The Municipal Committee Amritsar v. Shri Jaswant Singh .

Pritam Singh Pattar, J.:— By this judgment the following two criminal appeals filed by the Municipal Committee, Amritsar, will be decided as the points of law involved in both these appeals are the same:

1. The Municipal Committee Amritsar… v. Shri Jaswant Singh…. No. 1150 of 1971, and

2. Municipal Committee Amritsar v. Harbans Singh, Criminal Appeal No. ??? of 1971.

2. The Bench granting leave to file Criminal appeal No. 1393 of 1971 had ordered that appeal may be heard along with Criminal Appeal No. 1150 of 1971. The facts of Criminal Appeal No. 1150 of 1971 are that on 9th September, 1970, at about 11 A.M, Shri Ram Saran Dass, Food Inspector of the Municipal Committee, Amritsar was present outside Chatiwind Gate, Amritsar near the octroi post and Dr. R.P Bhatia was also with him. Jaswant Singh accused came there with about 12 liters of cow's milk for sale and the Food Inspector, after disclosing his identity and serving notice Exhibit PA on him purchased 660 ml. of milk from him on payment of 65 paise as paise. The sample was then divided into three equal parts and was put in three clean and dry bottles. The Food Inspector added 18 drops of formalin preservative of the prescribed standard to each sample bottle and than the bottles were stoppered, labelled, wrapped and sealed. One sealed bottle was given to the accused and the other sealed bottle was given to the Public Anally for analysis and the third bottle was kept by the Food Inspector. The Public Analyst in his report Exhibit P.E gave the result of the analysis of the sample as follows:—

Milk fat = 5.3 per cent Milk solids nor fat = 8.2 per cent instead of 8.5 percent.

3. He gave the opinion that the sample of cow's milk was adulterated under section 2(1)(i) of the Prevention of Food Adulteration Act. The Food Inspector thereafter filed complaint against the accused Jaswant Singh and after recording the preliminary evidence, the Judicial Magistrate 1st Class, Amritsar framed charge against the accused under section 16(a)(i) read with section 7 of the said Act on 10th November, 1970. The learned Magistrate held that there was only a deficiency of 3 percent in milk solids not fat and in view of the law laid down in Municipal Corporation Of Delhi…Petitioner v. Om Prakash… Prakash,1 this deficiency was negligible and, therefore, the benefit of doubt must be given to the accused. As a result, he acquitted the accused of the offense with which he was charged. Feeling aggrieved, the Municipal Committee, Amritsar, filed this appeal and the leave to file the appeal was given by the Motion Bench on 25th October, 1971.

4. In the second appeal (Criminal Appeal No. 1393 of 1971), Harbans Singh accused was intercepted by the Food Inspector, Shri Satya Paul Sharma, on 11th April, 1970, at 9.15 A.M and after complying with the requisite formalities he purchased 660 ml. of cow's milk from him on payment of Re. 0.70 and thereafter this milk was divided into three equal parts and then put into three dry and clean bottles and after adding the requisite quantity of formalin the bottles were labelled, stoppered, securely fastened and sealed. One of those bottles was given to the accused and the other was sent to the Public Analyst for analysis and the third was kept by the Food Inspector. The Public Analyst in his report Exhibit P.F mentioned that the result of analysis of the sample sent to him was as follows:—

Milk fat = 5.1 per cent. Milk solids not fat = 6.8 per cent instead of 8.5 per cent.

5. The Food Inspector filed a complaint against him and during the trial at the request of the accused Harbans Singh, the sample in his possession was sent to the Director, Central Food Laboratory, Calcutta, and the certificate of the Director is Exhibit C.I The result of his analysis was as follows:—

Mil fat = 3.7 per cent. Milk solids not fat = 9.7 per cent. Canesugar = Absent. Starch = Absent.

6. In his opinion, the sample of the cow's milk was adulterated.

7. The learned Judicial Magistrate Ist Class. Amritsar, held that the certificate of the Central Food Laboratory, Calcutta superseded the report of the Public Analyst and according to the report of the Director of the Central Food Laboratory, Calcutta there was a deficiency of 3 per cent, in milk fat and that the milk was, therefore, adulterated and he convicted him under section 16(1)(a)(i) read with section 7 of the Prevention of Food Adulteration Act and sentenced him to rigorous imprisonment for a period of six months and to pay a fine of Rs. 1,000/-. In default of payment of fine he was ordered to undergo further rigorous imprisonment for four months. The accused was further convicted under section 16(1)(a)(ii) of the Act, as he had no license to sell the milk on that day and he sentenced him to imprisonment till the rising of the Court and to pay Rs. 200/- as fine. In default of payment of fine he was ordered to further undergo rigorous imprisonment for one month. Against this judgment Harbans Singh accused filed an appeal in the Court of Session which was decided by the Additional Sessions Judge Amritsar on August 12, 1971. The Additional Sessions Judge maintained his conviction under section 16(1)(a)(ii) ibid for selling milk without license. However his conviction under section 16(1)(a)(i) was set aside on the ground that there was deficiency of only 3 per cent, regarding milk tat and this was a marginal and negligible deficiency in view of the law laid down in Om Parkash's case (supra) and he acquitted him. Feeling aggrieved the Municipal Committee Amritsar filed this appeal.

8. In Criminal Appeal No. 1150 of 1971 in the sample there was a deficiency of 3 per cent in milk solids not fat and in the other appeal (Criminal Appeal No. 1393 of 1971), there was a deficiency of 3 per cent in milk fat.

9. It is well settled law that the power of the High Court in an appeal against acquittal are not different from the powers of the same court in hearing an appeal against a conviction. The High Court in dealing with such an appeal can go into all questions of fact and law and reach its own conclusions on evidence provided it pays due regard to the fact that the matter had been before the Court of Session and the Sessions Judge had the chance and opportunity of seeing the witnesses depose to the facts. Further the High Court in reversing the judgment of the Sessions Judge must pay due regard to all the reasons given by the Sessions Judge for disbelieving a particular witness and must attempt to dispel those reasons effectively before taking a contrary view of the matter. It may also be pointed out that an accused starts with a presumption of innocence when he is put up for trial and his acquittal in no sense weakens that presumption and this presumption must also receive adequate consideration from the High Court vide Laxman Kalu Nikalje v. State Of Maharashtra . AIR 1968 SC 1390.. To the same effect are the decisions in Keshav Ganga Ram Navge v. The State of Maharashtra,3 Rajendra Rai v. The State of Bihar . 1975 3 SCC 193 and Khedu Mohton v. State of Bihar . 1970 2 SCC 450. It was further held in Khedu Mohton's case (supra) that unless the conclusions reached by it are palpably wrong or based on erroneous view of the law or that, its decision is likely to result in grave injustice the High Court should be reluctant to interfere with its conclusion. If two reasonable conclusions can be reached on the basis of the evidence on record then the view in support of the acquittal of the accused should be preferred. The fact that the High Court is inclined to take a different view of the evidence on record is not sufficient to interfere with the order of acquittal.

10. Having stated the law now I proceed to discuss the arguments of the counsel for the parties. Mr. Harinder Singh, learned counsel for the appellant, contended that in both these cases the Courts committed error of law in following Om Prakash's case (supra) and that milk must be held to be adulterated even if there is a small or negligible deficiency either in the milk fat or milk solids not fat. If either of the constituents of the milk is deficient then the milk is adulterated. In support of this contention he relied on several decisions. The first decision relied upon by him is Hans Raj v. The State . 1970 72 PLR 380.. The facts of that case were that the Food Inspector had purchased cow's milk from the accused which was divided into three equal parts and each part was put in a separate dry and clean bottle and all the three bottles were duly sealed after adding 18 drops of formalin preservative. One of the sealed bottles was sent to the Public Analyst for analysis whose report was as follows:

Milk fat = 3.6 per cent Milk solid = 8.7 per cent

11. At the request of the accused, the sample given to him was sent to the Director, Central Food Laboratory, Calcutta, by the trial Court and the report of the Director was as follows:

Milk fat = 2.5 per cent Milk solid = 102 per cent

12. This report of the Director superseded the report of the Public Analyst according to section 13 of the Prevention of Food Adulteration Act. On these facts it was held:—

“That whenever a standard is prescribed by the Act or the rules thereunder the milk must be held to be adulterated, no matter if the deficiency is found to exist only in regard to one of its constituents and whatever be the margin of that deficiency. These matters can, however, be taken into consideration in awarding sentence. Adulteration is an anti-social crime and a deterrent sentence is always called for.”

13. In that case, there was a deficiency of 1.5 per cent in the milk fat and, therefore, it has no application to the cases in hand.

14. The next decision relied upon by him is Municipal Corporation of Delhi v. Bishan Samp,7 a Full Bench decision of the Delhi High Court. (Note: ‘F.A.C’ stands for Food Adulteration Cases.) In that case, the report of the Public Analyst showed that in the sample of cow's milk, milk fat was 6.7 per cent and milk solids were 8.03 per cent as against 8.5 per cent. The sample was sent to the Director, Central Food Labratory, Calcutta, and his report was as follows:

Milk fat = 72.72 per cent Milk solids not fat = 6.4 per cent

15. Thus, there was a deficiency of 2.1 per cent in the milk solids and the milk was held to be adulterated. This decision is therefore clearly distinguishable.

16. The next case relied upon by him is Municipal Corporation of Delhi v. Nanu Ram,8 a Division Bench decision of the Delhi High Court. In that case, there was a deficiency of 1.19 per cent in the milk solids in the cow's milk and it was held as follows:—

“The standard prescribed for cow milk requires a minimum of fat and also a minimum of non fatty solids. The standard does not prescribe any minimum of total solids in case of cow milk. Where the legislature has thought it necessary to prescribe a minimum of total solids it has specifically done so as in the case of Milk ices or milk lollies and condense milk unsweetened. Since the milk sold by the respondent to the Food Inspector did not conform to the standard prescribe for cow milk, it must be held to be adulterated.’

17. In the case, Kantilal Amkalal v. I.G Patel,9 relied upon by the learned counsel, it was held that—

“An article of food is deemed to be adulterated if the quality of purity of the article falls below the prescribed standard or its constituents are present in quantities which are in excess of the prescribed limits of variability. The words used are, “prescribed standard” and not “prescribed standards”. Prima facie, it would therefore appear that if the article of food does not conform to any of the prescribed standards, it will come within its mischief. Even if all the tests prescribed are not followed, it would not necessarily mean that the court could not conclude that a particular article of food is adulterated if it does not conform to one or more of the standards prescribed.

18. In all these cases relied upon by the counsel for the appellant, there was a large deficiency either in the milk fat or in milk solids and in none of these cases there was any small or negligible deficiency either in the milk fat or in the milk solids and, therefore, these cases are distinguishable and have no application to the cases in hand.

19. Reliance was also placed by the counsel for the appellant on M.V Joshi v. M.U Shimpi . A.I.R 1961 S.C 1494.. In that case, a sample of butter was taken from a shopkeeper. The Public Analyst analysed the sample of the butter sent to him by the Food Inspector and he reported as follows:—

Milk fat = 64.67 per cent Foreign fat = 18.32 per cent Moisture = 19.57 per cent

20. According to Appendix B, Rule A.11.05 of the rules framed under the Prevention of Food Adulteration Act, butter prepared exclusively from the milk or cream of cow or buffalo, or forth, etc. shall contain not less than 80 per cent of milk fat and not more than 16 per cent of moisture. No preservative is permissible in butter. Thus, there was a deficiency of 15.33 per cent in milk fat and there was an excess of 3.57 per cent in moisture in the sample of the butter. The sample was, therefore, held to be adulterated. This case is clearly distinguishable as the sample of the butter was found to be highly adulterated.

21. As against this, the learned counsel for the respondents in both these appeals relied on the Supreme Court judgment in Malwa Co-operative Milk Union Ltd. Indore v. Biharilal . 1971 F.A.M.L.R II page 1.. Criminal Appeals Nos. 235 and 236 of 1964 decided on August 14, 1967. (This case is also reported as 1973 F.A.C 375) In this case their Lordships of the Supreme Court added the percentage of both the contents of milk for purposes of ascertaining the quality thereof. In that case two samples of buffalo's milk were taken. On the analysis of these samples, the Public Analyst reported as follow:—

1st sample: Milk fat = 6 per cent Milk solids not fat = 7.9 per cent 2nd sample: Milk fat = 5.9 per cent Milk solids not fat = 7.7 per cent

22. According to rule 5 of Appendix ‘B’ item A.11.01.02 framed under the Prevention of Food Adulteration Act buffalo's milk must contain milk fat 5 per cent and milk solids not fat 9 per cent in Madhya Pradesh. The said case related to the State of Madhya Pradesh. The learned counsel relied on the following observations in that case in support of his contention:—

“On analysis samples of Buffalo's milk found to contain milk fat 6 per cent solid not fat 7.9 per cent in first sample and milk fat 5.9 per cent and solid not fat 7.7 per cent in Second sample, held ‘it would, therefore, appear that the solids in the milk should be of the order of 14 per cent minimum. In the samples they were almost 14 per cent. In the one case being only, 1 per cent less and in the other. 4 per cent less. The fat content appears to be more than the minimum and the non-fat solid contents to be proportionately less. It is not clear whether the analyst was able to isolate the fat content so successfully as not to have left room for this slight variation. The variation was thus border-line. What is generally extracted is cream and not the other solids’. Further held, ‘But that does not prove that near perfection must be accepted in the work of the analyst when the difference from standard is only 1 per cent in one case and 4 per cent in the other. It is possible that a slight error in calculation or in isolation of fat might have been made. The variations in the solid contents of the milk prima facie were not so great as to merit attention even in the first instance.”

23. In the above-mentioned case, there was a deficiency of 1.1 per cent in solids not fat in the first sample, and 1.3 per cent deficiency in solids not fat in the second sample. Thus, according to this decision, we can add the percentages of milk fat and milk solids not fat to work out the overall deficiency to find out whether the milk is adulterated or not. The contention of the learned counsel for the appellant that the addition of percentages of milk fat and milk solids not fat is not permissible under the rules has no force in view of the decision of the Supreme Court in the above case and must be repelled.

24. Mr. Harinder Singh further contended that the said question was not considered by the Supreme Court on the merits of the order of acquittal but with reference to the broader issue, the power of the High Court in revision to set aside acquittal in marginal cases like the one before the Court. This contention cannot be accepted. It is correct that in that case the Additional City Magistrate, Indore, trying the cases allowed the application of the Food Inspector to withdraw the cases and he acquitted the accused. Against these orders, two petitions for revision were filed before the Sessions Judge for reporting the case to the High Court but the Sessions Judge dismissed those petitions. Bihari Lal then filed revision petitions in the High Court which were accepted and the High Court ordered retrial of the accused. The Supreme Court held that this was hardly a case in which the High Court should have exercised its power to set aside in revision an order of acquittal and to order the determination of the issues afresh. It is a well-settled law that a decision is binding not because of its conclusion but in regard to its ratio and the principle laid down therein: vide B. Shama Rao v. Union Territory Of Pondicherry . AIR 1967 SC 1480.. The Supreme Court in accepting those revision petitions laid down the principle of determining whether a milk is adulterated or not and that decision is binding. There is no force in the contention of the learned counsel for the appellant and the same is rejected.

25. The counsel for the respondents also relied on Municipal Committee Amritsar v. Karam Singh . 1971 73 PLR 846.. In that case the report of the Public Analyst showed that the result of his analysis of the cow's milk was as follows:—

Milk fat — 4.6 per cent (as against requisite 4 per cent) Milk solids not fat — 8 per cent (instead of the requisite 8.5 per cent).

26. The sample bottle which was given to the accused was sent to the Director, Central Food Laboratory, Calcutta, and his report was that the sample contained:—

Milk fat — 4.6 per cent Milk solids not fat — 7.7 per cent

27. This report superseded the report of the Public Analyst. Thus, according to the report of the Director, there was a deficiency of 8 per cent in the milk solids not fat. On these facts, it was held, by a Division Bench of this Court:—

“The Certificate of the Director, which had superseded the report of the Public Analyst, shows that in the sample, ‘milk fat’ was 4.6 per cent and ‘milk solids not fat’ were 7.7 per cent. Ignoring the difference of 0.3 per cent regarding ‘solids’ between the report of the Analyst and the Certificate of the Director which difference might, be due to the time-lag between the two examinations, the latter having been conducted as long as 14 months after the purchase of the sample it will be seen that the ‘milk fat’ was in excess of the prescribed percentage, by 0.6 per cent while the ‘milk solids not fat, were deficient by about 0.5 per cent. Off setting the 0.6 per cent excess of ‘milk fat’ against the 0.5 per cent deficiency of ‘milk-solids, the over-all deficiency works out to hardly 0.1 per cent. Since this deficiency is negligible no grave injustice will be perpetuated if the acquittal is not set aside. In Malwa Co-operative Milk Union Limited v. Bihari Lal. Cr. A. Nos. 235-236 of 1964, decided on 14th August, 1967, the Supreme Court refused to set aside the acquittals when there was a deficiency of 0.1 per cent in one case, and 0.4 per cent in the other of the solids in milk. Similarly, in Municipal Corporation Of Delhi…Petitioner v. Om Prakash… Parkash, 1970 Cri. L.J 1047, a Division Bench of Delhi High Court, in an appeal by the complainant with special leave under section 417(3) Cr. P.C declined to set aside the acquittal though it had been proved that there was a deficiency of 0.3 per cent of the analysis.”

28. The above-mentioned decision of the Supreme Court in Malwa Co-operative Milk Union Ltd.'s case was followed by the division Bench and it was held that after adding the percentages of milk fat and milk solids not fat, the overall deficiency was 1 per cent and this was negligible and the acquittal of the accused was maintained and the appeal of the Municipal Committee, Amritsar, was dismissed.

29. In the Municipal Committee, Amritsar v. Behari Lal . 1974 1 Cr. L.T 154. it was held by a Division Bench of this Court that—

“Where according to the report of the Public Analyst milk fat found in the sample was 3.4 per cent, instead of 4 per cent, thus deficient by 0.6 per cent, as regards milk solids not fat the sample was found to contain 8.8 per cent, i.e 0.3 per cent, in excess of the requirement prescribed by law, off setting the excess of milk solids not fat against the deficiency of milk fat the overall deficiency worked out to 0.3 per cent, held, the deficiency found in the sample being not much, no injustice would be perpetuated if the acquittal is not set aside.”

30. In Municipal Corporation Of Delhi…Petitioner v. Om Prakash… Parkash,15 it was held:—

“In a case where the chemical analysis of a sample of milk taken six months ago revealed a deficiency of 0.5 per cent, in solid fat and accused pleaded that the deficiency was due to the delay in making the analysis:

“Held, that even in addition to the fact of passage of time pleaded by the accused, the deficiency was merely marginal and negligible. The accused was entitled to the benefit of doubt.”

31. To the same effect was the law laid down in Balwant Singh… v. The State Of Punjab…. . 1973 CLR 96.. In that case, there was a deficiency of 7 per cent, in the milk solid but the overall deficiency was 5 per cent, in the constituents of the milk. Similar was the law laid down in Nanak Singh v. State,17 in which case there was a deficiency of 5 per cent, in milk solids. As mentioned above in Criminal appeal No. 1150 of 1971, there was a deficiency of 3 per cent, in milk solids only and in Criminal Appeal No. 1393 of 1973 there was a deficiency of 3 per cent, in the milk fat. According to the rules framed by the Government under the Prevention of Food Adulteration Act, a cow's milk must contain 4 per cent, fat and 8.5 per cent, non-fat milk solids. If we add the percentages of milk fat and milk solids in Criminal Appeal No. 150 of 1971, then there is no overall deficiency in the contents of the milk. Similarly, if we add the percentages of milk fat and milk solids not fat in the second appeal, Criminal Appeal No. 1393 of 1971, then there is no deficiency in the constituents of the milk. Even otherwise, the deficiency in milk solids in one appeal and the milk fat in the other appeal is only of 3 per cent, which is negligible and, therefore, the decision of the lower Courts in acquitting the accused cannot be said to be palpably wrong or based on erroneous view of the law or that the decisions are likely to result in gross injustice. In one case, the fat contents were found to be more than the minimum and the non-fat solids contents were 3 per cent, less than the percentage prescribed under the rules. In the other case, the non fat solids were more than the prescribed percentage while the fat was 3 per cent, less than the minimum prescribed under the rules. It is not clear whether the Analyst was able to isolate the fat contents from the non fat solids so successfully as not to have left room for this slight variation. The variation was thus border line. It is possible that a slight error in calculation or in isolation of the fat contents and the non-fat solids might have been made. The variations in the constituents of the milk in both these cases prima facie were not so great and are quite small and negligible. Therefore, in view of the decision of the Supreme Court and the two Division Bench decisions and two Single Bench decisions of our own High Court cited above, it is held that there is no deficiency in the constituents of the milk in both these appeals and the decision of the trial Court in Criminal Appeal No. 1150 of 1971 and that of the learned Additional Sessions Judge in Criminal Appeal No. 1393 of 1971 are perfectly correct.

32. There is no force in both these appeals and the same are dismissed.

33. Appeals dismissed.