1. The petitioner, Azad Ahmed was tried in the court of Judicial Magistrate, Lucknow, for an offence under Section 16(1)(a)(i) read with Section 7 of the Prevention of Food Adulteration Act, 1954. The charge against him was that, on 12-4-1974, he had exposed for sale milk, consisting of cow's milk and buffalo's milk mixed together in equal proportion, which, on analysis, did not conform to the prescribed standard and was adulterated. On consideration of the evidence, the learned Magistrate came to the conclusion that the milk sold contained 4.1% fatty solids and 7.4% non-fatty solids, compared to 4.5% fatty solids and 8.5% non-fatty solids prescribed for mixed milk. Accordingly, he convicted the applicant of the offence with which he was charged and sentenced him to undergo R.I, for six months and to pay a fine of Rs. 1000/-, in default, to undergo further R.I. for ten months. On appeal, the learned Sessions Judge, Lucknow, took the view that the standards prescribed for buffalo milk would apply and, so judged, the milk sold should have contained 6.0% fatty solids and 9.0% non-fatty solids as against 4.1% fatty solids and 7.4% non-fatty solids found in it. On this reasoning, he upheld the conviction and the sentence imposed on the applicant by the Magistrate. Hence this revision.
2. The learned Counsel for the petitioner contended that the applicant was prosecuted on the ground that he had not maintained the standards prescribed for mixed milk. But as a matter of fact no standard had been prescribed for such milk on the relevant date, and, as such, the courts below were not right in convicting him. He particularly relied on a decision of the Supreme Court in M. V. Krishnan Nambissan v. State of Kerala : 1966CriLJ1347 .
3. The standards of quality of various articles of food including milk are defined in Appendix 'B' to the rules framed by the Central Government under Section 23 of the Act. Appendix 'B', in so far as relevant, provides:
A. 11.01. Definitions : A.11.01 : Milk is the secretion derived from complete milking of a healthy milch animal. It shall be free from colostrum. Milk of different classes and of different designations shall conform to the standards laid in table below Item A. 11.01.01.
A.ll.01.11 : - Standards for different classes and designations of milk shall be as follows:
--------------------------------------------------------------------------------Class of Milk. Designations. Locality. Minimum per cent.---------------------Milk Milk solidfat. non fat--------------------------------------------------------------------------------Buffalo Milk. Raw, Pasteurised. Uttar Pradesh 6.0 9.0Boiled. Flavouredand sterilised.Cow Milk - do - Uttar Pradesh 3.5 8.5Goat or Sheep Milk - do - Uttar Pradesh 3.5 9.0Standardised or - do - All India 4.5 8.5Mixed MilkRecombined Milk All India 3.0 8.5Toned Milk All India 3.0 8.5Toned Milk Double - do - All India 1.5 9.0Skimmed Milk - do - All India Not more than 8.70.5 per cent.--------------------------------------------------------------------------------NOTE : (i) When milk is offered for sale without any indication of the class, the standards prescribed for buffalo milk shall apply.
A.I 1.02.04 ;- Dahi or Curd means the product obtained from pasteurised or boiled milk by souring, natural or otherwise by a harmless lactic acid or other bacterial culture. Dahi may contain added oane sugar. Dahi shall have the same minimum percentage of milk fat and milk solids non-fat as the milk from which it is prepared.
4. It is true that in its present form Rule A.ll.01.11 prescribes standard of purity for mixed milk, but it was not there on 12-4-1974, when the applicant exposed the milk for sale. It came to occupy the field at a later date. The entry as regards 'mixed milk' found its way into Rule A.ll.01.11. by virtue of notification No. GSR 205 dated 13-2-1974 and came into force from 13-5-1974. It seems that this fact was not brought to the notice of the learned Magistrate. Whatever the reason, it is clear that the learned Magistrate was not justified in relying on the prescribed standard for mixed milk, which was not effective on the relevant date. In appeal, the learned Sessions Judge perhaps noticed this infirmity in the judgment of the learned Magistrate, although he does not say so. But the fact remains that he preferred his own reasoning for upholding the decision of the Magistrate. He referred to Note (i) appended at the end of Rule A.ll.01.11 and observed:
The word 'class' used in this note, in my opinion, will mean only either of the three classes which have been specified in the table produced above the note which gives class of milk in the first column. In column No. 1 meant for class of milk, the rules mentioned buffalo milk, cow milk and goat or sheep milk. Even if the appellant was selling a mixture of cow milk and she-buffalo milk, it has to be said that it was of no class as mentioned in column No. 1 and, therefore, the standard of she-buffalo milk has to be applied. Class mentioned in the note does not mean proportion of milk as has been argued by the learned Counsel for the appellant. This milk, which was a mixture of cow milk and she-buffalo milk, according to the appellant's contention, cannot certainly be said to be of any of the three classes mentioned in column No. 1 of the table given in the Rules (Para A.ll.01.11).
5. These observations are not wholly well conceived. It is true that the word 'class' in the note has reference to the classes of milk specified in column I of the table, but what the note actually means is that where the milk is offered for sale, without any indication, whether it is derived from buffalo, cow, sheep or goat, the standard prescribed for buffalo milk shall apply. In the present case it was own case of the prosecution that the applicant had indicated the milk sold to be a mixture of cow and buffalo milk. Accordingly, the rule provided in the Note would not apply. The view to the contrary expressed by the learned Sessions Judge is clearly erroneous. The true position is that, no standard with regard to the contents of mixed milk was prescribed on the relevant date. If that be so, as it really is, then it necessarily follows that the applicant has not committed the offence with which he was charged.
6. In the case of M. V Krishnan Nambissan 1966 Cri LJ 1347 (SC) the charge against the accused was that he had exposed for sale 'skimmed thick butter milk', which, on analysis, was found to be adulterated. The trial Magistrate acquitted the accused holding that no standard of quality was prescribed for butter milk. On appeal, the High Court took the view that the standard for milk had been fixed by the rules and that the same standard was applicable to curd and that as butter milk was in essence curd from which butter had been extracted, the butter milk should contain the same quantity of non-fatty solids as the curd. On this reasoning the High Court held that, as the sample showed only 6.4% of non-fatty solid contents while it should have contained 8.5% of it, the accused was guilty of the offence under Section 7/16 of the Prevention of Food Adulteration Act and sentenced him to pay a fine of Rs. 100/- and in default to suffer simple imprisonment for one month. The accused appealed to the Supreme Court. The Supreme Court set aside the order of the High Court and acquitted the accused on the ground that no standard in regard to the contents of 'butter milk' was prescribed. Thus, this case supports the view expressed by me above.
7. The learned Counsel for the State contended that even though no standard for mixed milk was prescribed at the relevant time, the milk sold could be judged on the basis of the standards prescribed for cow's milk and buffalo's milk, and, so judged, it fell below the standard. He said that after all the milk sold was nothing but the cow's milk and the buffalo's milk mixed together in equal proportion and it was not difficult to determine the standards of purity that it should satisfy, He relied on a decision of this Court in Prem Dass v. State of U.P. : AIR1961All590 which supports his argument.
8. In Krishnan Nambissan's case 1966 Cri LJ 1347 (SC) (supra) a somewhat similar argument was raised. The learned Counsel for the State contended that a fair reading of the various milk products in Appendix 'B' leads to an irresistible conclusion that for the butter milk the same standard of solids non-fat prescribed for curds would apply, it was said that the butter milk was nothing more than curd, from which fat has been removed, and, therefore, there was no reason why, apart from fat, the other contents should be different from those found in the milk. The Supreme Court repelled the argument observing at p. 1349 of Cri LJ:
It will be seen from the definitions of the various products in Appendix B to the rules, which we have already extracted that wherever the rule-making authority intended to prescribe a specific standard for the contents of a product, it definitely states so. The standards of solids-non-fat are fixed for the milk of cow, buffalo, goat or sheep. Though standards are fixed for the said milk products, in defining 'skimmed Milk', 'deshi (cooking) butter' and 'skimmed milk dahi or curd' the standard of quality is prescribed with reference to other products. But when we come to buttermilk, no standard for its contents either specifically or with reference to other items is prescribed. A comparative study of the said items leaves no room for doubt that the rule making authority, for reasons which, we think, are obvious, has not thought fit or feasible to prescribe any such standard in regard to the contents of butter milk. We cannot by inference read something hi the definition of butter-milk which is not there. The reason for this omission is presumably due to the fact that it is not possible to maintain in butter milk the same percentage of solids-non-fat content as is found is curds or milk, for water will be added in the process of making butter milk owing to the fact that butter grains in the churn are washed with cold water which will run off into the butter-milk. Anyhow, we would prefer to rest our judgment on the absence of fixation of any standard in respect of butter-milk rather than on the process of conversion of curds into butter-milk.
9. On these observations, it Is clear that if no standard has been prescribed, the prosecution cannot be sustained. It is not permissible- by inference to read In the rules something which is not there. Accordingly, the argument of the learned Counsel for the State cannot be accepted and the principle of law laid down in the case of Prem Dass can no longer be treated to be a good law.
10. In the result, this revision petition succeeds. It is allowed. The conviction and sentence imposed on the applicant are set aside. The fine, if already paid, shall be refunded.