Rose Milk is a form of flavoured milk.

SUKUMARAN, J.

The statutory favour of Flavoured Milk as that term is employed in the Prevention of Food Adulteration Act, 1955 comes up for determination by the Full Bench. The issue has arisen in two food adulteration cases, one from Neyyattinkara and the other from Ottappalam. Different Judges of this Court have differently reacted; the conflict is reflected in the differing approaches and conclusions reached by the courts below, in almost similar situations. The accused were convicted in one case but acquitted in another. Subsequent to the judgments in the two cases, this Court pronounced on the identical point in Food Inspector v. Aboobacker, 1986 Ker LT 1117. It was held that rose milk is not milk or flavoured milk, that no standards have been prescribed for rose milk, and that prosecution based on adulteration for the short fall in standards cannot succeed. The correctness of the decision was doubted by other Judges and accordingly the question has come up in reference before the Full Bench.

2. Crl. Appeal No. 159 of 1986 is by the Food Inspector, challenging the acquittal made by the Judicial Magistrate of First Class, Ottappalam in S.T. No. 613 of 1984 by which the accused were acquitted under Section 255(1) Crl.P.C. The prosecution was launched essentially on the ground that the sample of food taken from the accused did not conform to the standard prescribed for flavoured milk. It is not disputed that the shop from which the milk was taken displayed a board offering, among others, rose milk. The analysis as evidenced by Ext. P-19 report revealed deficiency in relation to milk fat and milk solid; it also disclosed added water in excess of that prescribed. The court accepted the contention of the defence that rose milk purchased by the Food Inspector cannot be termed as flavoured milk. It was also found that no freezing point test had been conducted to ascertain the existence and extent of added water.

3. C.C. 18 of 1982 of the Judicial First Class Magistrate Court, Neyyattinkara which led to Crl R.P. 292 of 1984, arose out of a case where the Food Inspector purchased rose milk water, which on analysis was found to be not in conformity with the standards prescribed for flavoured milk. Ext.D1 was the report which contained the result of the analysis. The fat content fell below the minimum standard. So too did the milk solids fat. Defence had a contention that what was sold was not flavoured milk. It was not accepted by the trial court which held that the accused did not indicate the class to which rose milk water belonged and consequently the standards applicable to buffalo milk could be adopted. Accordingly the court held that adulteration had been made out, making the accused liable for the punishment. The accused were accordingly convicted and sentenced. The appeal before the sessions Judge was unsuccessful. The appellate court also proceeded on the basis that "rose milk water taken is not in conformity with the standards prescribed for flavoured milk".

4. The question is important. The Director of Public Prosecutions appeared for the State. T. Ravi Kumar and S. Radhakrishnan Nair presented the points of view of the accused. With the assistance at the Bar so available, we shall proceed with the difficult process of decision making.

5. Even in relation to a seemingly simple interpretation of the term flavoured milk certain larger aspects have to be borne in mind. A citizen of India has a right, a Fundamental Right, to carry on a trade or business. Trading in food articles is a perfectly permissible legal activity. Trade in certain articles do not enjoy the Courts good will or encouragement drugs and liquor for example. An article of food is not such an obnoxious one. Imposition of reasonable restrictions on the trading activity cannot be of such a drastic character as in the case of those dangerous items of trade. Yet, food is not merely another vendible commodity. It plays a prominent part in the human life