Balu vs State of Rajasthan

N.C. Sharma, J.—On June 14, 1976 about 6.30 a.m. the Food Inspector of Gulabpura Town visited the small restaurent of Bansi Luhar PW 2 for whom the petitioner Balu had brought 7 or 8 Kgs. of mixed cow and buffalo''s milk for sale. The Food Inspector inspected the milk brought, by the petitioner and the petitioner told the Food Inspector that it was mixed cow and buffalo''s milk and he had brought it for sale. Suspecting that the milk was adulterated, the Food Inspector, with a view to take sample of the milk from the petitioner to send the same for analysis to the Public Analyst, gave notice Ex. P 1 in Form VI to the petitioner and bought 660 mlg. of that milk from the petitioner for 90 paise. The statutory formalities under the Prevention of Food Adulteration Act, 1954 (for short, here in after "the P.F.A. Act") were complied with and one of the three sealed bottles were sent to the Public Analyst, Bhilwara from whom the report was received that the sample of mixed milk (buffalo and cow) was adulterated as it contained about 33% added water. Consequently, a prosecution ensued and after trial, the Judicial Magistrate, Gulabpura found the petitioner guilty for the offence u/s 7 read with Section 16 of the P.F.A. Act and resulted with simple imprisonment for a term of six months and with a fine of Rs. 1000/- and in default of the payment thereof simple imprisonment for a further term of six months. Petitioner appealed to the Court of Sessions, Bhilwara but his appeal was dismissed by the Additional Sessions Judge, Bhilwara on November 21, 1979. He has invoked the revisional jurisdiction of this Court.

Wide-ranging grounds have been taken by the petitioner in his revision for attacking the conviction recorded by the Court below, but during the course of arguments Mr. M.M. Singhvi, learned counsel for the petitioner, only canvassed limited points for my consideration. He urged that the report Ex. P 5 of the Public Analyst, Bhilwara was per se erroneous and wrong because when the fat-content, on analysis, has come out to be in the sample sent to him by the Food Inspector as 8.4% and exceeds the prescribed standard, it could not be found by him that the sample contained about 30% added water and that the milk was adulterated. It was also urged that it was the month pf June when the sample was taken, by the Food Inspector and apart from the health of the cattle, seasonal variation also affect both the quantity and quality of the milk produced by cow or buffalo and consequently affect not-fatty solids content percentage in the milk. Last was the usual prayer for clemency. Mr. Singhvi relied upon a Single Bench decision of this Court in Paras Ram v. State of Rajasthan 1978(3) R.C.C. 324 and a Bench decision of the Allahabad High Court in Puran Singh v. State of Uttar Pradesh, and Ors. 1978 F.A.J. 168 in support of his contentions. He also referred to the percentage of chief constituents generally found in an average sample of milk as mentioned by Eckles, Combs and Macy in their book "Milk Products" prepared for the use of Agriculture College students (February, 1951-Fourth Edition) at page 23 of the book. He also referred to page 62 of the said book to support his argument about seasonal variations in solids-non-fat in milk.

It pains and punctures one''s legal conscience to note that Mr. M.M. Singhvi urges to exculpate the petitioner or to extenuate the offence found to have been committed by the petitioner by courts below by quoting before this Court a Single Bench decision in Paras Ram v. State of Rajasthan 1978 (3) R.CC. 324 which already stands over-ruled by a Bench decision of this Court in State v. Ganpat 1980 RLW 164 where in para 8 of the reported judgment at page 167, it is clearly pronounced that "in view of the authoritatative pronounces made by their Lordships of the Supreme Court in Municipal Committee, Amritsar v. Hazara Singh AIR 1975 SC 108 the decision of the Single Bench of this Court in Parasram v. State of Rajasthan (supra) cannot be said to be a good law." His Lordship V.R. Krishna Iyer, J., (as he then was) speaking for the Supreme Court in Hazara Singh''s case approved the appreciation of law of food adulteration made by the Kerala High Court in State of Kerala Vs. Parameswaran Pillai Vasudevan Nair, as also the right approach to decisions of Supreme Court had been set out correctly by the said High Court when it said:

The standard under 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 far and consistent decisions are great.

Even according to Eckles, Combs and Macy''s book "Milk and Milk Products the milk solids-not-fat" in an average sample approximately be 8.95%. The standards of quality prescribed in A. 11-01-11 of Appendix B appended to the Prevention of Food Adulteration Act in relation to milk solids-non-fat is 8,5%. In the instant case, solids-non-fat in the sample sent to the Public Analyst have been reported in Ex. P 5 to be only 5.7%. The sample of mixed milk (buffalo and cow), therefore, clearly contained 32.94%, or say, about 33% added water. In Ramchand Vs. The State, it was held that where the cow''s milk taken from a vendor by the Food Inspector contained less milk solids-non-fat than the minimum prescribed in Appendix B (A. 11.01.11) to the PFA Act, the milk could be said to be adulterated even though the fat contents were more than the prescribed standard. In Ganpat''s case RLW 1980 164 (DB), the milk solids, other than fat were deficient by 1.3% only and the sample of milk was held to be adulterated. Presence of extraneous water, starch, fat deficiency or deficiency in solids-non-fat makes the milk adulterated. In State of Rajasthan Vs. Chhattar Singh, even though it was not known as to what was the proportion in which the cow milk and buffalo milk were mixed, it was held that the milk in question may be judged by them standard prescribed for the buffalo milk and mixture of cow buffalo milk, and if the milk in question contained non fat as against the prescribed standard, there was no escape from the conclusion that the milk in question was not of the standard prescribed even for cow milk and was consequently adulterated. In Nanhey Vs. State of U.P., the Allahabad High Court held that the mere fact that there was deficiency only in non-fat solid contents in the sample of cow''s milk cannot lead to the conclusion that the milk was not adulerated or that the report of the Public Analyst to the contrary was erroneous standard for both fat and non-fat solid contents It was aware that there could be sample of milk in Which fat-content may be according to the prescribed standard but which may still be deficient in non-fat solid contents. This prosecution cannot be expected to prove that the fall in standard was solely due to natural causes and beyond the control of human agency. It was for the accused who had been dealing with the article in question to prove that the fall in standards of the article were due to the natural causes and beyond the control of human agency (See M. Rajan Vs. Food Inspector, Palghat Municipality and Another, Kerala. I am of the view that the learned Addl. Sessions Judge Bhilwara was very correct in ignoring the overruled decision of Paras Ram v. The State of Rajasthan (supra) and was perfectly right in the following the decisions in The State Vs. Badri, Tej Ram and Others Vs. State of Rajasthan and Others, Khaju v. The State 1971 RLW 409, Radhey Shyam Agarwal v. State of Rajasthan and Anr. 1977 F.A.J. 321 and Surja Ram v. State of Rajasthan 1977 F.A.J. 323. I have already observed above that Paras Ram''s case stands over-ruled by this Court by its Bench decision in State v. Ganpat (1980 RCW 164 ) and that the judgment in Paras Ram''s case cannot stand in the light of the approach of the Full Bench of the Kerala High Court in Vasudevan Nair''s case (supra) approved by their Lordships of the Supreme Court in Municipal Committee, Amritsar Vs. Hazara Singh,

So far as the decision of Allahabad High Court in Puran Singh v. State of Uttar Pradesh and Ors. (1978 F.A.J. 168 ) is concerned, suffice it to state that their Lordships of the Supreme Court in Jagdish Prasad alias Jagdish Prasad Gupta Vs. State of West Bengal, have clearly said that if the report of the Public Analyst was not satisfactory, it was open to the petitioner to have made an application for his sample to be examined by the Director of the Central Food Laboratory u/s 13 of the PFA Act and in the absence of any such application, the report of the Public Analyst is final. The same view was taken by the Supreme Court in Municipal Corporation of Delhi Vs. Ghisa Ram, The Public Analyst has clearly stated in his report that the sample of the mixed milk sent to him contained about 33% added water. In Kisan Trimback Kothule and Ors. v. State of Maharashtra 1976 Cri. LJ 541, their Lordships of the Supreme Court did not agree with the submissions made by the counsel for the appellant in that case that addition of water to milk did not amount to adulteration.

As already observed, the learned counsel for the petitioner did not press any other point in this revision except his last submission for clemency. This submission has been answered by his Lordship G.M. Lodha, J. in Administrator Municipal Board v. Gangapur City v. Om Prakash 1982 RLW 187 (Para 25) and by his Lordship G.K. Sharma, J. in Bhonri Lal v. State of Rajasthan (RLW 1985 192). To conclude, I would quote V.R. Krishna Iyer from Kisan Trimback Kothule''s case (1976 Cri. L.J 54 ) where in his Lordship quoted his argument in Murlidhar Meghraj Loya and Another Vs. State of Maharashtra and Others, as follows:

It is trite that the social mission of food laws should inform the interpretative process so that the legal blow may fall on every adulterator. Any narrow and pedantic, literal and lexical construction likely to leave loop holes for this dangerous criminal tribe to sneak out of the meshes of the law should be discouraged. For the new criminal jurisprudence must depart from the old canons, which make indulgent presumptions and favoured constructions benefitting accused persons and defeating criminal statutes caluclated to protect the public health and the nation''s wealth.

After all, how long we would allow this generation and our posterity to eat or drink adulterated articles of foor or drink. Apart from that, it may be stated that Section 16 of the PFA Act was drastically amended by the Central Act No. 34 of I 976 and the amendments made thereby commenced from April 1, 1976. The offence in the instant case was committed by the petitioner on June 14, 1976. The discretion now left in such cases for the Court is that it may, for any adequate and special reasons to be mentioned in the judgment impose of imprisonment for a term which shall not be less than three months and with fine which shall not be less than five hundred rupees. I do not find any adequate and special reason to reduce the minimum sentence awarded to the petitioner by the Judicial Magistrate, Gulabpura and confirmed in appeal by the Additional Sessions Judge, Bhilwara under proviso (i) to Section 16 of the P.F.A. Act.

The revision petition has no force in it and it is hereby dismissed. The petitioner is on bail. The Judicial Magistrate, Gulabpura is directed to get the petitioner Balu arrested and commit him to jail to undergo the sentence of imprisonment that has been awarded to him by the said Magistrate by his judgment dated February 13, 1979.

Order pronounced in open Court.