State of Haryana vs Bahadur Chand

S.S. Dewan, J.—This is an appeal bv the State of Haryana from the acquittal of the accused-respondent by the Chief Judicial Magistrate, Jind, for the offence punishable under the Prevention of Food Adulteration Act (for short, the Act).

On Feb. 22, 1980, the respondent sold to Ram Singh, Government Food Inspector. Jind PW. 1, 660 mis. of cow''s milk. After complying with the formalities prescribed by law and adding the necessary preservative, the sample was sent to the Public Analyst for examination. The Public Analyst vide his report Ex. PD found the sample to be adulterated as milk fats were 5.7% against 4% while the milk solids not � fat were 8% against 8.5% and thus the milk solids not-fat were 6% deficient of the minimum prescribed standard. The Food Inspector besides himself coming into the witness box as P.W. 1 examined Dr. R. S. Garg P. W. 2 and also proved the necessary documentary evidence with regard to the purchase of sample from the respondent. In his statement u/s 313, Cr. P.C., the respondent denied the prosecution allegations and pleaded false complicity in the case but led no evidence in defence. Whilst accepting the prosecution case and the report Ex. PD as regards the analysis of the milk, the learned Chief Judicial Magistrate, Jind, however, relying on the decisions in Ujagar Singh v. State of Punjab (1980) 1 FAC 432; Hans Raj v. State of Punjab (1980) 2 FAC 396; Municipal Corporation of Delhi v. Birinder Nath Chatterjee 1974 FAC 223 (Del); Sultan Shah v. State of U.P. 1974 FAC 424 : 1973 Cri LJ 1413 (All); Ram Autar v. State (1980) 2 FAC 249 (All); Madan Lal v. State (1980) 2 FAC 300 : 1981 Cri LJ 514 (Del); Darshan Singh v. State (1981) 1 FAC 98 : 1981 All LJ 521 and Municipal Corporation of Delhi v. S. Ramanathan, (1981) 1 FAC 147 along with the observations made by their Lordships of the Supreme Court in Malwa Co-operative Milk Union Ltd. v. Bihari Lal (Criminal Appeals Nos. 235 and 236 of 1964 decided on Aug. 14, 1967) reported in 1973 FAC 375 acquitted the respondent for the following reasons:

Now coming to the report Ex. PD, it reveals that according to it the milk fats in the impugned sample were" 5.7%, against 4%, while the milk solids not-fat were 8% against 8.5% and on that account the Public Analyst found that the sample was adulterated, as milk solids not-fat were 6% deficient of the minimum prescribed standards. Thus it shows that milk fat in the same was 5.7% against 4% the minimum prescribed standard and only milk solids not-fat were deficient of the minimum prescribed standard and it is the settled law that in such like cases of marginal variation, the accused is entitled to acquittal, as the percentage of milk fat and non-fatty milk solids depend on the proper feeding and the health of the animal. There is problem of non-availability of nourishing and sufficient quantity of food for the cattle, both green and otherwise and the quantity of food given to an animal affects to certain extent, the quantity and quality of milk produced by it. Moreover, apparently it is not possible to take out non-fatty solids from milk, without reducing or affecting the fat contents and for the same in such like cases it cannot be said that the accused intentionally effected any adulteration in the milk or the other inference which can be drawn is that the report of the Public Analyst was erroneous.

It is manifest from the above that the aforesaid acquittal is based on the ground that the sample conformed to the prescribed standard of the fat contents, but it was found to be deficient in non-fatty solid contents. This view of the trial Court no doubt finds! support from the two single Bench decisions of this Court in Ujagar Singh''s case (supra) (1980) 1 FAC 432 and Hans Raj''s case (supra) (1980) 2 FAC 396 but this reasoning was squarely deprecated in a Full Bench decision of this Court in The State of Punjab Vs. Teja Singh, . Therein the specific legal issues which fall for consideration were formulated in the following terms:

Whether it is permissible to add the percentages of the various constituents of milk disclosed by the Public Analyst and thereafter to deduce a conclusion therefrom about the overall deficiency or otherwise of the milk from its prescribed standards?

Whether the Court is entitled to assume a slight or reasonable margin of error in the conclusion recorded by the Public Analyst'' during the course of analysis of the milk?

Whether a negligible or. marginal deviation from the prescribed standard laid down by the Act can be ignored and acquittal recorded on that basis?

After an exhaustive discussion of all , the aforesaid three questions, an answer in , the negative was returned authoritatively.

It is thus plain that no resort could be had to the process of any addition or subtraction of the percentages of deviation from the prescribed standard for arriving at a conclusion that the article was not adulterated or that marginal deviation from the prescribed standard could be ignored. A perusal of the trial Court''s judgment would show that the counsel were solely remiss in not bringing to the notice of the Court the authoritative enunciation in The State of Punjab Vs. Teja Singh, . Be that as it may, the view taken in Ujagar Singh''s case 1980 1 FAC 432 (supra) and Hans Raj''s case 1980 2 FAC 396 (supra) has already been overruled by the two Division Bench judgments of this Court in Gopal Dutt Vs. State of Haryana, and State of Punjab Vs. Ramesh Kumar, .

It would appear from the impugned judgment that the trial Court following the decisions of this Court and the other High Courts with a binding percedent in Malwa Co-operative Milk Union''s case (supra) reported in 1973 FAC 375 (SC) held that where the difference was only marginal, benefit of doubt could be given to the accused. The facts in Malwa Co-operative Milk Union''s case (supra) were peculiar. Two samples of buffalo milk purchased from a Co-operative Milk Union were found on examination by Analyst to contain less than. the required minimum solids, in one sample by 1% and in the other by 0.4%. As the Milk Union was likely to become one of the major milk distributors in the City of Indore, the Corporation of the City of Indore considered that it was not in the public interest to continue the prosecution against the Milk Union especially when none of the accused had personally benefited by the sale and the Public Prosecutor applied for permission to withdraw the two cases. The trial Magistrate allowed it and acquitted the accused. Applications filed before the Sessions Judge for revision of the Magistrate''s orders were dismissed. Thereafter a single Judge of the High Court in revision set aside the acquittal and ordered retrial. In the appeals therefrom, the Supreme Court set aside the High Court''s orders and restored the orders of the Magistrate while observing that the variation was on the border line; that it was not clear whether the Analyst was able to isolate fat contents so successfully as not to have left room for the slight variation which was found in his reports and that it was possible that a slight error in calculation or in isolation of fat may have been made by him.

This proposition now stands eroded in the recent pronouncement of their Lordships in Municipal Committee, Amritsar Vs. Hazara Singh, . In Hazara Singh''s case (supra) a larger Bench of three Judges, has in express terms pronounced on what was the proper ratio-decidendi of the Malwa Cooperative Milk Union''s case (1973 FAC 375) (SC). Krishna Iyer J. speaking for the Bench ; therein categorically held that the observations in Malwa Co-operative Milk Union''s case on the point that minor error in the chemical analysis can be presumed, were mere obiter dicta. After analysing the true import of that judgment it was held as follows:

Indeed, this Court''s decision cited above discloses that Hidayatullah, J. (as he then was) was not laying down the law that minimal deficiencies in the milk components justified acquittal in food adulteration cases.

It was then observed that the real ratio of the Malwa Co-operative Milk Union''s case 1973 FAC 375 (SC) was only this that the revisional power of the High Court was reserved for setting right a grave miscarriage of justice and not for being invoked by private prosecutors. As regards the other observations in the Malwa Co-operative Milk Union''s case, it was held that:

Such was the ratio, but in, the course of the judgment, Hidayatullah, J. to drive home the point that the case itself was so marginal, -referred to the microscopic difference from the set standard. To distort that passage, tear it out of context and devise a new defence out of it in respect of food adulteration cases, is to be grossly unjust to the judgment.

Now, it is well settled law that when art earlier judgment of the Supreme Court is analysed and considered by a later dench of that Court, then the view taken by the later as to the true ratio of the earlier case, is authoritative and binding on the High Courts. Therefore, nothing more can now be read into the Malwa Co-operative Milk Union''s case than what has been authoritatively laid down by the recent, decision in Municipal Committee, Amritsar v. Hazara Singh''s case 1975 Cri LJ 928 (supra). In Hazara Singh''s case their Lordships have further in unreserved terms approved the Full Bench judgment of the Kerala High Court reported as State of Kerala Vs. Parameswaran Pillai Vasudevan Nair, . The view expressed in this case is, therefore, binding and therein it has been held in unequivocal terms 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 Act does not provide for exemption of marginal or borderline variations of the standard from the operation of the Act. In such circumstances, to condone such variations on the ground that they are negligible is virtually to alter the standard itself fixed under the Act.

Similar view was taken by the Supreme Court in Jagdish Prasad alias Jagdish Prasad Gupta Vs. State of West Bengal, , wherein it was held that such standards bad been fixed with great care as per statutory provisions, any person who dealt in articles of food not conforming to the standards was liable to be punished. It was contended there on the strength of certain decisions of the Calcutta and Madras High Courts that standards prescribed in Appendix I to the Rules framed under the Act were not conclusive. The Supreme Court observed that the decisions of the'' Courts could not alter or vary the standards fixed in exercise of the powers conferred by the Act ki Appendix I to the Rules.

Thus the observations in Hazara Singh''s case 1975 Cri LJ 928 being binding, it is unnecessary to examine in detail the reasoning and rationale of the single Bench decisions of this Court as well as the division Bench judgments of other High Courts to which reference has been made in the impugned judgment. It is adequate to say that the ratios deducible therefrom are no longer good laws in view of the decision in Municipal Committee, Amritsar Vs. Hazara Singh, . With the help of the learned Counsel for the parties, we have also gone through the oral and documentary evidence on the record and find that the guilt is fully made out against the accused respondent.

In the result, the acquittal of the respondent is set aside and respondent is convicted u/s 16(1)(a)(i) of the Act and sentenced to undergo rigorous imprisonment for six months and to pay a fine of Rs. 1,000/-or in default of payment of fine to undergo imprisonment for a further period of two months.

K.S. Tiwana, J.

I agree.