NAGA SWASTHYA ADHIKARI Vs. SAHIB SINGH

JUDGEMENT

(1.) This appeal is directed against the order dated April 3, 1976 passed by Judicial Magistrate first class Agra ac quitting respondent Sahib Singh of an off ence punishable under Section 16 of the Pre vention of Food Adulteration Act, 1954, here-hereinafter called the Act. It is undisputed that on October 14, 1973 at 7. 30 A. M. V. M. Kulshareshth (P. W. 1) Food Inspector Nagar Mahapalika Agra took sample of cow's milk from Sahib Singh in mohalla Khataina. It is further undisputed that the Public Analyst found fat 5. 2% and non-fatty solids 7. 1% in sample. According to the standard there should be 3. 5% fat and 8. 5% non-fatty solids in cow's milk. The sample was, therefore, deficient in, IOTI-fatty solids by about 16%. The Magistrate referred to three cases. Municipal Committee v. Hazara Singh A. I. R. 1975 S. C. 1087, Rajan Lal v. State 1976 A. C. C. 52, and Sultan Singh v. State 1973 Cr. L. J. 1413, and mainly relying on the case of Rajan Lal held that there was marginal deficiency in non-fatty solids and therefore, the respondent was end titled to benefit of doubt. The contention of Sri P. N. Mehrotra, counsel for the appellant is that the Magis trate was not justified in acquitting Sahib Singh. On the other side Sri Tejpal coun sel for Sahib Singh urged that it was not a fit case for interference by this Court in appeal. Learned counsel for the parties have heard. They have cited various cases. In the case of State of Kerala v. Para-meswaran Filial Vasudevan Nai 1975 Crl. L. J. 97 (Kerala) F. B, a sam ple of cow's milk was taken. The Public Analyst found that it contained milk fat 4. 8% and non fatty solids 7. 7%. In this way the sample was found to contain not less than 9% of added water. The Magistrate ac quitted the accused respondent on the ground that the percentage of added water was neg ligible. The Magistrate followed an earlier decision of the Kerala High Court. That de cision was based on the decision of the Sup reme Court in Criminal Appeals Nos. 235 and 236 of 1964. In these two cases sample of buffaloes milk was taken from a co-ope rative milk union. In one sample non-fatty solids were less by 1% and in another sam ple by 0. 4%. The prosecution applied for permission to withdraw the two cases. The Magistrate allowed the prosecution to do so and acquitted the accused. In these circum stances, the Supreme Court did not interfere with the order of acquittal. The relevant observation made by the Full Bench reads as follows:- "the standard fixed under the Act is one that is certain. If it is varied to any extent the certainty of a general standard would be replaced by the vagaries of a fluctuating standard. The disadvantages of the resulting unpredictability, uncertainty and impossibility of arriving at fair and consistent decisions, are great. " The Full Bench set aside the order of acquit tal and convicted the respondent. The above observation of the Full Bench was approved by the Supreme Court in the case of Municipal Committee, Amritsar v. Hazara Singh (A. I. R. 1975 S. C. 1087 ). In this case the sample of milk did not have required percentage of non-fatty solids. The Sessions Judge ignor ed the minor deficiency and acquitted the accused. In appeal the High Court did not interfere with the order of acquittal. The Municipal Committee, Amritsar approached the Supreme Court with the allegation that it was a test case and important question of law arose. It was, however, stated on be half of the Municipality that it would no press for the conviction of the respondent. Te Supreme Court held that the appeal was ill-advised and misconceived and unnecessary and consequently dismissed the appeal. In the course of the judgment the Supreme Court, no doubt, approved the above obser vations made by the Full Bench of the Kerala High Court. Sri P. N. Mehrotra then referred to the ease of Megh Singh v. State (1979 A. L. J. 99 ). In this case there was deficiency in non-fatty solids in the sample of milk by about 18%. The sample of milk contained 7% non- fatty solids. There was no deficiency in fat con tents. The appellant-accused was convicted by the Magistrate and his conviction was confirmed in appeal by the 1st Additional Sessions Judge. Then he came in revision before this Court. Taking into consideration the ratio in the case of Municipal Commit tee, Amritsar v. Hazara Singh (supra) and after considering some other cases the Court (Hon'ble P. N. Bakshi, J.) found no sub stance in the revision and dismissed it. In the case before me the deficiency in the non-fatty solids was about 16% but the fat contents were more than the prescribed, standard. Sri P. N. Mehrotra then referred to the case of Sobha Ram v. State (1966 A. C. C. 332 ). In this case a sample of mixed milk of cow and goat was taken. The Public Analyst found that it contained fat 4,3% and non-fatty solids 6. 1%. Thus the fat contents were more than the prescribed standard and non-fatty solids were less than the prescribed standard. The accused was convicted by the Magis trate and his conviction was upheld by the Civil and Sessions Judge. In revision, the High Court examined Public Analyst. He expressed the opinion, "very often vendors sell adulterated buffalo milk as cow's milk or mixed milk and in such cases the fat percentage is above the prescribed minimum while non-fatty solids below the prescribed minimum. The accused-revisionist was not satisfied with the replies given by the Public Analyst and insisted on examining an expert of his own choice. Thereupon Dairy Manager, Agricultural Institute, Naini was examined. He stated that it was possible for a sample of genuine milk to have high percentage of fat contents and at the same time to have a low percentage of non-fatty solid contents, that non-fatty solids could not be extracted from a sample of milk that in his opinion, the sample of milk in the case appeared to, have been taken from the top of the can without shaking or stirring it, with the re sult that fat contents of the sample was found to be more than non-fatty solids. Taking into consideration the statement of the Dairy Manager and other facts, the revision was allowed and the conviction of the ac cused-revisionist set aside. Sri P. N. Mehrotra has not cited any case which goes to contradict the opinion of the Dairy Manager. It is a matter of common experience that in winter season or if the milk is kept in a refrigerator, the upper layer is comparatively more thick than the lower layer. The lower layer looks bluish which indicates that the water portion is more. Sri P. N. Mehrotra conceded that in such a case the fat contents in the upper layer would be more than the prescribed standard. He, however, urged that there would be no difference in the percentage of non-fatty solids in the upper and lower layers. Prima facie this contention does rot seem to be correct. If the percentage of water is more the percentage of non-fatty solids would, in my opinion, be less than the prescribed minimum. This fact is evident from the statement of the Public Analyst recorded in the case of Sobha Ram (supra ). I would now refer to the case of Rajjan Lal v. State 1976 A C. C. 52, mainly relied upon by the Magistrate. In this case sample of cow's milk was taken. The Public Analyst found that it contained 3. 7% fat contents and 5. 6% non-fatty solids as against 3. 5% and 8. 5%. On a careful examination of the various cases cited, the Court deducted following principles: (1) If the deficiency is either in the fact contents or non-fatty solids the arti cle of food would be deemed to be adul terated. (2) If the aggregate of fat and non-fatty solid contents in the milk is more than the aggregate of the minimum pres cribed and the deficiency in one of the contents is marginal, the Courts may not punish the accused on the ground that the marginal deficiency may be due to the error in the analysis by the Public Ana lyst. (3) In case the deficiency is in one of the contents, namely, fat or non-fatty solids and the aggregate is also below the aggregate of the two as prescribed under the rules the article would be deemed to be adulterated. (4) If the deficiency in either of the two content, namely, fat and non-fatty solids contents is such when the deficiency cannot normally be assigned to the error in analysis by the Public Analyst, bene fit may not be available to the accused by holding that the milk was not adulterated. The Magistrate has relied on the second principle, because the total percentage of fat and non-fatty solids in the sample in ques tion conies to 12. 3% as against 12% pres cribed minimum. The case of Rajjan Lal (supra) was ob served in the case of Megh Singh and the first principle was followed and approved. In the case of Megh Singh there was no question of the applicability of the second principle because the fat contents were upto the prescribed minimum and there was defi ciency in non-fatty solids only. I would pass on to deal with the cases cited by Sri Tej Pal. He has first of all re ferred to the case of (Alld. ). This case was decided by a Division Bench. Sample of buffalo milk was taken. The Public Analyst found that it contained 11% fat contents and 1. 9% non-fatty solids as against 6% and 9%. The fat contents in the sample were abnormally high and non-fatty solids were abnormally low. It was held that reliance could not be placed on the analysis by the Public Analyst. Consequently the two revisions were allowed and the conviction of the revisionists set aside. He then referred to the decision in Ram v. State Crl. Appeal No. 2871 of 1977 Pat, decided by me on September 9, 1981. In this case the sample of Buffalo milk was found to contain 14% milk fat and 5. 1% non-fatty solids. The view taken by the Division Bench in the case of Puran Singh (supra) was followed and the convic tion of Pati Ram set aside. Sri P. N. Mehrotra said that the cases, of Puran Singh and Pati Ram both were cor rectly decided because the fat contents were abnormally high and non-fatty solids were abnormally low i. e. quite low. The ratio of the above two cases is not applicable to the facts of the present case because neither the fat contents are abnor mally high nor non-fatty solids abnormally low. Sri Tej Pal next referred to the case of Darshan Singh v. State 1981 A. C. C. 139. In this case sample of buffalo milk was taken. The Public Analyst found 6. 9% fat contents and 8. 4% non-fatty solids therein as against 6%. and 9%. Taking into consideration the case of Rajjan Lal (supra) and sub-section (2) (i-A) (m) added by U. P. Act No. 34 of 1976 the Court (Hon. Murli Dhar, J.) held that the benefit at doubt could be extended to the accused. Consequently, the conviction was set aside. Sub-section (2) (i-A) (m) was considered in the ease of Megh Singh (supra) and it was held that it was not applicable in the case of milk and that it was applicable in cases relating to primary food and that milk is not primary food. Term "adulterated" is defined in Section 2 of the Act. There are several clauses in, the definition. I would re-produce clauses (a) and (b) only. Thus the definition of th' word "adulterated" reads as follows: " (2) (i) "adulterated" an article of food shall be deemed to be adulterated- (a) if the article sold by a vendor is not of the nature, substance or quality demanded by the purchaser and is to his prejudice, or is not of the nature, subs tance or quality which it purports or is re presented to be; (b) if the article contains any other substance which affects, or if the article is no processed as to affect, injuriously the, mature, substance or quality thereof;" If is undisputed that the percentage of non-fatty solids in milk becomes, low on account of addition of water. It is also undis puted that water is not injurious to health. Therefore, clause (b) is not applicable in the case of milk. The Case of milk is covered by clause (a ). The Prevention of Food Adulteration (Amendment) Act, 34 of 1976 which came into force with effect from January 17, 1976, made several amendments in the Act. Clause (m) added by this Act reads as fol lows:- " (m) if the quality or purity of the article falls below the prescribed standard or its constituents are present in quanti ties not within the prescribed limits of variability but which does not render it injurious to health: Provided that, where the quality of, purity of the article, being primary food, has fallen below the prescribed standards or its constituents are present in quanti ties not within the prescribed limits of variability, in either case, solely due to natural causes and beyond the contra" of human agency, then, such article shall not be deemed to be adulterated within the meaning of this sub-clause. " Then follows Explanation which relates to the mixture of two or more articles of primary food Term "primary Food" has been defined in (xiia) as any article of food, being a produce of agriculture or horticulture in its natural form. It is obvious from the above that milk is not a primary food. Therefore, proviso to clause (m) is not applicable to the cases of milk. It is further obvious that clause (m) can relate to clause (b) and not to clause (a ). In this way it is evident that a milk vendor (accused) cannot fall upon the provision con tained in clause (m) added by the Amend ment Act 34 of 1976. No other case was cited by the parties' counsel. From a perusal of the cases cited by the parties' counsel two facts can easily be inferred- (1) There is a possibility for a sample of genuine milk to have a high percentage of fat contents and at the same time to have a low percentage of non-fatty solid contents. In case the fat contents are more and the non-fatty solids are little less then it can appear that the sample was taken from the top of the can without shaking or stirring it (vide the opinion of Dairy Manager, Agricul tural Institute, Naini given in the case of Soblia Ram (supra ). (2) If the aggregate of the fat and non-fatty solid contents is more than the aggre gate of the minimum prescribed and the de ficiency in one of the contents is marginal the Courts may not punish the accused on the ground that the marginal deficiency may be due to the error in the analysis by the Pub lic Analyst. I sail now refer to the evidence in the case before me. Sahib Singh respondent is resident of village Chauhara. police station Malpura, district Agra. On the date in question he was found selling milk in mobaila Khataina within the limits of Agra Nagar Mahapalika. Vijendra Narain Kulsharesbtha, Food Inspector stated that he was selling miik and that the milk was in a can. V. N. Kulshareshtha and Lakhan Singh Hawaldar, who was with V. N. Kulshreshtha could not tell the name or names of the persons to whom the appellant was selling milk. It is, however, patent that the milk was in a can. The sample was taken in the middle of Oc tober, the beginning of the winter season. There is no evidence worth the name that before taking sample, the milk of the can was fully shaken or stirred. In this circum stance the possibility of the sample having been taken from the top portion of the milk in the can cannot be ruled out. Therefore, in view of the opinion of the Dairy Mana ger. Naini the sample could have more per centage of fat contents and less percentage of non-fatty solid. Taking into consideration the facts of the present case, the opinion of the Dairy Manager and the second principle laid down in the case of Rajjan Lal, I am of the opi nion that the Magistrate was not wholly in the wrong in not convicting Sahib Singh. In this aspect of the matter this Court would not be justified in setting aside the order of acquittal and convicting the res pondent. Sri P. N. Mehrotra, counsel for the ap pellant stated that he was not keen to ob tain the conviction of the respondent and that he simply desired that a Correct princi ple of law be laid down. In my opinion precaution, has to be taken by the Food Inspector at the time of taking sample and precaution has also to be taken in the matter of adding preservative just after taking the sample and precaution has also to be taken by the Public Analyst at the time of the analysis of milk or any other article of food. I am alive to the statutory provision that the report of the Public Ana lyst has to be accepted unless there is opi nion of the Director of the Central Food Laboratory to the contrary. Even if there is no second opinion of the Director of the Central Food Laboratory, I am of the view that the Public Analyst has to exercise care in making the analysis of the sample in qu estion. He must see that the articles which he uses in making the analysis should be of good quality. Similarly, the Food Inspector while taking sample of milk or any other liquid should fully shake and stir the entire quantity and then add requisite preserva tive. He should state so in court. He must ensure that the preservative is of good qua lity and is not in any way inferior. In case, the Food Inspector takes all the care ex pected of him in taking the sample and in adding the requisite preservative and states so in the trial court and the public analyst also takes It the care in making analysis, the courts will have no discretion but to follow the dictum (i. e. observations) made by the Kerala Full Bench in the case of State of Kerala v. Parmeswaran P. V. Nair (supra ). For all what has been discussed above, I am of the opinion that it is not a fit case in which this Court should interfere with the order of acquittal. Consequently, the appeal is dismissed. .