J.C.MISHRA, J. - (1.) THIS revision is directed against the judgment and order dated 25 -9 -84 passed by IV Additional Ses ­sions Judge, Pilibhit dismissing the appeal preferred against the judgment and order dated 27 -7 -1984 passed by Special Judicial Magistrate (Economic Offences), Pilibhit convicting the revisionist under Section 7/16 Prevention of Food Adulteration Act and sentencing him to undergo rigorous imprisonment for six months and to fine of Rs. 1,000/ - and further convicting him under Section 7/16 of Prevention of Food Adulteration Act read with Rule 50 of Prevention of Food Adulteration Rules and sentencing him to rigorous of 3 months and fine Rs. 500/ -.
(2.) THE learned Counsel for the revisionist contended that the alleged of ­fence was committed on 25 -5 -82 and after such a long time it would not be desirable to send the accused to jail. He contended that the Courts below committed illegality in holding that the sample of cow milk was adulterated as it contained 14.3% solids which was more than the prescribed stand ­ard. The learned Counsel contended that fatty contents were 6.8% i.e. 3.3% more than the prescribed standard and deficien ­cy was with regard to non fatty solids which was marginal. He contended that as the total solids were more than the prescribed standard the only inference that will be drawn is that the Public Analyst did not take necessary precautions or the cow was not properly fed. The view taken by different Benches of Allahabad High Court right from the enactment of Prevention of Food Adulteration Act has been varying and unfortunately this conflict is still continu ­ing. It would be pertinent to refer to the available decisions of at only of this Court but also of larger Benches of other High Courts and lastly of the Apex Court. Before considering the views expressed in the pronouncement in regard to the con ­troversy whether milk marginally deficient in non -fatty solids is 'adulterated' despite the fatty solids being more than the requi ­site percentage it would be convenient to refer to the relevant provisions of the Act. The word "adulterated" is defined in Prevention of Food Adulteration Act, 1954 in Section 2(I -a). An article of food shall be deemed to be 'adulterated' if it is one of the categories mentioned in clause (a) to (m). Under clause (m) an article is adulterated 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: 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 this sub -clause.
(3.) SUB -clause (1) provides 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, which renders it injurious to health such article is adulterated. 'food' within the meaning of Section 2(ii) (v) means any article used as food or drink for human consumption other than drugs and water and includes - (a) any article which ordinarily enters into, or is used in the composition or preparation of, human food, (b) any flavouring matter or condiments, and (c) any other article which the Central Government may, having regard to its use, na ­ture, substance or quality, declare, by notifica ­tion in the official Gazette, as food for the pur ­poses of this Act. 'Primary food' within the meaning of sub -clause (xii -a) means any article of food, being a produce of agriculture or horticulture in its natural form. Milk' cannot be said to be 'primary food' as it is neither produce of agriculture nor of horticulture. It is no doubt 'food' as it ordinarily enters the body and it is used in the composition and preparation of common food. Rule 5 of the Food Adulteration Rules, 1955 contained in Part III provides that the standards or quality of the various articles of food specified in Appendix B to these Rules areas defined in that appendix. A -11 -01.11 prescribes standard for different classes and designations of milk. According to the chart the minimum milk fat for buffalo milk prescribed is 6.0% while minimum standard of milk solids non fat is 9.0%. For cow milk the standard prescribed is 3.5% for milk fat and 3.5% for milk solids non fat. Thus the total solids fatty and non -fatty is 15% for buffalo milk and 12% for cow milk. ;