Morlidhar, J. - (1.) THE applicant Darshan Singh has been convicted under Sec. 7/16, Food Adulteration Act, and sentenced to six months' R. I. and a fine of Rs. 1000/- in default further six months' R. I.
(2.) ACCORDING to the prosecution case the applicant was found carrying for sale adulterated milk on 30-4-1978 at 11A.M. The sample taken by the Food Inspector was on analysis by the Public Analyst found to contain 6.9% fat and 8. 3% non-fatty solids as against the prescribed standard of 6% fat and 9% non- fatty solids for buffalo milk. The courts below have rejected the defence of the applicant. The main point convassed, in this revision is that the total of fat and non-fatty solids being 15.3% as against the prescribed total of 15% only and the deficiency being only in non-fatty solids, this should be treated to be a case of permissible marginal error in analysis. Reliance has been placed upon Sultan Shah v. State, 1973 ACC 235, Kadam Singh v. State, 1973 FAC 161 and Rajan Lal v Stale, 1975 AWC 660 in support of the argument. The principle of law emerging from these cases in the light of the Supreme Court cases in M. H. Joshi v. M. U. Shimpi, AIR 1961 SC 1494 and Municipal Committee, Amritsar v. Hazara Singh, 1975 FAJ 297 is that it is only if the court can come to the coclusion that the deficiency found may be the result of a marginal error in analysis that the accused can be given the benefit of the position. Such may be the case where the fat content is very high and the non-fatty solids marginally less. There is also another factor. While in law as it stood prior to 1-4-1975 there was no room for making any allowance for variability of any constituents of an article of food below the prescribed standard for those constituents and the article had to be held to be adulterated if the constituents fell below the prescribed standard notwithstanding that the article analysed as the natural product without any tampering, U. P. Act 34 of 1976 by adding sub-section (i-a) (m) in the definition of adulterated has excepted primary food where the quality or purity of the article has fallen below the prescribed standard or its constituents are present in quantities not within the prescribed limits of invariability solely due to natural causes and beyond the control of human agency, from the definition of adulterated food. The effect of this proviso is that food which was formerly to be treated as adulterated if the constituents were sub-standard is now not to be so provided the variation is solely due to natural causes and beyond the control of human agency. Beyond control of Human Agency in the context in which it appears would mean beyond immediate control and would not exclude a case where it might be possible to say that if proper care had been taken at earlier stages the constituents have been upto the mark. Thus if a cow on account of bad health, bad feed or through a physiological accident produces milk with unusual variation in constituents such as fatless milk or milk with too low fat content or milk with meagre nonfatty solid contents, such milk would, under the amended law, be unadulterated though under the previous law it would have been adulterated, even if we take it that better nutrition. Veterenary care earlier would have rectified the defect that would not make it a case of within control of human agency. One result of this amendment is that one need not necessarily go to the hypothesis of marginal error in the Analysts report and consequential unreliability about the deficiency from the prescribed standard to exonerate the guilt. The same result can be arrived at by finding that this is a case where deficiency has arisen solely due to natural causes and beyond the control of human agency. Ordinarily the cases in which marginal error in analysis could be regarded as cause of shortage would also be the cases in which it may be safe to presume that the shortage is due to natural causes and beyond the control of human agency. The present case where the fat contents are in excess by .9% while the non-fatty solid contents are short by .6% is a case where the benefit of doubt of this nature may well be extened to the accused. Of course the same would not be the case if there were some evidence indicating that the shortage in non-fatty solids is due to human tampering such as that the normal fat contents of this particular animal's milk was correspondingly higher than 6.9%. In the result the revision is allowed. The conviction and sentence of the applicant are set aside and he is acquitted of the charge. He is on bail and he need not surrender. The bail bonds are discharged. --- Revision allowed.;