G. D. Dube, J. - (1.) THIS appeal has been preferred against the judgment and order of special Judicial Magistrate Allahabad, acquitting the appellant of the offence punishable under Section 7 (1)/16 (a) (i), Prevention of Food Adulteration Act (1954).
(2.) THE facts are very brief. A sample of milk was taken by the appellant. On analysis by public Analyst the sample was found to contain 6.5 per cent contents of Milk fat and 7.6 per cent of non-fat milk solid. THE trial court held that the deficiency in the milk fat was 0.9 per cent only. This could be on account of error in the analysis. Hence a benefit of doubt on above solitary ground was given to the respondent about this error and he was acquitted for the charges levelled against him. No other aspect of evidence was discussed. Accused-respondent has been served personally but has not appeared. It has been argued by the learned counsel for the appellant that there was no scope for any conclusion of error in the analysis unless there was material to show that there was an error. It was urged that the whole conclusion of the lower court was based on surmise. My attention was drawn to Municipal Committee Amritsar v. Hazara Singh, 1975 ACC 193. In this case the milk vendor was prosecuted for alleged adulteration. Hereto there was a short fall in the minimal percentage of milk solid fat by the standard prescribed under the Prevention of Food Adulteration Rules. The accused had pleaded that there was a marginal error. The learned Magistrate has not accepted this plea and had convicted him. On appeal the learned Sessions Judge had observed that the minor deficiency in the non-fat solid was on account of permissible error and acquitted the accused. An appeal preferred against such order of acquittal had been rejected by a Division Bench of the High Court in limine. The Municipal Committee had filed an appeal before the Supreme Court. This appeal was rejected. However, there is an observation of the Hon'ble Supreme Court that, "Obviously, the Sessions Judge had concluded that a minor error in the chemical analysis might have occurred. He was perhaps not right insaying so". The Hon'ble Supreme Court had however, rejected the appeal saying that standard 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. It was also observed that disadvantage of resulting unpredictability, uncertainty and impossibility of arriving at fair and consistent decisions are great.
(3.) IN the present case fat contents was found to be 6.5 per cent. It was 2 per cent higher than the minimum standard prescribed under the rules. The minimum standard for non faty solids was 8.5 per cent whereas in the sample milk it was found to be 7.6 per cent. Thus, there was a deficiency of .9 per cent only. The public analyst has wrongly reported that the deficiency was 13 per cent. This appeal is coming after 12 years. The deficiency in the milk fats was only .9 per cent. Hence 1 do not find it advisable in the interest of justice to allow this appeal and remand the case, which would be obvious for fresh trial The case law cited by the learned counsel for the appellant does not help him much.;