AIR. 1970 Guj. 235) and the third, of the Madhya pradesh High Court in State of Madhya Pradesh v. Shri Tulsiram (AIR. 1970 M. P. 123 ). All these decisions discuss the question only as a question of expert opinion: none of them treats it as a question of law. In the Allahabad case, it was found that, if milk was treated with proper quantity of formalin of proper strength, the milk would retain its qualities without decomposition for ten months. We only add that, if any of these decisions has laid down, as a proposition of law, that milk treated with formalin can remain free from decomposition only for a particular time (which we are not satisfied that any of these decisions has done), then with all respect to the learned judges who have held so, we disagree with that view: we reiterate that this is not a question of law. Yet another decision, the decision of the Supreme Court in Municipal Corporation of Delhi v. Ghis Ram (AIR. . 1967 SC. 970 ). has also been brought to our notice. Their Lordships of the Supreme Court have pointed out that the right conferred on an accused under S. 13 (2) of the Prevention of food Adulteration Act to have the sample given to him analysed by the Director of the Central Food Laboratory is a valuable right; and that the said right should not be denied to him. The effect of this observation is this. If the accused wants his sample to be sent to the Central Food Laboratory, it should be done. If it is sent there and the report received from the Director says that the sample has deteriorated or decomposed, the accused should not be convicted on the basis of the certificate of the Food Analyst. If he is convicted, it is, in fact, depriving him of his right to have his sample tested by the Central Food Laboratory. If the sample has deteriorated or decomposed, the fault is, not of the accused, but of the prosecution in delaying the proceeding. Equally so the accused cannot claim that there was delay of four months or six months, and by that fact alone, the sample should be presumed to have decomposed. There is no such presumption that after a particular period a particular food article (milk in these cases) has decomposed. It is not reasonable or right to lay down any such period: and the sample given to the accused should be tested. And the correctness of this procedure is fortified by the fact that in the Allahabad case referred to above the milk remained good without decomposition for about ten months. Evidently, the so-called rule that, formal in can preserve milk only for four months, assumed in Chacko's case, does not' appear to be correct. Therefore, the delay, as such, in the prosecution is no reason for acquitting the accused, unless the delay has prejudiced him by depriving him of his valuable right under S. 13 (2), which can be decided only if, on testing the sample given to him by the Director of the central Food Laboratory, it is found to have decomposed. The revisions before us are one by the first accused and the other by the third accused, the first accused being The Kottayam' District go-operative Milk Supplies Union Ltd. and the third accused being the Depot manager of the said Milk Supplies Union, on the ground that the Depot Manager sold adulterated milk to the Food Inspector. The prosecution was launched against both the accused persons and another, who was the Business Manager of the Milk Supplies Union. The Business Manager was acquitted; and the petitioners before us were convicted, the first accused vicariously for the act of the third accused, who sold adulterated milk to the Food Inspector. Both the courts have now concurrently found that the Depot M anager sold the milk to the food Inspector; and they have also come to the conclusion that the milk was adulterated on the strength of the certificate of the Public Analyat of the state. The sample of the milk taken at the time of the sale and given to the depot Manager is not now available for analysis by the Central Food Laboratory, because the sample appears to have been tampered with by the Depot Manager, in whose custody it was. Having failed to produce the sample given to him without tampering with it, the attempt now is to take shelter under Chacko's case (the first case referred to by us), which, we have already indicated, has been wrongly decided. The Depot Manager cannot claim that there was delay in the prosecution for a particular number of months beyond which, as a proposition of law, milk will not remain undecomposcd. Without producing his sample, he cannot ask the court to presume legally that his sample has deteriorated. He must establish that the delay has caused prejudice to him and has deprived him of his valuable right under S. 13 (2) of the Act, which he can do only if he produces his sample and the sample is found, on analysis to have decomposed. From the foregoing discussion, what emerges is that the revision petitions have no substance. The convictions and sentences are consequently upheld; and the revision petitions are dismissed. Dismissed. . .