Dayal Chand vs Harbhajan Singh

M.L. Singhal, J.

This Crl. Revision is directed against the order of learned Additional Sessions Judge, Karnal dated 3.10.1997 whereby he dismissed the appeal of the petitioner against the order of Chief Judicial Magistrate, Karnal dated 21.8.1995 convicting him under section 16(1)(a)(i) of the Prevention of Food Adulteration Act, 1954 and sentencing him to undergo rigorous imprisonment for six months and to pay fine of Rs. 1000/ in default of payment of fine, to undergo simple imprisonment for a period of 11/2 months.

The prosecution, in brief, is that on 23.8.88, Shri Harbhajan Singh, Govt. Food Inspector intercepted petitioner Dayal Chand in Subhash Colony, Karnal in the presence of Dr. B.S. Chaudhary and one Ghanshyam Dass, with 25 litres of cow milk in his possession in two drums. That milk was meant for sale to the public. Shri Harbhajan Singh served notice Ex. PA upon the petitioner, telling him that he was Food Inspector authorised to seize samples of food stuff from their vendors and to have the same analysed from Public Analyst, Haryana. Shri Harbhajan Singh demanded 660 mls. of cow milk from the accused. The accused supplied him 660 mls of cow milk on receipt of Rs. 3/ from him vide receipt Ex. PB. after he had stirred the whole quantity of milk and made it homogeneous. The milk so purchased was divided into three equal parts. He put each part in dry, clean and empty bottles. He put two drops of 40% formalin per 25 mls. in each sample bottle. He then made the sample bottles into sealed parcels in accordance with the procedure laid down in the Prevention of Food Adulteration Rules, 1955. He prepared spot memo Ex. PC. He sent one sealed bottle along with memorandum in Form No. VII to Public Analyst, Haryana, Chandigarh for analysis in a sealed packet, through Railway parcel. He deposited the remaining sealed sample bottles along with two copies of memos in Form VII with the Local Health Authority in sealed packets. A copy of the memorandum in Form VII and specimen impression of the seal used in sealing the samples was sent separately to the Public Analyst, Haryana, Chandigarh by registered post. Public Analyst, Haryana analysed the sample and gave report Ex. PD dated 18.9.88. He found the sample of cow milk adulterated inasmuch as the same was found to contain milk fat to the extent of 5.6% and milk solids not fat to the extent of 7.9%. Sample of milk was, thus, found deficient of the minimum prescribed standard so far as milk solids not fat content was concerned. Local Health Authority sent copy of the report of the Public Analyst to the accused/petitioner through registered post along with forwarding memo Ex. PY.

Govt. Food Inspector launched complaint Ex.PE against the accused.

Accused made an application to the court that the second part of the sample be sent to the Director, Central Food Laboratory for analysis. That part of the sample was sent to the Director, Central Food Laboratory who, vide certificate Ex.PF dated 21.11.88, reported that the sample was unfit for analysis. The third part of the sample was ordered to be sent to the Director, Central Food Laboratory for analysis which was analysed. The Director, Central Food Laboratory, vide certificate Ex. PG dated 28.2.89, found milk fat content as 5% and milk solids not fat content as 7.7%. He found the sample, thus, deficient in milk solids not fat content. In cow milk, the milk solids not fat content should be 8.5%.

Accused was charged under section 16(1)(a)(i) read with section 7 of the Prevention of Food Adulteration Act, 1954. He pleaded not guilty to the charge and claimed trial. On the conclusion of the trial, the learned Chief Judicial Magistrate, Karnal found the charge proved against the accused. He accordingly convicted him thereunder and sentenced him as indicated above, vide order dated 21.8.95.

Appeal preferred by the accused to the Court of Session failed.

Feeling that he had been unjustly convicted and sentenced by two courts below, the accused has knocked the door of this court through this Crl. Revision.

It has been submitted by the learned counsel for the petitioner that there is no evidence that milk was thoroughly stirred and made homogeneous in the drum before the sample was taken. It has been submitted that neither in the complaint nor in evidence, it has been stated by the Food Inspector about the manner in which milk was stirred and homogenised. The Food Inspector ought to have stated that he used clean stick or milk measurement and stirred the milk clockwise and anticlockwise in a way that milk at the bottom was thoroughly mixed. It has been submitted that the sample so taken was thus not representative sample. In support of this submission, he drew my attention to Ram Kishan v. State of Haryana, 1997(2) Recent Criminal Reports 462 where it was held that where the Food Inspector had stated that milk was stirred but he did not state about the method of stirring, conviction would not be sustainable. Food Inspector was required to state that he used a clean stick or the milk measurement and stirred the milk clockwise and anticlockwise in such a way that the milk at the bottom was thoroughly mixed. He invited my attention to The State of Punjab v. Inder Singh, 1984(1) FAC 166; State of Haryana v. Rameshwar, 1987(1) FAC 2 and Prem v. State of Haryana, 1996(1) RCR 152.

Shri S.K. Hooda, learned Assistant AdvocateGeneral, Haryana on the other hand, submitted that mere omission in mentioning the factum of stirring of the milk, in the complaint, is not fatal when there is positive evidence at the trial that milk was stirred and made homogeneous. The learned State Counsel also submitted that it was for the petitioner to show that milk had not been properly stirred and homogenised. It was for the petitioner to stir the milk and homogenise it before supplying sample to the Food Inspector. In support of this submission, he has drawn my attention to State of Haryana v. Kirpa, 1985(2) FAC 39.

Suffice it to say, the sample taken should have been representative of the whole quantity of milk from which it was taken. Where the constituents of food are of different specific gravity, a proper mixing and stirring is necessary for making the sample representative. In State of Haryana v. Rameshwar (supra), a Division Bench of this Court observed as under :

"The law is well settled that before milk sample is taken which is a liquid, it should be stirred and made homogeneous. The reason for this is that the milk which is a liquid contains various constituents in different forms. Some are very thoroughly mixed up in it but some, though are mixed in it, are lighter and do not have the same specific gravity and weight as the other constituents have. Fat, for example, is one which differs in some ways from the other constituents of milk. It is lighter in weight and it does not remain mixed up with the remaining liquid for a very long time. If milk is allowed to stand for some time, its fat content rises to the top and accummulates there. If sample is taken without mixing the milk thoroughly or, in other words, making it homogenous then the fat being at the top, its contents will not be in the same quantity in the lower portions as those are in the upper part. It is for this reason that the courts have land down that before taking the sample of milk, it has to be made homogeneous so that the sample remains representative."

It has been submitted by the learned counsel for the petitioner that in this case, the milk fat content is higher than that prescribed in the Prevention of Food Adulteration Rules while there is marginal deficiency in milk solids not fat content. More of milk fat and less of milk solids not fat can be suggestive of the fact that there has been improper sampling by the Food Inspector or the cow from the udders of which milk was drawn was not properly fed. He has drawn my attention to State of Haryana v. Inder Singh, 1991(3) RCR(Crl.) 116, where it was held that where in sample of milk, milk fat content was found to be in excess but nonfatty solids were found to be deficient than the prescribed standard, no inference was to be drawn that water had been added, rather it had to be inferred that either cow was not given proper feed ar report of Public Analyst was erroneous. For this view, reliance was placed on Hans Raj v. The State of Punjab, 1982(2) FAC 396 and Sultan Singh v. State of Uttar Pradesh, 1974 FAC 424.

In this case there is only the evidence of the Food Inspector and that Dr. B.S. Chaudhary PW that milk had been properly stirred and homogenized but they do not state about the manner in which milk was properly stirred and homogenised so that the sample so purchased could be representative of the entire bulk milk in the drum. Omission on their part in this regard could have been ignored if the sample had not been deficient in milk solids not fat content only marginally. Higher percentage of milk fat content and less percentage of deficiency in milk solids not fat content should, in my opinion, be attributable to improper sampling on the part of the Food Inspector.

For the reasons given above, I am of the opinion that this revision should succeed. So, this revision is accepted and the conviction and sentence passed upon the petitioner by the learned Additional Sessions Judge maintaining that passed by the learned Magistrate are set aside. The petitioner is acquitted of the charge levelled against him, Fine, if paid, shall be refunded to him.