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1985 Supreme(Ker) 81
Judges : S.PADMANABHAN
H. - Appellant
Versus
Bavenna, Petitioner - Respondent
Case No : Criminal Rev. Case No. 35 of 1984
Decided On : 04/02/1985
Advocates Appeared :
For the Petitioner: Venugopalan Nayanar, Advocate. For the Respondent: Public Prosecutor.
The burden of proof on the accused is not as onerous as that of the prosecution, and non-compliance of statutory provisions can be fatal to the prosecution if it results in prejudice.
Headnote:
Adulteration - Food Adulteration - Prevention of Food Adulteration Act, S. 16(1)(a) read with S. 7(1) and (2)(1a)(m) - Rr. 44(b) and 50(1a), Prevention of Food Adulteration Rules - R. 10, Kerala Food Adulteration Rules
Fact of the Case:
The accused was convicted for selling adulterated buffalo milk for human consumption without a license. The Sessions Judge acquitted the accused based on the proviso to S. 2(1)(m) of the Act, non-conduct of the freezing point test, and violation of S. 13(2) of the Act.
Finding of the Court:
The burden of proving that the milk adulteration was solely due to natural causes beyond human control was on the accused. The court found that the Public Analyst's report may not be free from doubt, and the freezing point test was not conducted, leading to a bona fide doubt regarding the correctness of the report. The court also held that the non-compliance of S. 13(2) dwindled to insignificance and became a matter of academic importance alone.
Issues: The issues included the burden of proof on the accused, reliability of the Public Analyst's report, non-conduct of the freezing point test, and non-compliance of S. 13(2) of the Act.
Ratio Decidendi: The burden of proof on the accused is not as onerous as that of the prosecution. The accused can rely on evidence adduced by the prosecution and attendant circumstances to establish preponderance of probability. The freezing point test is a reliable method of finding added water, and non-compliance of S. 13(2) is fatal to the prosecution if it results in prejudice.
Final Decision: The decision of the learned Sessions Judge to acquit the accused was upheld, and the revision was dismissed.
On a complaint by the Food Inspector, Kanhangad Circle, the accused was convicted for an offence punishable under S. 16(1)(a) read with S. 7(1) and (2)(1a)(m) Prevention of Food Adulteration Act, hereinafter referred to as 'the Act' and Rr. 44(b) and 50(1a), Prevention of Food Adulteration Rules, hereinafter referred to as 'the Rules' as well as R. 10, Kerala Food Adulteration Rules, by the Judicial First Class Magistrate, Hosdurg, who sentenced him to simple imprisonment for six months and to pay a fine of Rs. 1,000/-. The charge against him was that on 21-11-1979 at about 2 p.m. he was found having exposed for sale adulterated buffalo milk for human consumption at the premises of the Kanhangad Co-operative Milk Supply Society bearing No. VI/561-B of the Kanhangad Panchayat without licence. In Crl.A. No. 69 of 1982, the Sessions Judge, Tellicherry acquitted him. The case was taken up in calendar revision. Notices were issued. Both sides were heard.
2. The Sessions Judge acquitted the accused on the grounds : (i) he is entitled to protection under the proviso to S. 2(1)(m) of the Act, (ii) the freezing point test, which is the reliable test to find out added water was not conducted and (iii) S. 13(2) of the Act was violated.
3. Ext. P2 report of the Public Analyst showed that milk fat was 7.1% and milk solid non fat was 6.6% in the sample. The prescribed standard for buffalo milk is milk fat 5% and milk solid non-fat 9%. In the sample milk fat was found 2.1% in excess of the prescribed minimum. The main item of adulteration was deficiency in milk solid non-fat by 2.4% from the prescribed minimum.
4. Undoubtedly milk is an item of primary food. The proviso to S. 2(1)(m) of the Act reads :
"2(1)(m) xx xx
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."
5. In primary food when the quality or purity falls below the prescribed standard or its constituents are present in quantities not within the prescribed limits of variability solely due to natural causes beyond the control of human agency, it cannot be considered adulterated. In this particular case, adulteration is mainly due to milk solid non-fat being below the prescribed minimum. The question is whether it is solely due to natural causes beyond the control of human agency. If the answer is in the affirmative, the food cannot be said to be adulterated.
6. In this case undoubtedly the burden of proving this fact is not on the prosecution but on the accused. It was so held in Rajan v. Food Inspector 1982 Ker LT 706 : (1982 Cri LJ 170) wherein it was found (at P. 173):
"The prosecution cannot be expected to prove that the fall in standard was solely due to natural causes and beyond the control of human agency. In the very nature of the circumstances this is a matter which it would be for the accused to prove."
7. It is an established legal principle that the burden of proof cast on the accused is not onerous as that of the prosecution to establish the case beyond doubt. Prosecution is expected to prove the guilt of the accused beyond reasonable doubt by adducing evidence which the nature and circumstances of the case warrant. Burden of the accused is not so tough. He is not expected to prove his case beyond doubt. It is enough if he establishes preponderance of probability for that purpose. It is not necessary for him even to let in evidence if the probabilities could be otherwise established. In order to establish his defence he can even rely on the evidence adduced by the prosecution and the attendant circumstances brought out by the prosecution evidence. If such evidence and circumstances are capable of probabilising his c
