Baldev Raj vs State of Haryana

B.S. Yadav, J.—Baldev Raj, petitioner was convicted under section 16 (1) (a) (i) of the Prevention of Food Adulteration Act, 1954 (For short the Act) by the learned sub Division Judicial Magistrate, Panipat and sentenced to undergo rigorous imprisonment for six months and to pay a fine of Rs. 1,000/. Rigorous imprisonment for four months in default of payment of fine was also awarded. The petitioner filed an appeal which was heard by the leaned Additional Sessions Judge, Karnal. He did not find any merit in the appeal and dismissed the same.

The prosecution story, as gathered from the evidence is that on 8.12.1978 at about 9 p.m., Government Food Inspector Kali Ram, accompanied by Dr. J.S.Sohi, Deputy Chief Medical Officer (H) Karnal, was present near the hospital on Barsat Road, Panipat. the petitioner came on that road with 15 kgs of cow milk, contained in a drum for sale. Mahohar Lal, Pharmacist, ESI Hospital, Panipat also reached there perchance and the Government Food Inspector associated him in the proceedings. Government Food Inspector disclosed his identity tot he petitioner. He purchased 660 ml of cow milk from the petitioner after observing the formalities prescribed under the Act and the Rules framed thereunder. He divided the purchased milk into three parts and put each part in one dry an clean bottle and added necessary preservative to such bottle. He converted each part of the sample into a sealed packet in accordance with the prescribed procedure. One part of the sealed packet, along with memo inform VII, was sent to the Public Analyst, while a copy of the memorandum and specimen impression of the seal with which the sample was sealed, was sent separately to him. Vide report Ex.PD, the Public Analyst found that milk fat contents in the sample was 6.5% while milk solids not fat 7.8% and thus, the milk was adulterated as the milk solids not fat were 8% deficient of the minimum prescribed standard. Thereafter the Government Food Inspector launched prosecution in Court against the petitioner.

The prosecution version was supported by Government Food Inspector, Kali Ram (PW1) and Dr. J.S. Sohi (PW2). Manohar Lal (PW3) was tendered for crossexamination.

On the application of the petitioner, second part of the sample was sent to the Director, Central Food Laboratory Ghaziabad from where report was received to the effect that milk fact contents in the sample were 64%, while milk solid not fat were 802%. Thus, according to the report of the Director, the sample did not conform to the standard of cow milk for Haryana (It may be mentioned here that no exhibit mark has been placed on that report. However, as it had superseded the report of the Public Analyst, it was read in evidence.

At the close of the prosecution evidence, the petitioner was examined under section 313 of the Code of Criminal Procedure, 1973. He denied the prosecution allegations.

The learned counsel for the petitioner argued that according to Serial No.A 11.01.11 of Appendix B of the Prevention of Food Adulteration Rules, 1955, the standard of milk and milk solids not fat for cow milk for Haryana, has been prescribed as 4.0 and 8.5 per cent respectively and in the present case, the milk fat content in the sample was found to be in excess, while there was a possibility that the milk solids not fat might have settled down or might have gone in the upper layer. In support of his contention, he has placed reliance upon Kadam Singh and Puran Singh v. State of U.P. & others, 1978 (1)F.A.C 160. In that case, the report of the Public Analyst after analysis of buffalo milk was to the effect that milk fat contents were 11% while milk solids not fat were 1.9%. It was remarked:

"It would also not be out of place to observe that when milk is stored, the fat contents come to the top as the milk cools and if sample is taken from the top portion without stirring the milk thoroughly, the sample taken will be very high in fat content and would not give a correct picture or, in other words, would not be a correct sample of the quality of the milk. The Public Analyst, moreover, admitted that if germs from in milk, they destroy the nonfatty solids without affecting milk fat but he added that in that case the milk would become curdled. It is not for us to say whether nonfatty solids could have been destroyed to a considerable extent just before curdling of the milk took place, but in view of the reason discussed, we find that report of the Public Analyst is far from convincing and we have grave doubts if the analysis of the sample was properly done. As will appear from instructions given to Analysts, even during analysis they are advised to thoroughly shake the sample of milk because the milk fat generally accummulates at the top and is only the top portion of the sample is analyzed, it will show a very high percentage of milk fat and a corresponding low percentage of nonfatty solids."

Reliance was also placed on Sultan v. State of Haryana, 1982 CLR 102. In that case the Public Analyst after analysis of cow milk, found that the milk fat contents were 6.4% white milk solids not fat were 6.4%. It was remarked:

"Here the report Ex.PD is silent as to whether sample was thoroughly shaken and the milk was stirred before conducting the analysis to come to that conclusion. No data is available on the record to indicate whether addition of preservatives to the sample milk had the attribute of preserving it in the shaken and mixed form and for the purpose of maintaining its accurate test worthiness, everything seems to be left to the Public Analyst. But his report has not made the Court any wiser, whether the contents of the sample were partially or wholly consumed in the analysis and whether shaken before hand to make it consistent in its constituents. It may be that the upper layer of the milk alone was examined resulting in the high percentage of milk fat and low percentage of milk solids nonfat. How else can such a high percentage of milk fat otherwise be accountable. Doubt having crop in the report of the Public Analyst, its benefit must necessarily go in favour of the petitioner."

With great respects to the learned Judge, if the sample is not stirred properly, only the fat contents come to the top as the milk cools down. Thus, if the sample is taken from the top without stirring the milk thoroughly, the sample might be very high in fat contents, but no authority has been cited to show that milk solids not fat also come to the top as milk cools down or those settle at Of bottom., Moreover, in the present case, both the Public Analyst (His report has ceased to be evidence in the case) and Director, Central Food Laboratory have analysed the sample and found the same to be deficient in milk solids not fat The report of the Public Analyst or that of the Director cannot be doubted merely on the ground that they have not mentioned in their respective reports that they had shaken the sample thoroughly. If the petitioner wanted to prove that the sample had not been properly analysed, he could have summoned the Director, Central Food Laboratory and could have examined him. Otherwise, a presumption can be raised that the analysis was done according to the procedure.

Even if there is marginal deficiency, the defaulter has to be penalised, In The State of Punjab v. Teja Singh, 1976 PLR 433. Three questions were referred to the Full Bench and questions No. 2 and 3 read as under:

"2. Whether the Court is entitled'' to assume a slight or reasonable margin of error in the conclusions recorded by the Public Analyst during the course of analysis of the milk?

Whether a negligible or marginal deviation from the prescribed standard, laid down by the Act can be ignored and acquittal recorded on that basis?"

The answers to all the three questions were returned, in the negative by the Full Bench. State of Haryana v. Kalu, 1979 CLR (Pb. & Chary.) 257 is another decision of this Court. In that case, the Public Analyst had opined that the milk solids not fat were 8% deficient of the minimum prescribed standard. The trial Court had acquitted the accused on the ground that the deficiency was so meagre that the possibility of error in analysis by the Public Analyst could not be ruled out. The State came to this Court in appeal and the same was allowed. Their Lordships remarked;

"5. From the above it is evident that the trial Court was not warranted to have recourse to the process to which it had resorted for holding the respondent ''not guilty of the charge. Once the chemical analysis of the sample deviated from the standard prescribed by the statute it was neither open to the trial Court to hold that the same in its opinion marginal nor to indulge in the addition or subtractions of the ingredients disclosed by Chemical Analyst to come to a conclusion that the overall deficiency could be ignored On the facts of the case, therefore, there is no choice but to hold the respondent guilty of the charge under section 16(1)(a)(i) of the Act." Hence, the petitioner cannot be acquitted merely on the ground that there was marginal deficiency of milk solids not fat in the milk.

The learned counsel for the petitioner next argued that the report of the Director, Central Food Laboratory was not put to the petitioner when he was examined under section 313 of the Code of Criminal Procedure and only toe report of the Public Analyst was put to him, but that report stands superseded in view of the report of the Director of the said Laboratory. He. therefore, argued that as material piece of evidence, upon which the conviction of the petitioner has been based, was not put to him for explaining it. it could not have been used against him and in such circumstances, it will have to be held that there was no proper examination of the petitioner and he has been prejudiced and is, therefore, entitled to acquittal. He has relied upon Municipal Committee, Amritsar v Om Parkash, 1969PLR 793. In that case, sample of Ghee was taken by the Food Inspector from the accused The Public Analyst, in addition to other things, found that Baudouin test was positive. On the application of the accused, the second part of the sample was sent to the Director, Central Food Laboratory, who found that the Baudouin test was negative. He, however, further found that there was moisture in the sample to the extent of 1.8%. The trial Court convicted the accused on the basis of the report of the Director of the Central Food Laboratory, as the moisture content exceeded the maximum permissible limit of 0 3% under item A. 11.14 of the prevention of Food Adulteration Rules In appeal, it was held that the report of the Public Analyst had to be ignored as it had been superseded by the report of the Director in view of the provisions of section 3 of the Act. It was further held that the accused had been deprived of his right and had been prejudiced at the trial as he was not afforded any opportunity by the trial Court to explain the presence of moisture found in the sample by the Director or to produce any evidence in support of any explanation that he might have given. The appeal of the accused was accordingly accepted and he was acquitted. Municipal Committee, Amritsar filed an appeal in this Court. That appeal was rejected and it was remarked :

"Applying the principle enunciated,above to the facts of the present case, we feel that it was obligatory on the part of the trial Court to put to the respondent that part of the Director''s certificate in which the percentage of moisture in the sample of Ghee in question was stated to be 1.8% and which forms practically the entire case against the respondent."

Om Parkash''s case was distinguished by this Court in a later judgment reported as Inder Singh v. State of Punjab, 1980 (11) F.A.C. 371. In that case also, the report of the Director of the Central Food Laboratory was not put to the accused in his examination under section 313 of the Code of Criminal Procedure, 1973. The trial Court convicted the accused from whom sample of unindicated milk was purchased by the Food Inspector and which, on analysis, was found to contain 7.3% milk solids not fat and milk fat 4.1%. The conviction was upheld in appeal. The accused came to this Court in revision and placed reliance upon Om Parkash''s case (supra). That revision was dismissed and it was remarked:

"In spite of the mistaken view of the law taken by the Additional Sessions Judge there is nothing to show that a prejudice has been caused to the petitioner. In the above said reported case the position was quite different. There was a report of the Public Analyst in relation to a sample of Ghee. In that report there was no moisture found. However, in the subsequent report obtained from the Central Food Laboratory there was found to be moisture to the extent of 1.8 per cent. This view was expressed that it was obligatory on the part of the trial Court to put to the respondent in that case that part of the Director''s certificate in which the percentage of moisture in the sample of Ghee in question was stated to be 1.8 per cent and which formed practically the entire case against the respondent. In the instant case no additional constituent was found when the sample was examined by the Central Food Laboratory. Even though there was a slight variation shown in the constituents yet the milk was found deficient in milk solids not fat. If the petitioner had already been questioned in his examination about the deficiency nothing more was required to be asked from him in view of the fact that he himself tendered in evidence report Exhibit DA. It was not such a case that something new was found in the report in relation to which some explanation from the side of the petitioner was required. I have thus reached this conclusion that examination of the petitioner by putting to him certificate Exhibit DA was at all not necessary and his nonexamination on this point has caused prejudice to him."

The above observations clearly apply to the present case.

The learned counsel for the petitioner has also placed reliance on Ghanshyam v. State of U.P.,1983 (1) F.A.C. 36. In that case the accused was convicted and sentenced by the trial Court and the same was maintained by the appellate Court. The accused filed revision in the High Court. Though the facts of that case have net been given in detail in the judgment, but it appears that the Public Analyst had found that the sample of Ghee taken front the accused was adulterated as vegetable Oil Basa and oil was mixed with the Ghee. The Director, Central Food Laboratory did not find any vegetable oil or Basa mixed with the sample of Ghee, but found it to be adulterated as it did not conform to the standard of Ghee for U.P. It was argued in the High Court that the report of the Director, Central Food Laboratory had surpassed the report of the Public Analyast and the accused was being convicted on the basis of the former''s report, but that report had not been put to the accused during his examination under section 313 of the Code of Criminal Procedure.

It was held:

"This omission to put this report to the applicant under section 313. Cr.P.C. was an omission of farreaching consequences, because very important evidence against the applicant on which he was going to be convicted was not put to him and he was not allowed an opportunity of explaining this evidence. Since this report was not put to the applicant under section 313, Cr.P.C., the conviction of the applicant cannot be upheld.

The revision petition of the accused was accordingly accepted and the accused was acquitted The facts of that case are practically similar to the facts of Om Parkash''s case (Supra) and therefore, those need not be discussed in detail.

The learned counsel for the petitioner also placed reliance upon Bhim Sen v. The State of Punjab, 1975 (2) F.A.C. 242. The facts of that case are that the sample of aerated water was taken from the accused. The Public Analyst, after analysis of the sample, found that it contained 0.38% of sucrose, while it should not have been less than 5%. On the application of the accused, the second part of the sample was sent to the Director, Central Food Laboratory front where certificate of analysis was received, stating that sucrose content was absent, but there was coal tar dye. The trial Court did not take into account the certificate of the Director, since that did not form the subject matter of the charge against the accused. He, however, convicted him as sucrose content was found deficient. In appeal, the Sessions Judge maintained the conviction and sentence of the accused The accused came in revision to the High Court, but it was rejected. He went to the Supreme Court. The Supreme Court accepted the contention of the accused that he had sold ''aerated water'' and not'' sweetened aerated water'' and therefore, even if sucrose content in this sample was negative, it could not be said that he committed any violation of the standard of quality prescribed for aerated water in item A.01. 01 of the Rules. On behalf of the State it was urged in that case that the conviction of the accused could still be maintained, as the sample was found to contain prohibited coal tar dye. The contention was repelled by their Lordships by remarking as follows:

"Before we part with this case, we must refer to one other contention urged on behalf of the respondent in a desperate attempt to sustain his conviction. That contention was that according to the certificate of the Director, Central Food Laboratory. which superseded the report of the Public Analyst,the sample of'' "aerated water" sold by the appellant contained nonpermitted coat tar dye arid consequently, it was adulterated and the appellant was rightly convicted for selling it.

But the short answer to this contention is that it did not form the subject matter of the charge against the appellant nor was it put to him in his examination under S. 342 of the Code of Criminal Procedure, and it is, therefore, not open to the State to urge this ground for the first time at this stage in order to support the conviction."

That case is distinguishable from the present case. In that case, the presence of prohibited coaltar dye in the article of food, was, not the subject matter of the charge nor was the accused examined under section 313 of the Code of Criminal Procedure about its presence in the article. In the present case, in the charge (in fact no charge was framed and only notice of accusation was given to the accused) it was mentioned that milk solids not fat were deficient, as found by the Director, Central Food Laboratory. Further, percentage of deficiency was mentioned on the basis of the report of the Director. The accused was examined under section 313 of the Code of Criminal Procedure about the report of the Public Analyst and it was stated that he had found the milk adulterated, During that examination, the accused was further told that the other part of the ample was got analysed from the Central Food Laboratory. The only defect in the said examination was that the report of the Director or its contents were not specifically put to the accused. The main thing to be noted is that the deficiency in milk solids not fat was highlighted both at the time of the framing of'' the charge and the examination of the petitioner under section 313 of the Code of Criminal Procedure. Therefore, the petitioner is not entitled to say that his examination was defective.

In such cases, the main question to be considered is whether the accused has been prejudiced in his defence. In this report, reference can be made to Jai Dev v State of Punjab, AIR 1963 SC 612 wherein their Lordships remarked:

"The ultimate test in determining whether or not the accused has been fairly examined under section 342 would be to enquire whether having regard to all the questions put to him, he did not get an opportunity to say what he wanted to say in respect of prosecution case against him. If it appears that the examination of the accused person was defective and thereby a prejudice has been caused to him that would no doubt be a serious infirmity." (Emphasis added).

Reference may also be made to Shivaji Sahebrao Bobade etc. v. State of Maharashtra, AIR 1973 SC 2622 wherein their Lordships remarked :

"It is the trite law, nevertheless fundamental, that the prisoner''s attention should be drawn to every ''inculpatory material so as to enable him to explain it. This is the basic fairness of a criminal trial and failures in this area may gravely imperil the validity of the trial itself, if consequential miscarriage of justice has flowed. However, where such an omission has occurred it does not ipso facto vitiate the proceeding.. and prejudice occasioned by such defect must be established by the accused. In the event of evidentiary material not being put to the accused, the Court must ordinarily eschew such material from consideration. It is also open to the appellate court to call upon the counsel for the accused to show what explanation the accused has as regards the circumstances established against him but not put to him and if the accused is unable to offer the appellate court any plausible or reasonable explanation of such circumstances, the court may assume that no acceptable answer exists and that even if the accused had been questioned at the proper time in the trial Court he would not have been able to furnish, any good ground to get out of the circumstances on which the trial court had relied for its conviction. In such a case, the court proceeds on the footing that though a grave irregularity has occurred as regards compliances with Section 342. Cr.P.C., that omission has not been shown to have caused prejudice to the accused."

(Emphasis added)

In S. Harnam Singh v. State (Delhi Admn.), AIR 1976 SC 2140 it was remarked:

"Section 342 of the Code of Criminal Procedure, 1898, casts a duty on the court to put, any enquiry or trial, questions to the accused for the purpose of enabling him to explain any circumstances appearing in the evidence against him. It follows as a necessary corollary therefrom that each material circumstance appearing in evidence against the accused is required to be put to him specifically, distinctly and separately. Failure to do so amounts to a serious irregularity vitiating the trial if it is shown to have prejudiced the accused. If the, irregularity does not, in fact, occasion a failure of justice, it is curable under S.537 of the Code."

Thus, from the observations of their Lordships of the Supreme Court, it is clear that the irregularity committed in the examination of the accused is curable unless prejudice has been caused to him and it is for the accused to show that prejudice has been caused to him by the defective examination and if a certain question had been put to him, he could have given some answer. As noticed earlier, the petitioner had been examined about the deficiency in milk solids not fat in the sample. Instead of giving any explanation about the deficiency, the petitioner denied all the prosecution allegations. He even denied that his signatures were taken on the relevant papers. Therefore, at this stage, the petitioner cannot raise the plea that he has been prejudiced by his defective examination. Here I may also quote Ajit Kumar v. State of Bihar, AIR 1972 SC 2058 wherein their Lordships remarked:

"It is difficult to hold that merely because it was not put to the accused that mirror was stolen, the appellant''s examination under S.342, Code of Criminal Procedure was not adequate. It is no doubt true that courts must take care to put all the relevant material circumstances appearing in evidence to the accused so as to enable him to say in his defence what he wants, in respect of the prosecution case and explain any circumstances appearing in evidence against him, but at the same time, as observed in Ram Shankar Singh v. State of West Bengal, (1962) Supp 1 SCR 49 : A.I.R. 1962 SC 1239 every error or omission in complying with S. 342, Cr.P.C. does not necessarily vitiate the trial. Unless injustice results from an irregularity in complying with S.342, interference on this ground would not be justified In the present case when the appellant denied the recovery of railway mirror in answer to question No. 1 no prejudice or injustice can be considered to have been caused to him by the Court''s failure to refer to the fact of the mirror being stolen"

The above observations of their Lordships fully apply to the facts of present case, as the petitioner has denied the fact that the Food Inspector took the sample from him.

For the foregoing reasons, I do not find any merit in this revision petition and dismiss the same.