M. Hidayatullah, J.
1. The Malwa Co-operative Milk Union Ltd., Indore appeals by certificate against the order of a learned single Judge of the High Court of Madhya Pradesh setting aside an acquittal and ordering retrial of of the Union and 2 others for an offence Under Sections 7(i) and 16(1)(a)(i) of the Prevention of Food Adulteration Act, 1964. The matter arises in the following circumstances.
A Food Inspector filed two complaints against the Union, its General Manager and a Servant of the Union for alleged offences under the Prevention of Food Adulteration Act, 1964. It appears that some samples were taken from buffalo milk which the Union was supplying and on analysis this milk was found to be sub-standard. We shall give the details of the analysis presently. While the prosecution was pending, an application was filed in the two cases by the Public Prosecutor asking for permission of the court to withdraw the above cases. It was stated in the applications that the Union which is a Co-operative Society was started for the distribution of Milk and was likely to become one of the major milk distributors in Indore City and therefore the Corporation of the City of Indore considered that it was not in the public interest to continue the prosecutions specially when none of the accused had personally benefited. The Additional City Magistrate trying the case allowed these applications and the cases were therefore withdrawn and an acquittal was recorded Under Section 248 of the Code of Criminal Procedure.
2. One Biharilal s/o Onkarji Purohit, Secretary Doodh Vikreta Sangh, Indore, thereupon filed two applications for revisions before the Sessions Judge, Indore for reporting the cases to the High Court. His applications were dismissed by the Sessions Judge. He then filed revision applications in the High Court and by the order of the learned single Judge the acquittal was set aside and a retrial was ordered. In these appeals the question is whether the learned single Judge had exercised his discretion on sound judicial lines in setting aside the acquittal and ordering a retrial.
3. The milk which was sent for analysis was examined by the Public Analyst, Indore and he found the contents to be as follows:
1st sample.
Milk Fat 6%
Solids non-fat 7.9%
Test for formalin positive
2nd Sample
Milk Fat 5.9%
Solids non-fat 7.7%
Test for formalin positive.
4. The rules made under the Act show that the content of buffalo milk should be as follows:
Buffalo milk shall contain not less than 5.0 per cent of milk fat except in Delhi, Punjab, Pepsu, Uttar Pradesh, Bihar, West Bengal, Assam, Bombay and Saurashtra where it shall be not less than 6 per cent. The milk Solids other than milk fat, shall be no less than 9 per cent.
(Rule 5 appendix B item A 11.01,02)
5. 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 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 borderline. What is generally extracted is cream and not the other solids.
6. However, the question is a general one, It is about the exercise of the powers of the High Court in revision to set aside acquittals in cases such as these. The facts of the case were that a prosecution was launched against a co-operative society registered as a joint stock company which was carrying on the function of procuring and supplying milk in Indore City on a very large scale. It was not interested in making a profit but in organising the milk supply to a big city. No doubt, it was assisted by highly qualified personnel and probably by first rate machinery. The argument of Mr. D.P. Singh, that in these circumstances one would expect near perfection in the milk, may be accepted. 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 cent in the other. It is possible that a slight error in calculation or in isolation of fat might have been made. But without speculating upon this aspect of the case, it is quite clear to us that this was hardly the kind of case in which the High Court should have exercised its powers to set aside in revision an acquittal which proceeded not after trial and determination of these and several other facts in issue, but on the withdrawal of the case by the Public Prosecutor at the instance of the Corporation and possibly of Government. The State Government apparently thought that this was not a case in which the Union should be subjected to a prosecution at the start of its venture for an almost nominal variation in the contents of milk. The learned single Judge failed to notice that the revision applications were rejected by the Sessions Judge for very adequate grounds and that the revision applications themselves had proceeded from a stranger who, as a rival, was interested in seeing that some obstruction to the work of the Union would result.
7. We do not think that the High Court was really called upon to exercise its extraordinary powers of revision to set aside an acquittal which the policy of the Corporation and Government indicated was desirable, if the supply of milk to the city of Indore was to be regulated. The variations in the solid contents of the milk prima facie were not so great as to merit attention even in the first instance and we think that the High Court might well have left the acquittal endorsed by the Sessions Judge to stand. In these circumstances, we think that the appeals should be allowed and the order of the learned single Judge discharged and the acquittal restored. We order accordingly.