Devi Dayal vs State of Haryana

M.L. Singhal, J.

The prosecution case in brief is that on 8.2.1989 at about 12.30 PM Sh. Chand Ram Grewal, Govt. Food Inspector visited the milk stall/tea stall of Devi Dayalaccused situated near Power House, Bhiwani Road, Hansi. Sh. Chand Ram Grewal disclosed his identity that he was Govt. Food Inspector, authorised to seize sampled of food stuff from their vendors and to have them analysed from Public Analyst, Haryana. 10 kgs. of boiled cow milk was lying in a patila at his shop, which was meant for sale to the public. At that time, Dr. S.K. Gupta was also with him. He served notice Ex.PA on the accused and asked him to supply him 750 mls of milk for analysis on receipt of necessary price from him. He thoroughly stirred the milk contained in the patila and made it homogeneous and purchased 750 mls. of milk an payment of Rs. 3.75 to him. He divided that milk into three equal parts. He put each part in a dry, clean and empty bottle. Accused gave him receipt Ex.PB in token of receipt of Rs. 3.75 from him against the supply of 750 mls of milk to the Food Inspector. The sample bottles were stoppered tightly and sealed on the neck with the seal of Medical Officer. The bottles were lebelled and wrapped in strong thick paper. The ends of the paper were pasted with gum. A paper slip bearing code number and signatures of the Local Health Authority, Hansi was pasted on each bottle from top to bottom. Each bottle was secured by means of strong twine and sealed with the seal of Medical Officer and Food Inspector at the spot. Thumb impression of Devi Dayal was obtained in such a manner that it appeared partly on the paper slip and partly on the wrapper of the bottles. One sealed bottle alongwith memorandum in Form VII was sent to the Public Analyst, Haryana for analysis in a sealed packet. The other two sealed bottles of sample alongwith two copies of memorandum in From VII were deposited with the Local Health Authority on 9.2.1998. A copy of the memorandum in Form VII and specimen impression of the seals used in sealing the sample were sent to the Public Analyst Haryana separately by registered post. Public Analyst found vide report Ex.PD that the sample was deficient in milk solids not fat content to the extent of 26.0 per cent of the minimum prescribed standard. On receipt of the report of the Public Analyst by the Local Health Authority, a copy whereof was sent to the accused through registered post, complaint under Section 16(1)(a)(i) read with Section 7 of the Prevention of Food Adulteration Act was instituted against the accused.

On the conclusion of the trial, Sub Divisional Judicial Magistrate, Hansi vide order dated 29.9.1991 found the charge under Section 16(1)(a)(i) read with Section 7 of the Prevention of Food Adulteration Act proved against the accused. He accordingly convicted the accused thereunder and sentenced him to undergo rigorous imprisonment for 6 months and to pay fine of Rs. 1,000/ or in default of payment of fine to undergo further rigorous imprisonment for one month.

Aggrieved from this order dated 29.9.1997 passed by the Sub Divisional Judicial Magistrate, Hansi, accused went in appeal to the Court of Session. Learned Additional Sessions Judge vide order dated 16.12.1998 dismissed his appeal and upheld the conviction and sentence passed upon him by the learned Magistrate.

Aggrieved from this order dated 16.12.1998 passed by the Additional Sessions Judge, Hisar, Devi Dayal has come up in revision in this Court.

It was submitted by the learned counsel for the petitioner that the Food Inspector has not stated about the instrument with which he stirred the milk and homogenized it. He has simply stated that he thoroughly stirred the boiled milk lying in the patila. It was submitted that the milk should have been stirred clockwise and then anticlockwise thoroughly before it could be said to be homogeneous.

In State of Punjab v. Paramjit Singh, 1992 XIX Crl. L.T 234, a Division Bench of this Court observed as follows :

"That the Inspector in his statement in Court stated that he stirred the milk in one drum containing 20 kgs. of cow''s milk and made it homogeneous. He has not cared to depose as to how and in what manner he had stirred the milk so that he could corroborate the fact that it was made homogeneous before sample was taken. If 20 kgs. milk is in a drum, atleast on this point, the witness 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 with that of the contents of the milk on its upper layer in the drum. If it was stated so, then alone at this point it could be said that the milk was homogeneous and the sample was taken of the representative material."

It would bear repetition that the Food Inspector has nowhere stated about the manner how milk was homogenized. Dr. S.K. Gupta and Chand Ram Grewal PWs have stated only generally that milk was stirred and homogenized before the sample was taken.

It was submitted that if the sample milk contained more of milk fat content and less of milk solids not fat content, it cannot be said that the milk was adulterated.

In State of Haryana v. Inder Singh, 1991(3) Recent C.R. 116 , a Division Bench of this Court observed as follows :

The report of the Public Analyst in the instant case that the sample contained milk fat 5.8 per cent and milk solids not fat 8.6 per cent will show that the milk was deficient only by 4 per cent in milk solids not fat of the minimum prescribed standard. The fat content found in the unidentified milk was much higher than the minimum prescribed by the rules so it is to be inferred that no water had been added to the milk and the mere circumstances that nonfatty solids contained below the standard prescribed by the rules could further justify the inference either that the cow from the udders of which the milk was drawn was not given the proper food or that the report of the Public Analyst was erroneous but not the inference that the milk in question was not pure."

My attention was also drawn to Hans Raj v. The State of Punjab, 1980(2) Food Adulteration Cases 396.

In Prem v. State of Haryana, 1996(1) RCR 152 milk solids not fat content was found to be deficient by 0.6% of the minimum prescribed standard, while milk fat content was found to be 1.3% excess of the minimum prescribed standard. It was held that marginal deficiency in milk solids not fat content can be attributed to improper sampling. The sample taken cannot be said to be a representative sample of the whole by any stretch of imagination. This very view was expressed in Darshan Lal v. State of Haryana, 1995(1) CLR 568.

In Sher Singh v. State of Haryana, 1992(2) RCR 480 it was held that when fat content in milk is much higher than the minimum prescribed standard, it has to be inferred that no water had been added to the milk.

In my opinion, the deficiency in milk solids not fat content in the sample milk when the sample milk was found to be containing more of milk fat content cannot necessarily be attributed to the addition of water in the sample milk and no wonder this deficiency arose because of nonstirring and non homogenising of milk before the sample was drawn.

Learned counsel for the petitioner next submitted that there has been violation of the provisions of Section 13(2) of the Prevention of Food Adulteration Act, 1954 inasmuch of there is no evidence that the copy of the report of the Public Analyst was actually received by the accused. Suffice it to say, Sh. Telu Ram, Clerk, Local Health Authority (General Hospital), Hansi PW3 has stated that copy of the report of the Public Analyst was sent to the accused alongwith forwarding letter Ex.P1 through registered post. Postal receipt is Ex.P2. If the copy of the report of the Public Analyst had not been delivered to the accused, it would have been received back in the office of the Local Health Authority undelivered to the accused.

For the reasons given above, in my opinion, this revision should succeed and it is accordingly accepted and the judgments of the Courts below are set aside. The conviction and sentence passed upon the petitioner are set aside and he is acquitted of the charge framed against him. Fine, if paid, shall be refunded to him.

Revision allowed.