The State of Punjab vs Teja Singh

S.S. Sandhawalia, J.—A reference to a larger Bench becomes inevitable in the present case because of the fact that the ratio of as many as three Division Bench judgments of this Court has been put in doubt in view of the observations made in Municipal Committee, Amritsar v. Hazara Singh AIR 1975 SC 1057.

For the limited purpose of this reference it is not necessary to advert to the facts in any great detail. Suffice it to mention that the Respondent was acquitted on a charge u/s 16(1)(a)(i) of the Prevention of Food Adulteration Act Primarily on the twin ground that the possibility of some marginal error in the course of the anal) sis of the sample of milk could not be ruled out and further that the overall deficiency of milk fat and milk solids not fat, was of a negligible nature and, therefore, could be ignored. The State of Punjab in this appeal directed against the acquittal seriously assails the above-said two precautions.

Though the learned trial Judge did not in terms refer to the relevant judgments, it is apparent that the view he was inclined to take, flowed p(sic) from the observations made by their Lordships of the Supreme Court in Malwa Co-operative Milk Union Ltd. v. Biharilal and another etc. Cr. A Nos. 235 and 236 of 1964. (Criminal Appeals Nos. 235 and 26 of 1964 decided on August 14 1967) In that case Hidayatulah J., as his Lordships then was, speaking for himself and Vaidialingam J., made certain passing observation which would undoubtedly lend support to the view that it was permissible for a Court of law to make a dictions of the percentages of milk fat and milk solids not fat, discovered by the Public Analyst from the sample and to conclude there from whether the overall adulteration of the milk and the variation from the prescribed standards was substantial or negligible. It was after resorting to this process that Hiayatullah J., observed in that particular case that the deviation from the prescribed standard laid down in the Prevention of Food Adulteration Act was marginal and border-line and could, therefore, be ignored. It was further observed that a slight error in calculation or in the isolation of fat might have been made by the public Analyst in the course of analysis. On the above-said premises along with others it was held that the learned Single Judge of the High Court was not justified in reversing the acquittal of the Appellant and the appeal by him was allowed.

The judgment in the Malwa Co-operative Milk Union''s case was rendered on the 14th of August, 1967. It was followed by the various High Courts of India but it is not necessary here to make a reference to all those authorities. In this Court Sarkaria J. speaking for the Division Bench in Municipal Committee, Amritsar v. Karam Singh (1971)73 PLP 846, relied on the Malwa Co-operative Milk Union''s case to hold that the milk fat in excess of the prescribed percentage could off-set the deficiency in milk solids not fat. Consequently he overall deficiency could be worked out by this process and if it turned out to be negligible then it could be ignored on the principle that he law does not take account of trifles. Fortified by the relevant observations made in Kiram Singh''s case (supra another Division Bench of this Court reported in The Municipal Committee Amritsar v. Behari Lal (1974)1 Cri. LT 154, followed the same and after determining the overall deficiencies in the milk by the process of the addition of various constituents it declined to set aside the acquittal on the ground that the ultimate deficiency disclosed was of a marginal nature. The above-said two authorities of this Court along with the binding precedent in Malwa Co-operative Milk Union''s case have then been relied upon by my learned brother Pattar J, speaking for the Division Bench in The Municipal Committee Amritsar v. Shri Jaswant Singh (1975)77 PLR 380. It was held therein that the percentages of the milk fat and milk solids not fat can be added up in order to determine the overall deficiency thereof and to further conclude therefrom whether the milk was adulterated or not. The argument that any such addition was not permissible was in terms rejected. It was also observed that a marginal deviation from the prescribed standard could well be ignored and condoned.

In this reference I do not propose to advert to the numerous Single Bench Judgments of this Court, both reported and otherwise, which have necessarily followed the three Division Bench authorities of this Court following as they do, from the observations in Malwa Co-Operative Milk Union''s case Cr. A Nos. 235 and 236 of 1964. It is manifest that within this jurisdiction authoritative precedent has held that the Supreme Court case above-said was adequate warrant for a three-fold proposition. Firstly, that it was permissible to add the percentages of the various constituents of milk disclosed by the analysis and to arrive by that process at a conclusion about the overall deficiency found in the milk, Secondly, that what may be termed as a negligible or marginal deviation from the prescribed standard in the Prevention of Food Admit ration Act may be ignored. Thirdly, that the Court could also assume some slight margin of error in the calculation of the Public Analyst, during the course of the analysis of milk.

It appears to me that the very corner stone of the foundation on which the above said propositions rested is now virtually eroded. A large Bench of three Judges has in express terms now pronounced on what was or in any case what is to be deemed as true ratio of Malwa Co-operative Milk Unions case. Krishna Iyer, J. speaking for the Bench in Municipal Committee, Amritsar v. Hazara Singh AIR 1975 SC 1057, has held that the observations in the Malwa Co operative Milk Union''s case, on the point that a minor error in the chemical analysis could have occurred were merely obiter dicta. Further if has been held as follows whilst interpreting the true import of the judgment in that case:

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." He also observed that real ratio of the case was only this that the revisional power of the High Court was reserved for setting right miscarriage of justice and not for being invoked by private persecutors. Regarding the other observations in the judgment it was said:

Such was the ratio but, in the ensures of the judgment, Hidawatullah 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 defense out of it in respect of food adulteration cases, is to be grossly unjust to the judgment.

Apart from explaining and qualifying the ratio in the Malwa Co-operative Milk Union''s case, their Lorships of the Supreme Court have in unreserved terms placed their seal of approval on a Full Bench judgment of the Kerala High Court reported as State of Kerala v. Parameswaran Pillai Vasudevn Nair 1976(1) Cri. LJ 97.

Therein it stands observed as follows:

Food pollution, even if it be only to the slightest extent, if continued in practice, would adversely affect the health of every man, woman and child in the country. Hence even marginal or border line variations of the prescribed standards under the Act are natters of serious concern for all and as public interests are involved in them, the maxim, De Minimis Non Curat Lex, Law does not apply to them.

On the point of their being any presumed possibility of error in the course of analysis, the Full Bench had this to say:

But where there is only one report or one certificate there is no warrant for the assumption about inaccuracy in any detail mentioned in it or regarding error in calculation or isolation at the stage of analysis. There is nothing in the decision in Criminal Appeals Nos. 235 and 236 of 1964 (Malwa Co-operative Milk Union''s case) to show that it was a different view that was taken by the Supreme Court there." Lastly it was 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 any consistent decisions, are great.

I am of the view that in the light of recent judgment in Hazara Singh''s case, the Division Bench authorities of this Court referred to above will have to be reconsidered. Even though the observations of their Lordships of the Supreme Court are further right yet I consider it proper that the matter should be placed before a Full Bench because a view contrary to a number of authoritative precedents of this Court may have to be ultimately adopted. Let the papers be placed before my Lord the Chief Justice for appropriate orders.

In this appeal preferred by the State of Punjab against the acquittal of the Respondent on a charge u/s 16 of the Prevention of Food Adulteration Act, three salient legal issues arise, which can be conveniently 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 conclusions 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 ?

For the determination of the afore-mentioned legal issues, it is not at all necessary to advert to the facts of the present case at the outset. It suffices to mention that the learned trial Court whilst recording the acquittal proceeded on the assumption that the possibility of some marginal error in the course of chemical analysis of the milk sample could not be ruled out. Further by referring to the percentages of fat and milk solids not fat discovered by the analyst a conclusion has been arrived at that the deviation was of a marginal nature and, therefore, fit to be ignored.

The Appellant state herein seriously assails the above said two propositions. It is not disputed that the controversy here flows from certain observations made by their Lordships of the Supreme Court in Malwa Co-operative Milk Union Ltd. Indore and Ors. v. Bihari Lal 1973 FAC 375. Therein, Hidayatullah J. (as his Lordship then was), speaking for himself and Vaidialingam J. made certain passing observations, which appeared to lend support to the view that it was permissible for a Court of law to make additions of the percentages of milk fat and milk solids not fat discovered in the chemical analysis of the sample and then to conclude there from whether the overall adulteration and the variation from the prescribed standards was either substantial or negligible.

After referring to the relevant chemical analysis it was held:

It would, therefore, appear that the solids in the milk should be of the order of 14% minimum. In the samples they were almost 14 per cent in the one case being only 1 percent less and in the other 4 per cent less. The fat content appears to be proportionately less. It is not clear whether the analyst was able to isolate the fat content so successfully as not to have let from for this slight variation. The variation was thus borderline what is generally extracted is cream and no the other solids.

It was also opined that perfection cannot be attributed to the work of the analyst and it was possible that a slight error in the calculation or in the isolation of fat may be made and the ultimate conclusion arrived at was that the variations found in the contents of the milk were not so great as to merit conviction.

On the afore-mentioned premises along with others, the Supreme Court reversed the judgment of the learned Single Judge ordering retrial on the revisional side and upheld the acquittal recorded by the trial Court.

The judgment in the Malwa Co operative Milk Union''s case was rendered on 14th August, 1967. Inevitably it was followed by various High Courts in India. But it is neither possible nor necessary to make a reference to all these decisions. Confining myself to this Court, it may be recollected that Sarkaria J., speaking for the Division Bench in Municipal Committee, Amritsar v. Karam Singh (1971)73 PLP 846, relied on the above mentioned Supreme Court judgment to hold that the milk fat in excess of the prescribed percentage can set off the deficiency discovered in the milk solids not fats. He held that consequently the overall deficiency from the prescribed standards can be worked out by this process and if the result turned out to be negligible then it can be ignored under principle that law does not take account of trifles. Fortified by the decision in Karam Singh''s case supra, another Division Bench of this Court, reported in Municipal Committee, Amritsar v. Behari Lal (1974)1 Cri. LT 154, proceeded to determine the overall deficiency in the milk by a process of addition of its various constituents discovered in the course of chemical analysis and thereafter declined to set aside the acquittal on the ground that the ultimate deficiency disclosed was of a marginal nature. The above said two authorities of this Court alongwith the binding precedent in the Malwa Co-operative Milk Union''s case were then relied upon by a Division Bench in Municipal Committee, Amritsar v. Shri Jaswant Singh 1976(1) Cri. LJ 97. It was held therein that the percentage of the milk fat milk solids not fat can be added up together in order to determine the overall deficiency in the milk and thereafter to conclude whether the same was adulterated or not. The argument that no such addition was permissible was rejected in terms and it was further observed that a marginal deviation from the prescribed standards can well be ignored or condoned. I do not propose to burden this judgment by references to numerous Single Bench authorities of this Court both reported and otherwise, which have necessarily followed the three Division Bench authorities of this Court, flowing as they do from the observations in the Malwa Co-operative Milk Unions case.

However, it appears to me that the recent pronouncement of their Lordships in Municipal Committee. Amritsar v. Hazara Singh, AIR 1975 SC 1057

has eroded the very corner stone of the foundation upon which the propositions, noticed in the afore-mentioned judgments, had rested. In Hazara Singh''s case (supra) a larger Bench of three Judges, has in express terms now pronounced on what was, or in any case, what is to be the proper ratio-decided of the Malwa Co-operative Milk Union''s case, Krishna Iyer J. speaking for the Bench therein has 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 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 said 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 miorscopic 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 that judgment.

Now it is trite learning to say that when an earlier judgment of the Supreme Court is analysed and considered by a latter Bench of that Court then the view taken by the latter as to the true ratio of the earlier case is authoritative. In any case latter view is binding on the High Courts. Therefore, nothing more can now be read into the Malwa Cooperative Milk Union''s case than what has been authoritatively laid down by the recent decision in Municipal Committee, Amritsar v. Hazara Singh''s case (supra). That, however, is not all. In Hazara Singh''s case their Lordships have further in unreserved terms placed their seal of approval on the Full Bench judgment of the Kerala High Court reported as State of Kerala v. Paramaswar Pillai Vasudevan Nair 1976(1) Cri. LJ 97. The view expressed in this case, therefore, becomes virtually binding. It is hence apt to quote briefly from the leading judgment in the said case regarding the legal issues which fall for determination in the present one. Relevant to the issue whether it is permissible to add the percentages of the different contituents of milk for determining its overall deficiency from the prescribed standard, the Bench has obseved 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 border line 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.

On the point of there being any presumed possibility of error in the Court of chemical analysis the Full Bench had this to say:

But where there is only one report or one certificate there is no warrant for the assumption about inaccuracy in any detail mentioned in it or regarding error in calculation or isolation at the stage of analysis. There is nothing in the decision in Criminal Appeals Nos. 235 and 236 of 1964 SC. (Malwa Co-operative Union''s case to show that it was a different view that was taken by the Supreme Court therein.

And lastly on the question whether marginal diviations from the prescribed standards can be ignored it was held as follows in unequivocal terras:

Food pollution, even if it be only to the slightest extent, if continued in practice would adversly affect the health of every man, woman and child in the country. Hence even marginal or borderline variations of the prescribed standards under the Act are matters of serious concern for all and as public interest are involved in them, the maxim De Minimis Non Burate LEx. Law does not concern itself about trifles, does not apply to them.

As I have already mentioned, the observations Hazara Singh''s case are unequivocal and binding and the endorsement of the view of the Kerala Full Bench by the supreme Court has rendered the said judgment equally authoritative. It is consequently unnecessary to examine the issue any further on principle or first impression. From the afore mentioned quotations it is obvious that the answers to all the three questions posed in the opening part of the judgment must be returned in the negative.

In view of the above conclusions it is unnecessary to examine in detail the reasoning and attainable of the Division Bench judgments of this Court to which reference has already been made. It is adequate to say that the ratios deducible therefrom are no longer good law in view of the subsequent decision in Municipal Committee, Amritsar Vs. Hazara Singh, I would, therefore, overrule the authorities in Municipal Committee, Amritsar v. Karam Singh (1971)73 PLP 846; Municipal Committee, Amritsar v. Bihari Lal (1974)1 Cri LT 154 and Municipal Committee, Amritsar v. Jaswant Singh (1975)77 PLR 380. For clearity''s sake it may be pointed out that the numerous Single Bench judgments which had followed the abovesaid authorities would also no longer hold the filed.

Though the Appellant State, thus, succeeds wholly on the legal issues it does not appear to me on an equally sound footing on the factual ones. Reference to the judgment of acquittal recorded by the learned Magistrate against which the appeal is directed would show that he did not rest the same merely on the legal ground but equally on an appraisal of evidence. For good reason he held that the sample of milk was taken in contravention of the procedural requirements of the law. It was also found that the only public witness namely Ajit Singh P.W. 2 had conceded in cross-examination that, in fact, he was busy in his own work when the sample was being taken from the accused. This witness also confessed ignorance about the fact whether the bottles in which the samples were sealed were adequately washed or whether they were dry. The learned Magistrate had further taken notice of the fact that the public witness was lacking in independence and impartiality and was apparently subservient to the Food Inspector. The testimony of P.W. 1 Sh. M.P. Singh Sodhi was held by the learned Magistrate to be of a nature which could not command absolute reliance standing by itself alone.

The aforementioned findings of fact were not and in fact, could not be seriously assailed on behalf of the Appellant State. That being so it is patent that the judgment does not deserve to be reversed in this appeal directed against the acquittal of the Respondent. Consequently I hereby dismiss the same.

Man Mohan Singh Gujral, J.

I agree.

S.C. Mittal, J.

I agree.