TMI Blog1974 (7) TMI 127X X X X Extracts X X X X X X X X Extracts X X X X ..... and is therefore adulterated. The sample contains not less than nine per cent (9.0%) of added water, as calculated from the freezing point (Hortvet's method). The percentage of added water has been calculated on the basis of the fact that the freezing point of genuine cow's milk is 0.53 C. After receipt of the report P.W. 1 filed the complaint on September 5. 1972, Besides P.W. 1, an attestor in the memorandum prepared by him at the time of purchase, P.W. 3, also gave evidence about the sale of milk by the respondent. The Magistrate found that the sale of milk as alleged was proved but acquitted the respondent holding that the percentage of added water in the sample was negligible. 3. It is sufficiently proved in this case by the evidence of the prosecution witnesses, which is reliable, that the res-pendent sold '660 m.l. of milk to P.W. 1 as alleged, by the prosecution and by the report of the Analyst that that milk was adulterated as it did not conform to the standard. Therefore unless it is found that the variation of the standard was negligible and so could be ignored, conviction has to follow. 4. The Magistrate followed the decision of a learned Single ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... milk-fat he said in one case that it was 6% and in the other 5.9% and as regards solid-non-fat he said in one case it was 7.9% and in the other 7.7%. If the reports were accurate such differences could not have happened in the case of milk purchased from the same person and examined by the same authority. It was in those peculiar circumstances and on those peculiar facts that the Supreme Court happened to observe that the variation was on borderline, that it was not clear whether the Analyst was able to isolate the fat content 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. 8. The following sentence in the judgment of the Supreme Court after making those observations: 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 this and several other facts in issue, but on the withdrawal of the case by the Public Prosecu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r dictum of the Supreme Court should be accepted as binding. Declaration of law by that Court even if it be only by the way has to be respected. But all that does not mean that every statement contained in a judgment of that Court would be attracted by Article 141. Statements on matters other than law have no binding force. Several decisions of the Supreme Court are on facts and that Court itself has pointed out in Gurcharan Singh v. State of Punjab, 1956CriLJ827 and Prakash Chandra Pathak v. State of Uttar Pradesh AIR 1960 SC 195 that as on facts no two cases could be similar to its own decisions which were essentially on questions of fact and could not be relied upon as precedents for decision of other cases. In the State of Orissa v. Sudhansu Sekhar Misra (1970) ILLJ 662 SC and Madhav Rao Jivaji Rao Scindia v. Union of India [1971] 3 SCR 9 the Supreme Court held that it was not a profitable task to extract a sentence here and there divorced from the context from its judgment as containing a full exposition of the law on a question when the question did not even fall to be answered in that judgment and build upon it. In Rajeswar Prasad Misra v. State of West Bengal 1965 CriLJ 817 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndition of previous publication, make rules defining the standards of quality for, and fixing the limits of variability permissible in respect of any article of food . It is in exercise of this power that Rule 5 was made authorising standards of quality of the various articles of food specified in Appendix B (Appendix I) to the Rules. In view of this provision any article of food which does not conform to the standards specified in Appendix B (Appendix I) to the Rules which under Section 2(1) of the Act is said to be adulterated because the quality or 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....It appears to us therefore that standards having been fixed as aforesaid any person who deals in articles of food which do not conform to them contravenes the provisions of the Act and is liable to punishment thereunder. In another decision, M. V Joshi v. M. U. Shimpi [1961] 3 SCR 986, the Supreme Court after saying that it was a fundamental principle of interpretation that the primary test was the language employed in the Act and when the words were clear and plain C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 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. 16. 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. 17. The standards of qualities of the articles have been fixed by the Government under the provisions of the Act after due deliberation and after consulting a committee of competent men. It is for them to give due allowance for probable errors before fixing a standard. They may have done it also. There is no reason to assume otherwise. Therefore the conclusion is that for an article of food when a standard has been fixed under the Act it has to be observed in every detail. 18. With great respect we are unable to agree with the decision of the Delhi High Court in MANU/DE/0135/1969 (Delhi) and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... udge, on the facts and in the peculiar circumstances of that case. The observation contained in that judgment has to be read and understood with reference to the particular facts and circumstances of that case and without giving any meaning which the Supreme Court does not, on a proper reading of the judgment, appear to have intended. The later decision of the Supreme Court in MANU/SC/0121/1971 should set at rest the doubt, if any, entertained on this point. S.K. Kader, J. 23. My learned brother, Narayana Pillai J., with respect, has elaborately dealt with the points involved in the case. I also agree with the conclusions arrived at and1 the sentence passed against the accused by my learned brother. The article of food involved in the instant case is cow milk. The standard for different classes and designation of milk are prescribed under A-11.01.11 of Appendix 1 of the Prevention of Food Adulteration Rules, 1955. The standard of minimum per cent of milk fat and milk solid-non-fat for cow milk in various parts of the country has been prescribed. As per this, the minimum per cent of milk fat and milk solid-non-fat for cow milk in Kerala are 3.5 and 8.5 respectively, Under Rule ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uantities which are in excess of the prescribed limits of variability. This is clear from the definition under Section 2 of the Act, and it is evident that the possibility of the contents of milk varying because of various factors, has certainly been taken into consideration in prescribing the standard for cow milk under the Act insisting the compliance of certain minimum requirements. It may not therefore be proper for a court of law to go beyond the standard prescribed and assume that in certain circumstances the contents in the milk may go lower or higher than that prescribed in the statute. When a standard has been prescribed by law for an article of food and on analysis if it is found that it does not conform to the standard so prescribed, the sale of such an article of food contravenes the provisions of the Act and is an offence punishable thereunder. 24. An argument was also addressed on behalf of the respondent that if any water is added with milk, the milk fat content present in such milk would normally be less than the prescribed limit, that the milk fat content in the sample in question is 4,8 per cent which is in excess of the limits prescribed and that this shows th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly stated that under the Indian law when once an article of food is found below the standard prescribed it has to be presumed that the article of food is adulterated and the accused has no right to prove before court that notwithstanding any deficiency in the standard the stuff is, in fact, not adulterated; but appears to have failed to apply this principle to the facts of that case. The case on hand is one where the sample of milk sold to the Food Inspector by the accused is found to be not in accordance with the standard prescribed by law. 26. The accused has no case that the report of the Public Analyst has not furnished sufficient or adequate data. Under Section 13 of the Act the report of the Public Analyst in the prescribed form containing the result of analysis is admissible in evidence unless it is superseded by the certificate issued by the Director of Central Food Laboratory. By virtue of this section the report of the Public Analyst is per se evidence. The accused has been given a right under Section 13(2) to challenge the correctness of the report; and if the accused does not exercise this right the report of the Public Analyst constitutes a good piece of evidence in ..... X X X X Extracts X X X X X X X X Extracts X X X X
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