- (1.) THIS State appeal by grant of special leave is directed against the judgment, dated February 14, 1979, of learned Sessions Judge, Tonk.
(2.) THE prosecution story in nut-shell is that on November, 27, 1976, PW. 1 Kutubuddin, the Food Inspector, saw the accused-respondent carrying milk for sale. After having disclosed his identity, he checked the accused-res-pondent. THE Food Inspector then served him a notice and purchased 660 ml. of milk for Rs, 1/12 paise. THE milk was divided into three parts. Each part was then filled in a dry and clean bottle. After having added 18 drops of formaline to each of the three bottles containing milk in the presence of the accused-respondent, the three bottles were corked and sealed. A memorandum, containing the details of the proceeding conducted by the Food Inspector, was prepared and the same was marked Ex. P/4. It bears the signatures of the Food Inspector as also of the two attesting witnesses, Devkinandan and Azizuddin. It also bears the signature of the accused respondent Ganpat. One of the sample bottles was given to the accused-respondent, and the other was sent to the Public Analyt, Jaipur, along with the specimen of the seal impression. THE form containing specimen seal in Ex. P/4 was also sent. THE third bottle was retained by the Food Inspector. THE sealed bottle was received by the Public Analyst on 1st December, 1976. THE Public Analyst received the bottle duly sealed and the seal was noticed by him to be intact, as shown in the memorandum. An endorsement to that effect was made by the Public Analyst. He analysed the contents of the bottle and declared the result as under: - Fat contents 6. 4% Solids non fat 7. 55% In the opinion of the Public Analyst the sample of the milk was adulterated as it contained about 11% of added water. The Food Inspector filed a complaint in the Court of the Chief Judicial Magistrate, Tonk, against the accused-respondent for prosecution under sec. 7/16, Prevention of Food Adulteration Act, 1955 (hereinafter referred to as "the Act" ). The accused respondent filed an application under sec. 13 (2) of the Act on April 23, 1977, in pursuance of which the bottle was seen by the learned Magistrate and he after satisfying himself that it was duly sealed, sent it for analysis to the Director of the Central Food Laboratory, Calcutta, along with the specimen signatures. The Director, Central Food Laboratory, analysed the milk and found the same to be adulterated. He found that the milk had fat contents to the extent of 5. 6% and the milk solids non-fat was 7. 2%. He also found that the formaline was present. The accused respondent denied his complicity in the offence. The prosecution in support of its case examined P. W. 1 Kutubuddin, P. W. 2 Devkinandan and P. W. 3 Azizuddin. The accused, in his statement recorded under sec. 313 Cr. P. C. stated that he was not a milk-vendor. He, however, admitted that the sample of milk was taken from him by the Food Inspector. He further pleaded that he was carrying the milk for some other person. In support of his plea he examined D. W. 1 Anandilal. The trial court relying upon the testimony of the Food Inspector, got support of the prosecution case from the statements of the two witnesses, Devkinandan and Azizuddin, and held that the accused was carrying milk for sale and the same was found adulterated. The court further held that the accused was selling milk without licence. The learned Magistrate found the accused guilty of the offence, under sec. 7/16 of the Act and sentenced him to undergo three months' rigorous imprisonment and to pay a fine of Rs. 500/ -. He was also convicted for violation of rule 15 of the Food Adulteration Rules, 1955. Dissatisfied with the above judgment, the accused-respondent preferred an appeal in the court of learned Sessions Judge, Tonk. The Sessions Judge, placing reliance on Ramlal vs. State (1), partly accepted the appeal, acquitted the accused of the charge for selling adualterated milk on the ground that in both the reports, that is of the Public Analyst and that of the Director, Central Food Laboratory, the total of the milk fat and solid non fat were more than 12% and as such it could not be said to be adulterated milk. He however, maintained the conviction and sentence awarded to the accused for violation of rule 15 read with sec. 16 of the Act Feeling aggrieved by the judgment of the Sessions Judge, the State Government has come up in appeal before this Court. The learned Public Prosecutor, appearing on behalf of the State, has urged that the Sessions Judge comitted a grave error in law in placing reliance on the case reported in Ramlal vs. State (Supra), which is contrary to the Division Bench case of this Court. He further urged that the learned Sessions Judge instead of placing reliance on a decision of the Punjab High Court ought to have cared to look to the decision of this Court He also urged that a close perusal of both the reports show that the sample of the milk taken from the accused did not conform to the requirement of the prescribed standard as far as solid non-fat content was concenred and as such the learned Judge had no alternative except to treat the milk as adulterated. In support of this contention he placed reliance on the State vs. Badri (2), State of Kerala vs. Vasudevan Nair (3) and Municipal Committee Amritsar vs. Hazara Singh (4 ). The learned counsel appearing on behalf of the accused-respondent, placed reliance on a Single Bench decision of this Court reported in Paras Ram vs. The State of Rajasthan (5), and supported the judgment of the lower appellate court. The short point which falls to be considered in this case is that if the defeciency in the milk solids other than fat can be made up by excess quantity of milk fat. Prima facie, the solid contents of the milk are below the prescribed standard. In the case in hand the report of the Public Analyst stands superseded by the certificate of the Director, Central Food Laboratory, Calcutta, who found the milk fat 5. 6% and milk solids non-fat 7. 2%. Thus the milk was not in accordance with the standard fixed inasmuch as the milk solids other than fat were defecient by 1. 3%. Hence the sample was clearly adulterated. The case relied upon by the learned Sessions Judge was based on the interpretation of a Supreme Court case Malwa Co-operative Milk Union Ltd. Indore vs. Biharilal (6 ). This case came up for interpretation before their Lord-ships of the Supreme Court. Krishna Iyer J , speaking for the Court observed that the point which arose in the Malwa Mills case was whether the High Court was justified in setting aside an acquittal in revision when the jurisdiction was invoked by a rival trader, the alleged adulteration having been so negligible that the State had withdrawn the prosecution resulting in acquittal. The court observed that it would not be fair to read into that judgment something which is not there. The law of food adulteration as also the right approach have been if we may say so with respect, set out correctly there. Judicial propriety, dignity and decorum demand that being the highest judicial tribunal in the country even obiter dictum of the Supreme Court should be accepted as binding. But all that does not mean that every statement contained in a judgment of that court would be attracted by Article 141 of the Constitution. Statements on matters other than law have no binding force. After carefully analysing the case Krishna Iyer J. observed as under: - "the 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. The disadvantages of the resulting unpre-dicatability, uncertainty and impossibility of arriving at fair and consistent decisions are great. "
(3.) THE Act authorises the Central Government to constitute a committee to advise the Central Government and the State Government on matter arising out of the administration of the Act and to carry out the other functions assigned to it under the Act. Under sec. 23 (i) (b) of the Act the Central Government may after consultation with the committee and subject to the conditions of previous publication make rules to define the standards of quality for, and fixing the limits of variability permissible in respect of any article of food. It is in exercise of this power that in Appendix I clause A. ll. Ol. ll of the P. F. A. rules, 1965, the standard of minimum percentage of milk fat and milk solid non-fat for cow's milk in various parts of the country his been prescribed. As per this minimum percentage of the milk fat and milk solid non fat for cow's milk in Rajasthan is 3. 5 and 8. 5 respectively. Any person who sells milk which is not of this quality contiavenes the provisions of the Act and thereby he commits an offence. If the solids other than fat or fats are less than the prescribed minimum, the sample of the milk would be taken to be adulterated within the meaning of sec. 2 (i) (l) of the Act, regardless of the fact that the total percentage of solids other than fat and fats equal or exceed the total percentage of the two ingredients put together. When the standard of quality or purity has been prescribed under a statute for an article of food, it is not within the scope and province of the court of law to question the reasonableness or correctness of the standard so prescribed. THE Act has not made a distinction between the cases on the basis of the degree of adulteration. THE offence is punishable whether the adul-teration is greater or small. It appears that the learned Government Advocate appearing before the Single Bench in Paras Ram vs. The State of Rajasthan (Supra) did not care to submit to the court the following important cases, State vs. Badri (Supra) which is a Division Bench case, Champalal vs. State of Rajasthan (7), a Full Bench decision of the Kerala High Court reported in State of Kerala vs. Vasudevan Nair (Supra) and Municipal Committee, Amritsar vs. Hazara Singh (Supra ). In view of the authoritative pronouncement made by their Lordships of the Supreme Court in Municipal Committee, Amritsar vs. Hazara Singh (Supra) the decision of the Single Bench of this Court in Parasram vs. The State of Rajasthan (Supra) cannot be said to be a good law. The net result of the above discussion is that the appeal, filed by the State Government is accepted and the order of acquittal passed by the learned Sessions Judge is set aside. ;