Criminal Appeals Nos. 207 and 400 of 1984

31st January, 1992.

Petitioner Counsel: R. Kannappa Rajendran, Govt. Advocate (Criminal Side) for Public Prosecutor,
Respondent Counsel: None, .

Cases Cited:
1985 Cri LJ 508,AIR 1985 SC 104 [Para 14]
448/83 and 468/83 State by Public Prosecutor v. K. U. Jayaraman Mahesh and Rajamanickam, CA No. 437/83 [Para 16]
1982 FAJ 257 (All),(1981) FAC 14 (Dissented from) [Para 2]
State represented by the Public Prosecutor v. Periyasamy, CA No. 663/79 [Para 16]
Cri Rev Case No. 485/77 Nagarajan v. State represented by the Public Prosecutor [Para 16]
State by Public Prosecutor v. Muthiah Swamikannu, CA No. 766 of 1976 [Para 16]
(Ker) (FB), 1975 Cri LJ 97 [Para 13]
1975 Cri LJ 928,AIR 1975 SC 1087 [Para 13]
(Dissented from), 1973 Cri LJ 1413 [Para 2]
1972 Cri LJ 1309,AIR 1972 SC 2044 [Para 12]
1971 Cri LJ 1556,AIR 1971 SC 2346 [Para 11]
1964 (2) Cri LJ 229,AIR 1964 SC 1135,1964 All LJ 732 [Para 10]
(1943) 44 Cri LJ 177,AIR 1943 Mad 47 [Para 12]

JUDGMENT

JUDGMENT :-Since both these State Appeals involved a common question of law, they are disposed of together under this common judgment.

2. The State has filed these appeals challenging the acquittal of the accused in each of the cases, tried for an offence under the Prevention of Food Adulteration Act. C.A. No. 207 of 1984 challenges the acquittal of the respondent therein by the Chief Judicial Magistrate, Thanjavur at Kumbakonam in C.A. No.53/82 of an offence u/Ss. 7(i), 16(1)(a)(i) read with S., 2(1a) (a)(m) of the Prevention of Food Adulteration Act, 1954, the allegation being that the sample of mixed-milk taken from the respondent by the Food Inspector on 8-1-1982, was found to be deficient in solids not fat to the extent of 14%. C.A. No. 400 of 1984 challenges the acquittal of the respondent therein by the same Magistrate in S.T.C. No. 279 of 1982 of the same offence, tried on the allegation that the sample of mixed-milk taken by the Food Inspector on 22-7-1982, was found to be deficient in solids not fat to the extent of 18%. The common ground for acquittal is that, in both the cases, though there was deficiency in one of the constituents of milk, namely, solids not fat, there was an excess of the other constituent, namely, fat and as such the milk could not be taken to be adulterated. In both the cases the learned Magistrate has placed reliance on two decisions of the Patna High Court - Ram Prasad, v. State of Uttar Pradesh 1982 F.A.J. 257 andSultan Shah v. State 1973 Cri LJ 1413 to hold that the deficiency could have been caused due to improper feeding of the cow and no inference that water was added could be drawn.

3. Though notices from court had been taken to the respondents on several occasions, they have all been returned unserved. The present whereabouts of the respondents are not known. This judgment is given on perusing the records and on hearing the learned Public Prosecutor.

4. The question that arises for determination is whether, the acquittal of the accused can be sustained for the reasons given by the learned Magistrate.

5. The only ground for acquittal is that since there was excess of one of the constituents of milk, no inference that water had been added to the milk could be drawn and the milk could not be said to be adulterated. The learned Magistrate has relied upon the two decisions of the Patna High Court mentioned earlier, which lay down the above proposition of law.

6. A perusal of the various provisions of the Prevention of Food Adulteration Act (the Act for short) and the rules framed there-under, as well as the decisions of the Supreme Court and of this court would clearly show that, the view of the Patna High Court, expressed in the above decisions, does not reflect the correct position of law.

7. The Act is a consumer legislation, intended to prevent adulteration of food and ensure purity in the articles of food. It is with this object that the Act lays down certain prohibitions and has fixed certain standards for different articles of food. U/ S. 3 of the Act, the Central Government is empowered to constitute a Committee called the Central Committee for Food Standards. It is seen from sub-sec. (2), that the Committee consists of exparte in various branches, including Health Services, Departments of Food and Agriculture. Representations from the Central Government and the various State governments from Commercial and Industrial Interests, Consumers Interests, Hotel Industry, Medical profession and so on. The Committee is to advise the Central and State Governments on matters arising out of the administration of the Act. S. 23(1)(b) enables the Central Government to make rules, defining the standards of quality for and fixing the limits of variability permissible in respect of any article of food. The Prevention of Food Adulteration Rules, 1955 have thus been framed. Part III of the Rules is captioned as 'Definitions and Standards of Quality'. Rule 5 in Part III is as follows :

"Standards of quality of the various articles of food specified in Appendix-B to, this rules are, as defined in that Appendix."

8. The term 'adulterated' is defined in S. 2(ia). It is wide and all comprehensive. The clauses relevant for the present case are as hereunder.

(ia) "Adulterated" - article of food shall be deemed to be adulterated -

(m) "If the quality or purity of the article falls below the prescribed standard or its constituents are present in quantities not within the prescribed limits of variability but which does not render injuries to health." (Emphasis supplied)

To the same effect is sub-cl. (1) dealing with adulteration, which is injurious to health. A plain reading of sub-cls. (1) and (m) show that when an article of food consists of more than one constituent, and limits of variability are prescribed for each constituent, excess or deficiency of any one of the constituents, would still make the food adulterated.

9. The term "adulterated" has a legal connotation and is not be restricted to a layman's meaning, of adding extraneous matter. Appendix-B gives the definitions and standards of quality of different items of food and different varieties of each item. Clause A. 11 of Appendix-B dealing with "Milk and Milk Products" defines ten preparations of milk and gives the minimum for each constituent for each designated preparation for each State in the country. Those standards vary for State to State. Where therefore, a sample of food does not conform to the standards prescribed in Appendix-B, the sample is adulterated within the meaning of the Act.

10. The following decisions of the Supreme Court ought to indicate to us the finality of the standards fixed in Appendix-B vis-a-vis the court. When the validity of the Prevention of Food Adulteration Rules 1955 was challenged, the Supreme Court in State of Uttar Pradesh v. Karthar Singh AIR 1964 SC 1135 : (1964 (2) Cri LJ 229) observed at page 283 (of Cri LJ) :

"the standards themselves, which will be noticed, have been prescribed by the Central Government on the advice of a Committee, which included in its composition, persons

considered experts in the field of food technology and food analysis."

The court further observed (at page 283) :

"There is a presumption that every factor, which is relevant or material, has been taken into account in formulating the classification of the zones and the prescription of the minimum standards to each zone, and where we have a rule framed with assistance of a Committee containing experts, such as the one constituted u/ S. 3 of the Act, that presumption is strong, if not overwhelming."

11. In A.P.G. and S. M. Association v. Union of India, AIR 1971 SC 2346 : (1971 Cri LJ 1556) the Supreme Court reiterated the same view, by further observing that though the various items in the schedule, setting out standards of quality, use technical expressions, with which an ordinary retail dealer may not be familiar, yet the standards have been fixed by the Committee constituted u/S. 3 and the Committee consists of experts and representatives of the Governments and have to be adhered to.

12. Again, in Jagdish Prasad v. State of West Bengal AIR 1972 SC 2044 : (1972 Cri LJ 1309) when an attempt was made to refer to certain technical books and certain decisions of some High Courts including In re Perumal and Co. AIR 1943 Madras 47 : (44 Cri LJ 177) to contend, that the standards prescribed in Appendix-B is not conclusive, the Supreme Court repelled the arguments by observing :

"We cannot allow any fresh evidence to be used, nor do we think that the decisions referred to, even if they justify that contention, can alter or vary the standard fixed in exercise of the powers conferred by the Act in Appendix-B to the rules."

13. In Amritsar Municipality v. Hazara Singh AIR 1975 SC 1087 : (1975 Cri LJ 928) the Supreme Court quoted with the approval, the following passage from the decision of the Full Bench of the Kerala High Court in State of Kerala v. Parameswaran 1975 Criminal Law Journal 97 (at page 101 (of Cri LJ)) :

"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 fluctuating standards. The disadvantages of the resulting unpredictability, uncertainty and impossibility of arriving at fair and consistent decisions are great."

14. In State of Maharashtra v. Baburao AIR 1985 SC 104 : (1985 Cri LJ 508 when the accused who had sold ice-cream which contained only 5.95% of milk fat as against the minimum of 10% prescribed by paragraph A. 11.02.08 of Appendix-B, was acquitted on the ground that ice-cream is made out of milk, that for buffalo milk, minimum fat prescribed is only 5% whereas for ice-cream a minimum of 10% was required and that, therefore, the standard was impossible of compliance, the Supreme Court set aside the acquittal observing that, there were several ways by which the higher percentage of milk fat in ice-cream could be attained, but that it was not for the court to advise caterers and restaurents about how the ice-cream containing the minimum prescribed percentage of milk fat should be prepared. Referring to the definition of 'adulteration' in Ss. 2(1a)(1) and 2(1a)(m) the court held that, the ice-cream was adulterated.

15. The above decisions, as well as the provision of law would clearly show that the standards prescribed in Appendix-B are part of the statute. Some articles of food consist of several components or constituents and for each of the components, standards have been fixed. These standards are not fixed in an arbitrary manner. They are fixed by experts and the standards so fixed are absolute, since an element of variability is already provided in it. The court, is not an expert and the statute gives no power to the court to vary or meddle with the standards by any process of reasoning. The decisions of the Patna High Court, amount to varying the standards fixed in the statute. Water need not be added to milk, to bring it within the definition of "adulterate" in S. 2(ia) of the Act. It is not for the court to speculate on the breed and health condition of the cow. The court has merely to see whether the sample conforms to the standards prescribed.

16. This court has consistently taken the view that in the case of milk for which a minimum is prescribed for each of the constituents the sample should contain the minimum in respect of each constituent. An excess of one cannot be taken to compensate the deficiency of the other. In C.A. No. 766 of 1976 State by Public Prosecutor v. Muthiah Swamikannu, J. dissented from the view expressed by Patna High Court in the decisions referred to above and held that each of the constituents of milk should conform to the minimum prescribed for it and an excess of one would not compensate the deficiency of the other. The same view has been expressed by C.J.R. Paul, J. in Criminal Revision Case No. 485/77 Nagarajan v. State represented by the Public Prosecutor and later by Singaravelu, J. in C.A. No. 663/79 State represented by the Public Prosecutor v. Periyasamy and finally by K. M. Natarajan, J. in a detailed judgment in C.A. 437/83, 448/83 and 468/83 State by Public Prosecutor v. K. U. Jayaraman, Mahesh and Rajamanickam. It is unfortunate that none of these decisions has been reported in any Law Journal, resulting in our subordinate courts following the decisions of another High Court, contrary to the view consistently expressed by this court.

17. This being the only ground for acquittal and the same having been found unsustainable in law, the acquittal is erroneous and has to be set aside. However, in view of the fact that the whereabouts of the respondents are not known, no further orders are passed in these appeals. The legal error is set right and the appeals are dismissed.

Order Accordingly