Gugan vs State of Haryana

A.N. Jindal, J.—This revision petition has arisen out of the judgment dated 6.4.1994 passed by Additional Sessions Judge, Rohtak dismissing the appeal of the accused-Petitioner (hereinafter referred to as the Petitioner) against the judgment dated 24.12.1991 passed by Chief Judicial Magistrate, Rohtak, acquitting Tej Bhan and convicting the Petitioner u/s 16(1)(a)(i) of the Prevention of Food Adulteration Act, 1954 (for short `the Act'').

The case of the complainant is that on 16.4.1986, at about 9.00 p.m., Government Food Inspector intercepted the Petitioner, who was carrying 20 liters of cow''s milk for sale. Notice Ex. PA was served upon him and 660 milliliters of milk was purchased on payment of Rs. 2.50 vide receipt Ex. PB. The sample so purchased was put into three dry and clean bottles and sent to the Public Analyst, Haryana, Chandigarh, who vide his report Ex. PD declared the same to be adulterated as the solids not fat were six per cent deficient of the minimum prescribed standard. Consequently, complaint Ex. PE was instituted.

After evaluating the pre-charge evidence and finding a prima facie case against the Petitioner and his co-accused (since acquitted), they were charged u/s 16(1)(a)(i) of the Act, to which they pleaded not guilty and claimed trial.

To prove its case, the prosecution examined Shri Sant Lal Anand, Food Inspector (PW-1), Dr. S.K. Bhayana (PW-2) and Shri Rohtas, Clerk (PW-3). After tendering into evidence the report of the Public Analyst Ex. PD and some other documents, the prosecution closed its evidence.

When examined u/s 313 of the Code of Criminal Procedure, the accused denied all the allegations and pleaded their false implication in the case. However, no evidence in defence was led. The trial ended in conviction of the Petitioner and acquittal of co-accused Tej Bhan. Appeal of the Petitioner was also dismissed.

The learned Counsel for the Petitioner has vehemently argued about improper stirring of the milk, which is the main cause for deficiency of solids not fat to the extent of 6% in the sample milk. No plausible explanation has come on the file to show as to how only the milk solids not fat would be lesser then the prescribed standard because if any adulterant is added, then certainly the milk fat will also come down, but there is no such allegation. The net result is that the sample was not properly stirred. Nothing has been mentioned in the complaint as to how the milk was stirred by the Food Inspector. In the Form Ex. PA, it is not mentioned that the whole contents of the drum were mixed, before taking the sample.

It has been observed in case Lekh Rai v. U.T. Chandigarh, 1990 (1) RCR (Cri.) 479 as under:

The assertion of the Govt. Food Inspector that he had stirred the contents of Patila with a milk-measure is not sufficient to conclude that the milk was properly stirred unless the milk is stirred with a deep probe or by transferring the milk in the Patila to another vessel and stirring it in the said process. On the other hand, the stirring of the milk with a milk measure would result in blowing it and separating the fat contents from the milk solids. It appears that the lower appellate court had wrongly appreciated this controversy by holding that it was for the accused Petitioner to stir the milk properly before giving the samples. Thus, the appellate Court instead of giving benefit of doubt to the Petitioner has given it to the prosecution agency. The aforesaid view is supported by a decision of Division Bench of the Rajasthan High Court in State of Rajasthan v. Kachav, 1979 (11) FACT 359. In that case also the sample was found to contain more fats than the prescribed, while it was deficient in milk-solids not fat. Under these circumstances, it was held that the sample of milk was not taken after properly stirring it. Thus, it cannot be said that the milk which was being sold by the Petitioner was found deficient in milk solids qua the prescribed standard. In that case, reference was made to "A Laboratory Manual of Milk Inspector by A.C. Aggarwal and R.N. Sharma, Fourth Edition, 1961, page 115.

Again after two years, Bench of this Court in the case The State of Punjab v. Balwant Singh, 1992 (2) RCR (Cri.) 57, held as under:

The Food Inspector has only stated that it was stirred with measurement of one kg. This is not sufficient evidence to prove that milk was properly stirred. There should have been evidence on record that the milk was stirred clockwise and anti-clockwise and the milk measurement had reached the bottom of the drum and the milk lying at the bottom was thoroughly mixed with the upper layer of milk in the drum.

Learned Counsel for the Petitioner has also argued that the factum of stirring the milk was not even mentioned in the spot memo Ex. PC. A perusal of Ex.PC reveals that though it has been signed by the Food Inspector and the Petitioner, but the factum of stirring the milk has not mentioned therein. Similar was the position in case State of Punjab v. Munshi Ram and others, 1992(1) RCR (Cri.) 47, wherein, Division Bench of this Court held as under:

... It is noteworthy that this factum of stirring of milk figured for the first time in the complaint Ex. PG filed on 28.8.1985 although the sample of milk was taken on 17.7.1985. In the seizure memo Ex. PF this fact is conspicuously missing. If that is so, then the mentioning of this fact in the complaint filed after one month is an afterthought and improvement.

The second point raised by the learned Counsel for the Petitioner before me is that, had there been adulteration in the milk, then with the addition of any foreign substance or water, both milk solid not fat and fat, should have proportionately been reduced. Deficiency of milk solid only and not in the fat may indicate that either the sample was not properly analysed or the cow was not properly fed. To the contrary, Mr. K.S. Godara, learned Deputy Advocate General, Haryana urged that the Public Analyst report meets with the standard as laid down in the rules. The percentage of various constituents of milk as disclosed by the Public Analyst could be sufficient to deduce a conclusion that there was over all deficiency of milk constituents. The article did not meet with prescribed standard.

Having deliberated over the matter, the arguments advanced by the learned Deputy Advocate General, Haryana, appear to be not appealing whereas, in support of his arguments, various judgments have been referred by the learned Counsel for the Petitioner. It has been laid down in case Hans Raj v. The State of Punjab, 1980 (2) FAC 396 as under:

When the fat content in the milk is much higher than the minimum prescribed standard, it had necessarily to be inferred that no water had been added to the milk and that the non-fatty solid contained below the standard prescribed could justify that either the cow from the udders of which the milk was drawn was not given the proper feed or that the Public Analyst''s report was erroneous but not the inference that the milk in question was not pure.

Again in case Ujagar Singh v. The State of Punjab, 1980 (1) FAC 432, it was observed as under:

The percentage of milk fat and non-fatty milk solids depends on the proper feeding and health of the animal. There is a problem of non-availability of nourishing and sufficient quantity of food for the cattle, both green and otherwise. The quantity of food given to an animal affects to certain extent, the quantity and quality of milk produced by it. Apparently, it is not possible to take out non-fatty solids from milk without reducing or affecting the fat contents. As such in this case it cannot be said that the accused- Petitioner intentionally effected any adulteration in the milk.

This Court, in a subsequent case titled as State of Punjab v. Mohinder Singh, 1991(3) RCR (Cri) 304, approved the aforesaid two judgments and observed as under:

... When the milk is found deficient in milk solids not fat it cannot be said that the milk is adulterated but the only inference that can be drawn is that the cow was not properly fed....

In the similar circumstances of the case, the Apex Court has approved the view of this Court in case Administrator of the City of Administrator of the City of Nagpur v. Laxman, 1995 Supp (1) SCC 247 and observed as under:

....... Learned Magistrate who acquitted the Respondent who was a small milk vendor noted that the fat percentage is 6% as against 3.5% which is more than the standard prescribed for cow milk. The only shortfall was that S.N.F. was 7.3% where it ought to have been 8.5%. Further, it noted that the total solids are 13.3% which is again more than the satisfying standard of cow milk. Under these circumstances we cannot say that courts below have erred in acquitting them giving the benefit of doubt to the Respondents. The appeal is, therefore, dismissed. However, other question of law which have been debated by the courts below do not really matter, therefore, we do not propose to examine the same.

In view of the above discussion, the impugned judgment of conviction is unsustainable in the eyes of law. It appears that the courts below have erred in ignoring the aforesaid aspect of the case which has caused serious prejudice to the rights of the Petitioner. Resultantly, the present petition is allowed. The impugned judgment is set aside and the Petitioner is acquitted of the charge framed against him. The fine, if deposited, shall be refunded to him.