1. This is an appeal by the Nagpur Corporation through its Food Inspector against the acquittal of the Respondent 1 who was accused of an offence punishable under Section 16(1)(a)(i) read with Section 7(i) of the Prevention of the Food Adulteration Act, 1954 (for short, 'the Act').
2. Briefly the prosecution case against the accused was that he was a milk vendor who on 9-7-1980 at about 9.30 a. m. came with one can of milk and two measures in Govind Dairy. The Food Inspector of the Nagpur Corporation Shri Bare was standing 'near the said dairy situated on Maharajbag Road, Nagpur. On being asked the accused told the Inspector that he was carrying the milk on 'Chandi' to the dairy. The can with the accused contained 12 liters of cows milk. The Food Inspector called one pancha Manohar Pande and took t he sample of the cow's milk in his presence as required by the provisions of the Act. The accused had told that he was the owner of the milk in the can. After complying with the necessary formalities prescribed under the Act the Food Inspector sent one sealed sample bottle and original form No. 7 in a sealed packet to the Public Analyst of the Nagpur Corporation. He also sent a copy of form No. 7 and forwarding form in a sealed packet to the Public Analyst. Similarly he sent two sealed sample bottles, two copies of form No, 7 and paper of forwarding form in a sealed cover to Local Health Authority. He again sent two copies of form No. 7 and forwarding form in a sealed packet to the Local Health Authority. On 1-8-1980 he received the report from the Public Analyst in which the Public Analyst had given an information that the sample of cow's milk was found adulterated as it contained 14.4% of added water.
3. The Food Inspector thereafter obtained t he consent for prosecution against the accused from the Joint Commissioner, Food Adulteration, Nagpur and filed a complaint before the learned Judicial Magistrate Nagpur on 1-10-1980. The learned Judicial Magistrate, on the basis of the above facts framed the charge-sheet (Exh. 36) against the accused for an offence of storing and selling adulterated milk containing 14.4% of added water which was an offence punishable under Section 16(1)(a)(i) read with Section 7(i) of the Act. The accused pleaded not guilty to the offence. The prosecution led evidence by examining three witnesses including the Food Inspector Shri Bare to prove the charge against the accused. The accused, however, did not examine any witness in defence. The Public Analyst was not examined during the trial.
4. One of the contentions raised on behalf of the accused before the learned trial Magistrate was that the report of the Public Analyst was not correct. According to the learned Counsel appearing for the accused the percentage of fat found in the instant case was 6% which was much more than the prescribed standard of 3.5% for fat in the cow's milk. However, according to him, the percentage of solid-not-fat was 7.3 per cent which was only marginally less as compared to the prescribed standard of 8.5% for the solid-not-fat in the cow's milk. It was the contention on behalf of the defence that if the sample of milk conformed to the standard of the content of fat it must also conform to the standard of solid-not-fat and if it did not it would mean that the report of the Public Analyst was not correct. The learned Counsel for the accused relied upon certain decision of the Allahabad High Court and in particular the decision of its Division Bench in Kadamsingh v. State, 1978 1 FAC 160, Accepting the contention raised on behalf of the accused the learned Magistrate held that the fat percentage found was much more than the prescribed standard and that the percentage of solid-not-fat was only marginally less. The learned Magistrate also found that the total solids were 13.37% which were more than the standard of total solids present in the cow's milk. The learned Magistrate relying upon the aforesaid decision of the Division Bench '61 the Allahabad High Court held that the sample of the cow's milk in the instant case cannot be said to be adulterated and that the accused is entitled to benefit of doubt. He, therefore, acquitted the accused of the offence punishable under Section 16( l)(a)(i) read with Section 7( 1) of the Act. Being aggrieved the Nagpur Corporation through its Food Inspector has preferred the instant appeal in this Court.
5. The principal contention raised on behalf of the Nagpur Corporation by its learned Counsel is that the standards for fat and solid-not-fat (SNF) in cow's milk are prescribed separately in Para A. 11.01.11 of Appendix'B' which read with Rule 5 of the Prevention of Food Adulteration Rules, 1955 (for short, 'the Rules') prescribe the standards of the quality of the various articles of food. It may be stated that for cow's milk the percentage of fat prescribed is 3.5 for the State of Maharashtra and the percentage of SNF prescribed for the State of Maharashtra is 8.5%. The submission is that the sample of cow's milk must satisfy the prescribed standards for both fat as well as SNF, and if the percentage of any one of them is found below the aforesaid prescribed standard the sample would be treated as adulterated within the meaning of Section 2(ia)(m) of the definition of the word 'adulterated' given in the Act and. therefore, the accused would be guilty of an offence of storing and selling the adulterated milk punishable under Section 16(1)(a)(i) read with Section 7(i) of the Act. His contention is that since the standards are prescribed by the rules there is no discretion in the Court to acquit the accused on the ground that there is only marginal or border line variation of the prescribed standards under the Act. According to him, therefore, the learned trial Court was in error in acquitting the accused on the ground that there was a marginal variation in the percentage of SNF which was 7.3% i.e. just marginally lower than the prescribed percentage of 8,5 for the same. In support of his contention the learned Counsel for the appellant has mainly relied upon the Full Bench decision of the three High Courts, viz., Prem Das v. State : AIR1961All590 State of Kerala v. Parameswaran, and State of Punjab v. Teja Singh (Punj & Har High Court Full Bench reported in ). Further, according to him, the view expressed in these decisions and in particular the decision of the Full Bench of the Kerala High Court has been approved by the Supreme Court in Municipal Committee, Amritsar v. Hazara Singh, 1975 Cri LJ 928.
6. On the other hand it is contended on behalf of the accused that if the percentage of fat in the sample of cow's milk was much higher than the percentage prescribed for the same, the percentage of SNF therein could not go below the prescribed standard and, therefore, the report of the Public Analyst in the instant case was not correct. The further submission on behalf of the accused is that in some contingencies depending upon certain factors such as feet of the cow, the breed of the cow and the seasons, the composition of milk can be affected and the percentage of SNF can go below the prescribed standard. In support of his aforesaid the learned Counsel for the accused has principally relied upon a judgment of the Division Bench of the Allahabad High Court in Kadamsingh and Puran v. State of U. P. (1978) 1 FAC 160. He has also relied upon other subsequent decisions of the Allahabad High Court reproduced in Para 12 of the judgment of the Trial Court which have followed the aforesaid Division Bench judgment of the said Court and also a decision of the Delhi High Court in Municipal Corporation of Delhi v. Om Prakash, . He has further relied upon certain standard text-books upon the subject of milk and milk products and chemical analysis of food written by standard authors.
7. Since the report of the Public Analyst was under challenge and since he was not examined by the learned trial Court, in the interest of justice I examined him in this Court as C. W. No. 1 (Exh. No. 45). After the Public Analyst was examined, it is the further contention on behalf of the accused that the percentage of added water in the milk could only be scientifically found out by application of the freezing point test which as admitted by the Public Analyst in his evidence in this Court was not conducted in the instant case. In support of his contention reliance is placed by him upon the decision of the Madras High Court in Public Prosecutor v. K. Rayavaram Co-op. Milk Supply Society Ltd. : AIR1964Mad301 and the decision of the Gujarat High Court in the case of State of Gujarat v. Bhagubhai Ramjibhai : (1982)2GLR624 .
8. In considering the rival contentions in the instant case it must be borne in mind that the accused is charged with an offence under Section 16(1)(a)(i) read with Section 7(i) of the Act. Section 16(1)(a)(i) relates to penalty for adulteration within the meaning of Sub-clause (m) of Clause (ia) of Section 2 of the Act i.e. the definition of the word 'adulterated' in which it is provided that 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 it injurious to health then the said article of food is said to be adulterated within the meaning of the said sub-clause provided that where the quality or purity of the article, being primary food, has fallen below the prescribed standards or its constituents are present in quantities not within the prescribed limits of variability, in either case, solely due to natural causes and beyond the control of human agency, then, such article shall not be deemed to be adulterated within the meaning of the aforesaid sub-clause. The expression 'primary food' is defined in Section 2(xiia) of the Act to mean 'any article of food, being a produce of agriculture or horticulture in its natural form.' It is clear from the proviso that if the article of ' food is a primary food as defined in the Act then if the quality or purity of-the primary food falls below the prescribed standards or if its constituents are present in quantities not within the prescribed limits of variability solely due to natural causes and beyond the control or human agency, then, such articles shall not be deemed to be adulterated within the meaning of Sub-clause (m). In other words the rigidity of the prescribed standards is dispensed with in certain cases under the aforesaid proviso. The question, therefore, necessary to be considered is whether the cow's milk is 'primary food' within the definition of the said expression given in Section 2(xiia) of the Act. The crucial question for consideration is whether the cow's milk can be said to be 'a produce of agriculture in its natural form'. It is, therefore, necessary to consider the meaning of the word 'agriculture' occurring in the definition of the expression 'primary food' given under the Act.
9. In Webster's International Dictionary the word 'agriculture' is defined as follows 'The art of science of cultivating the ground, including the harvesting of crops, and the rearing and management of livestock, tillage, husbandry, farming'. In Mitra's Legal and Commercial Dictionary the term 'agriculture' is explained thus : 'Agriculture includes husbandry, dairy farming, pisciculture and poultry farming.'
P. G. Osborn in the 5th edition of his book ''Concise Law Dictionary' has interpreted the term' Agriculture as follows : 'Agriculture' includes horticulture, food growing, seed growing, dairy farming and livestock breeding and keeping (Agriculture Holdings Act, 1949, Section 94).
In Stroud's judicial Dictionary, Vol. 1, the meaning of the word 'agriculture' given is as follows : '(1) In the Board of Agriculture Act. 1889 (C. 30), Section 12, 'agriculture' included 'horticulture''; in the Small Holdings Act 1892 (C. 31), Section 20, ' 'agriculture' and 'cultivation' shall include horticulture, and the use of land for any purpose of husbandry, inclusive of the keeping or breeding of livestock, poultry or bees, and the growth of fruit, vegetables, and the like'.
Ayyar's Judicial Dictionary, 9th Edn. 'Agriculture is the art or science of cultivating the ground, especially in the fields including the preparation of the soil, the planting of the seeds, the raising and harvesting of crops, and the rearing feeding and management of livestock; tillage; husbandry and farming.
Bouvier's Law Dictionary, Vol 1 3rd Edn, : 'Agriculture Produce' : that which is the direct result of husbandry and the cultivation of the soil. The product in its natural unmanufactured condition.
In Encyclopaedia Britanica the subject of diary farming is treated as agriculture.
10. The Supreme Court had an occasion to consider the meaning of the word 'agriculture' occurring in Section 2 of the Income-tax Act, 1922 in the case of Commr. of Income-tax v. Benoy Kumar Saha Roy : 32ITR466(SC) . The Supreme Court has observed in the said decision that although the word 'agriculture' in its root sense means ager, a field and culture, cultivation, cultivation of field which of course implies expenditure of human skill and labour upon land. Relying on the observations of Lord Koleridge in R. v. Peters, (1886) 16 QBD 636 and Cozens Hardy, M. R. in Camdent (Marquis) v. Inland Revenue Commr. (1914) I KB 641, the Supreme Court further observed : The term has, however, acquired a wider significance and that is to be found in the various dictionary meanings ascribed to it.' However, the Supreme Court cautioned that in adopting the narrower or the wider sense of the term 'agriculture' in a particular case it depends not only upon the provisions of the various statutes in which the said term occurs but also upon the facts and circumstances of each case.
11. In considering the meaning of the word 'agriculture' occurring in the definition of the word 'primary food' the question would be whether it should be read in a narrow sense i.e. to merely the cultivation work done upon the land or to all other activities which draw sustenance from the land. Looking to the scheme of the Act and in particular the definition of the word 'adulterated' it is clear from the proviso to Section 2(ia)(m) that it is not the intention of the Act to bring within the mischief the articles of primary food in which the variation in the prescribed standard is due to natural causes and beyond the control of human agency. The standard of various constituents in cow's milk is bound to vary depending upon their feed, breed, seasons etc. It cannot be disputed that the cows draw sustenance from the land. If it is found that the standard has fallen because of the above reasons the aforesaid proviso makes an exception of the same from the definition of the word 'adulterated' given in the Act. It is. therefore, clear that the word 'primary food' in the Act needs to be interpreted in a wider sense in which case the words 'produce of agriculture' would take in not merely that which grows on land but also draws sustenance from the land, viz., the cattle including cows.
12. The second requisite of the definition of the expression 'primary food' is that the produce of agriculture or horticulture must be in 'natural form'. It cannot be doubted that the cow's milk which is drawn from the secretions of a cow reared on that which grows on the land must mean that it is in its natural form i.e. no change is brought out by intervention of any other agency. In my view the cow's milk, therefore, satisfies the requirement of the definition of the expression 'primary food' given in Section 2(xiia) of the Act. I am supported in this view by the decision of the Kerala High Court in State of Kerala v. A. P. Khader, which has been approved and followed by the Division Bench of the Gujarat High Court in Natvarlal C. Shah, v. Prabhatbhai Punjabhai (1980) 1 FAC 489. However, without any discussion the learned Single Judge of the Allahabad High Court in Deputy Lal v. State of U. P., : 83CWN108 has taken a contrary view holding that the milk is not a primary food within the definition of 'primary food' given in the Act.
13. If the cow's milk is primary food within the definition of the said expression given in the Act then according to the proviso to Sub-clause (m) of Section 2(ia) it is open to the Court to consider the question whether the quality or purity of the milk has fallen below the prescribed standard solely due to natural causes and beyond the control of human agency. In the case of primary food the rigidity of the standards prescribed under the Act would not be applicable as canvassed on behalf of the appellant relying upon the decisions cited supra. The said decisions are, therefore, of no assistance to him in the case of articles of primary food. I, therefore, need not consider the larger question whether the standards should be made rigidly applicable in the case of every article of food so that if the quality or purity falls below the prescribed standards of any of its constituents it would be deemed to be adulterated within the meaning of the said sub-clause.
14. Proceeding then to the question whether there could be variations in the composition of the milk by reason of the factors such as feed of the cow, the breed of the cow, seasonal variations and the hours of milking etc. The same has been amply proved through the various standard text books although the Public Analyst in his deposition in this Court has stated that the SNF is not affected by any of the factors such as the feed or the breed of the cow, seasonal variations and the hours of milking. He, however, admitted that the book 'Milk and Milk products' written by Eckles, Combs and Macy, the book on the 'Chemical Analysis of Foods and Food products by Morris B. Jacobs, and Pearson's 'Chemical Analysis of Foods' are the standard books on the subject.
15. In milk and milk products by Eckles, Combs and Macy, 4th Edn. At Page 22 the chemical composition of milk given is as follows:
Constituents Percentage --------------- ------------Water 87.2 Dry Matters 12.75 Fat 3.80 Protein 3.50 Sugar 4.80 Ash 0.65 -------- 100.00--------
In Chapter III of the said book the author has considered the factors affecting the composition of the milk which include all the factors referred to above. At Page 61 the author has discussed in particular seasonal variations in SNF. He has stated that the SNF follows the same general seasonal changes as does the fat.
16. My attention is pertinently invited to the Chapter relating to dairy products in Pearson's Chemical Analysis of Foods by Haron Egan, Ronald S. Kirk and Ronald Sawyer. In the said Chapter at page 432 while considering the factors affecting the composition of milk it has been observed in relation to SNF that the mean value for the same is high in October i.e. 8.7% falls to a minimum of 8.5% in March-April, then rises in May and June to 8.65% to 8.7% but falls slightly in July August (Hardin and Royal 1974). According to the said authority the said changes are a reflection of the effects of other factors, particularly the seasonal variations in feeding and the stage of lactation. According to it the seasonal changes vary also according to the locality. Again at page 443 under the heading 'Freezing point of Milk' which is a scientific test adopted for determination of added water in milk, it is observed that cows may on occasions for a variety of reasons produce milk with an unnaturally low SNF. Therefore, the determination of SNF will not provide positive evidence for the presence of extraneous water. Similarly in the book 'The Chemical Analysis of Food and Food Products' by Morris B. Jacobs, 3rd edition, the author has pointed out the variations in the composition of milk attributable to the various factors referred to above.
17. However, the learned Counsel for the appellant has relied upon 'Food Chemistry' by L. H. Meyer to show that the determination of the SNF is frequently used as an index of watering. He has taken me through the Sages 300 and 302 of the said book. At page 00 it is observed that the total solids of milk are fairly constant and that that is a useful determination in indicating some types of adulteration. It is further observed that the SNF is calculated by subtracting the amount of crude fat from the total solids which can be determined by measuring the specific gravity and by applying the formula referred to therein. It is also observed that since the fat shows, wider fluctuation than the other components the above value of SNF has slightly more constancy than the total solids. At page 302 under the heading 'Checks For Purity' it is observed even by the said author that the composition of milk is variable and it is difficult to detect watering, skimming or the addition of skimmed milk. It is further observed that the addition of water decreases the percentage of all components. Since the fat shows greatest variation in milk, according to the said author consequently the determination of the SNF is frequently used as an index of watering which observations are relied upon on behalf of the appellant. The range of SNF given at page 302 is 7.5% to 10.6% and according to the said author if the value for a sample of milk is close to the bottom of this range, it would surely be suspicious. The author also admits that the composition of milk is variable which would mean that the variation would depend upon certain factors. He also admits that since the composition of milk is variable it would be difficult to detect watering in the milk. However, the range of SNF which is given shows that the minimum percentage can be up to 7.5%. However, if it goes to the said minimum according to him, the analyst should be suspicious because according to him the SNF is frequently used as an index of watering. However, as in Pearson's Chemical Analysis of Foods, Page 443, he also refers to the freezing point test as the most reliable test and scientific method for determination of presence of added water in the milk. Therefore, only because SNF is low by itself it would not mean that there is added water in milk unless the percentage of added water is determined by adopting the scientific test, viz., the freezing point test.
18. In Kadamsing and Puran v. State of U. P. (1978) 1 FAC 160 the Division Bench of the Allahabad High Court also held that the composition of milk can vary depending upon the various factors stated above which view has been consistently followed by subsequent decisions of the said Court. It is further observed in the above judgment that ordinarily it would not be possible to take out SNF contents without affecting the fat contents in it. It is also observed that when milk is stored, the fat contents come to the top as the milk cools and if the sample is taken from the top portion without stirring the milk thoroughly the sample taken would be very high in fat content and would not give a correct picture of the quality of the milk. It is also observed that if there are germs formed in milk they destroy the SNF without affecting the milk fat. It us thus clear that various factors bring j about the changes in the composition of the milk as a result of which it is possible that the SNF can go down.
19. Even otherwise it is necessary to carry out the freezing point test to determine scientifically the percentage of added water in the milk so that it can be said to be adulterated by addition of water. It would also then show whether the percentage of SNF which is found to be low is correct or not. In the absence of such a test it cannot be said that the report of the Public Analyst is correct on the basis of which due to percentage of SNF below the prescribed standard although the fat percentage is very high the accused is sought to be convicted. The importance of the freezing point test is emphasised and the said test is accepted by the Courts as the fair and safe method of determining the added water in milk (see Public Prosecutor v. K. Rayavaram Co-op. Milk Supply Society Ltd. (1964) 2 MU 53 : 1964 (2) Cri U 39 and State of Gujarat v. Bhagubhai Ramjibhai : (1982)2GLR624 . The Public Analyst has determined the percentage of added water as 14.4 without adopting the aforesaid freezing point test but has determined the same in a rough and ready manner which cannot be accepted as the correct determination of the percentage of added water in the absence of the aforesaid test. Since there is no charge against the accused of selling the milk with added water under Rule 44 of the Rules there is no question of any conviction in regard to the breach of the said rule s such. The said question has to be considered, however, only from the point of view of adulteration in the sense as covered by Section 2(ia)(m) of the Act, Since the milk has been held to be a primary food the variations in SNF which appear to be due to natural causes and beyond the control of human agency as discussed above, the sample of milk in the instant case cannot be said to be adulterated within the meaning of the said sub-clause. Moreover, if the total solids are constant as given in the book by Meyers relied upon on behalf of the appellant it is not shown how the total solids are more in the instant case than the prescribed percentage of 12.75 which would also show that the report of the Public Analyst is not proper and correct. In this view of the matter the contentions raised on behalf of the appellant are liable to be rejected.
20. In the result, the appeal fails and is dismissed.