The certainty of a general standard would be replaced by the vagaries of a fluctuating standard if the prescribed standard is varied to any extent. When a standard has been prescribed by law for an article of food, it is not within the scope of the courts to question the reasonableness or correctness of the standard.

NARAYANA PILLAI, J.

This appeal by the State is from the acquittal of the respondent by the Sub-Divisional Magistrate, Attingal, of an offence punishable under the Prevention of Food Adulteration Act, hereinafter referred to as "the Act".

2. On June 12, 1972, the respondent sold to the Food Inspector of the Elakamon Panchayat, P.W. 1, 660 m.l. of cow milk. After complying with the formalities prescribed by law and adding the necessary preservative the sample was sent to the Public Analyst for examination. He received it on June 15, and after analysis issued the report, Ext. P/5, on June 19, 1972, declaring the result as follows :-

"Milk fat .... 4.8%

Milk Solids-non-fat.... 7.7%

Starch and Sugar.... Absent and freezing point (Hortvet's method) .... 0.48 degree C."

and expressing his opinion thus :

"The said sample does not conform to the standards prescribed for cow's milk under the Prevention of Food Adulteration Rules, 1955 and is therefore adulterated.

The sample contains not less than nine per cent (9.0%) of added water, as calculated from the freezing point (Hortvet's method). The percentage of added water has been calculated on the basis of the fact that the freezing point of genuine cow's milk is 0.53 degree C."

After receipt of the report P.W. 1 filed the complaint on September 5, 1972. Besides P.W. 1, an attestor in the memorandum prepared by him at the time of purchase. P.W. 3, also gave evidence about the sale of milk by the respondent. The Magistrate found that the sale of milk as alleged was proved but acquitted the respondent holding that the percentage of added water in the sample was negligible.

3. It is sufficiently proved in this case by the evidence of the prosecution witnesses, which is reliable, that the respondent sold 660 m.l. of milk to P.W. 1 as alleged by the prosecution and by the report of the Analyst that that milk was adulterated as it did not conform to the standard. Therefore unless it is found that the variation of the standard was negligible and so could be ignored, conviction has to follow.

4. The Magistrate followed the decision of a learned Single Judge of this Court in Gopinathan Nair v. Palani, 1971 Ker LT 248 to hold that if the adulteration was negligible it could be ignored. The correctness of that decision is challenged here.

5. As here it was sale of milk that was involved in 1971 Ker LT 248 also. There the variation in the milk solid-non-fat was 0.3 per cent. The decision there was that it was a borderline variation and that the accused was entitled to the benefit of doubt arising from it. In that case the learned Judge followed the decision of the Supreme Court in the Malwa Cooperative Milk Union Ltd. v. Bihari Lal, Criminal Appeals Nos. 235 and 236 of 1964 (unreported). (Since reported in 1968 Jab LJ 213 (SC)) and the decision of the Delhi High Court in Municipal Corporation of Delhi v. Om Prakash, 1970 Cri LJ 1047 (Delhi). In 1970 Cri LJ 1047 the Delhi High Court also followed the decision of the Supreme Court in Criminal Appeals Nos. 235 and 236 of 1964 (Since reported in 1968 Jab LJ 213 (SC)) and held that where the difference was only marginal benefit of doubt could be given to the accused.

6. The facts in Criminal Appeals Nos. 235 and 236 of 1964 (SC) (Since reported in 1968 Jab LJ 213 (SC)) were peculiar. Two samples of buffalo milk purchased from a Co-operative Milk Union were found on examination by Analyst to contain less than the required minimum solid, in one sample by 1% and in the other by 0.4%. As the Milk Union was likely to become one of the major milk distributors in the City of Indore the Corporation of the City of Indore considered that it was not in the public interest to continue the prosecution against the Milk Union especially when none of the accused had personally benefited by the sale and the Public Prosecutor applied for permission to withdraw the two cases. The trial Magistrate allowed it and acquitted the accused. Applications filed before