Hans Raj vs State of Haryana

M.L. Singhal, J.

The prosecution case, in brief, is that on 20.10.1983 at 1.00 P.M. Shri Balwan Singh, Government Food Inspector, inspected the business premises of Hans Raj accused situated in the courts campus at Jhajjar. At that time, Dr. (Mrs.) J. Chanda and one Ram Parkash were with him. 10 lts. of unindicated milk contained in a patila was lying in the business premises of Hans Raj for sale to the public. Government Food Inspector disclosed his identity to Hans Raj accused that he was Government Food Inspector authorised to seize samples of foodstuff from their vendors and to have the same analysed. He served notice Ex. PA on the accused in Form No. VI which was expressive of this intention on his part that he would seize sample of unindicated milk from him with a view to have it analysed from the Public Analyst. He asked him to supply him 660 mls. of milk. He first stirred milk thoroughly and then made it homogeneous and then purchased 660 mls. from him on payment of Rs. 2/ to him vide receipt Ex. PB. Milk so purchased was divided into three equal parts. He put each part in dry and clean bottles. Two drops of formalin 40% per 25 mls. of milk was added in each bottle. Bottles were made into sealed parcels at the spot in due observance of the procedure laid down in the Prevention of Food Adulteration Rules, 1955. One sealed bottle alongwith memo in Form VI put in a sealed box was sent to the Public Analyst through railway parcel. Remaining two sealed sample bottles put in sealed boxes with Form No. 7 were deposited with the Local Health Authority. Copy of the memo and specimen impression of seal used in sealing the samples was sent separately to the Public Analyst vide Receipt No. 4919 dated 21.10.1983. Public Analyst analysed the sample and recorded report Ex. PD. On receipt of report Ex. PD from the Public Analyst, the Local Health Authority, Rohtak forwarded its one copy to the Food Inspector with a view to his initiating complaint. Local Health Authority sent one copy of their report alongwith forwarding memo to the accused calling upon him to have it reanalysed if he so wished.

At the request of the accused, the other part of the sample was sent to the Director, Central Food Laboratory, for analysis who too found the sample as not conforming to the standards of buffalo milk as laid down in the Act/Rules.

Accused was charged under Sections 7/16(1)(a)(i) of the Prevention of Food Adulteration Act, 1954 by the learned Magistrate vide order dated 28.3.1985. Accused pleaded not guilty to the charge and claimed trial. On the conclusion of the trial, learned Sub Divisional Judicial Magistrate, Jhajjar found the charge proved against the accused, vide order dated 18.2.1987. He accordingly convicted him thereunder and sentenced him to undergo rigorous imprisonment for six months and to pay fine of Rs. 1,000/ or in default, to undergo further rigorous imprisonment for two months.

Feeling that he has been unjustly convicted and sentenced by the learned Magistrate, Hans Raj went in appeal to the Court of Sessions. The learned Addl. Sessions Judge, Rohtak, dismissed the appeal vide order dated 20.11.1987, thus, maintaining the conviction and sentence recorded against him by the learned Magistrate.

Still not satisfied, Hans Raj has sought to try his luck over again and has knocked the door of this Court through this revision petition.

I have heard the learned counsel for the petitioner, learned A.A.G., Haryana and have gone through the record.

It was submitted by the learned counsel for the petitioner that before the sample was allegedly taken, he did not make any enquiry as to the nature to milk i.e. whether it was cow milk or buffalo milk and, therefore, there was no reason to suppose that it was unindicated milk and should conform to the standards of buffalo milk. He submitted that if there was such an omission on the part of the Food Inspector, it has to be taken that it was cow milk and if it was cow milk, there was no deficiency in the sample and the sample was conforming to the standards of cow milk. The Director, Central Food Laboratory whose report superseded the report of the Public Analyst, found milk fat content to the extent of 10.6% and milk solids not fat to the extent of 7.8%. In the report of the Public Analyst, the milk fat content was 8.4% and milk solids not fat content was 8.6%.

Unindicated milk has to conform to the standards of buffalo milk. In Haryana, buffalo milk should contain 6% milk fat content and 9.1% milk solids not fat content while cow milk should contain milk fat content to the extent of 4.0% and milk solids not fat content to the extent of 8.5%. It was quite apparent that the sample milk was not conforming to the standards of purity as laid down in the Prevention of Food Adulteration Rules, 1955 so far as milk solids not fat content was concerned if we take it to be buffalo milk. The Public Analyst found milk fat content to the extent of 8.4% in the sample milk. He found milk solids not fat content to the extent of 8.6%. He found the sample milk to be deficient in milk solids not fat content to the extent of 4% of the minimum prescribed standard. Director, Central Food Laboratory found milk fat content to the extent of 10.6% and he found milk solids not fat content to the extent of 7.8% in the sample milk. He found the sample milk deficient in milk solids not fat content being below the minimum prescribed limit. Assuming that it was cow milk it was not conforming to the milk solids not fat content as per the report of Director, Central Food Laboratory.

Learned counsel for the petitioner submitted that milk was not properly stirred and analysed by the Food Inspector. If it had been properly stirred and analysed by the Food Inspector, there would not have been such vast variation in the milk fat content as found by the Director. In buffalo milk, there should have been milk fat content to the extent of 6% while Director found milk fat content to the extent of 10.6%. He found milk solids not fat content to the extent of 7.8% whereas there should have been milk solids not fat content to the extent of 9.1% in the buffalo milk. It was submitted by leaned counsel for the petitioner that such variation in the milk fat content found by Director Central Food Laboratory in the sample milk suggests that the Food Inspector had not drawn the sample properly and he had not stirred the milk properly and homogenised it properly. It was submitted that presence of more fat content in the sample is not explainable on any other reasonable hypothesis than that the fat being lighter had collected at the top layer of milk and the milk was not properly stirred before its sample was taken. In State of Haryana v. Suraj Mal, 1992(3) RCR 575, it was cow milk in which 6.1% was the fat content as against 4.5% and the milk solids not fat content was 8.1% as against 8.5% and the Hon''ble Division Bench held that "presence of more fat cannot be explained except that milk was stirred at the time of taking sample." In Union Territory, Chandigarh v. Ghansham Dass, 1992(3) RCR 332 there was marginal deficiency in milk solids not fat in the sample of milk which could also be because milk was not properly stirred and homogenised. It was held in Ram Kishan v. State of Haryana, 1997(2) RCR 462 that "statement of Food Inspector that milk was stirred, but method of stirring milk not stated, the accused cannot be said to have been found in possession of adulterated milk. 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 milk at the bottom was thoroughly mixed." In State of Haryana v. Rameshwar, 1987(1) F.A.C. 2 it was observed by a Division Bench of this Court as follows :

"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 the milk. If the milk is allowed to stand for some time, its fat content rises to the top and accummulates there. If a sample is taken without mixing the milk thoroughly or, in other words, making it homogeneous, then the fat being at the top, its contents will not be in the same quantity in the lower portion as those are in the upper part. It is for this reason that the Courts have laid down that before taking the sample of milk it has to be made homogeneous so that the sample remains representative.

It cannot be disputed that sample taken should be representative of the whole quantity of article of food from which it is taken. Where the constituents of food specific are of different gravity, a proper mixing and stirring is necessary in making the sample more representative."

It was held in State of Haryana v. Inder Singh, 1991(3) RCR 116 by a Division Bench of this Court as follows :

"The report of Public Analyst in the instant case that the sample contained milk fat 5.8% and mild solids not fat 8.6% will show that the milk was deficient only by 4% 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 circumstance 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 (feed ?) or that the report of Public Analyst was erroneous but not the inference that the milk in question was not pure."

In Sher Singh v. State of Haryana, 1992(2) RCR 480 it was held that "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."

In this case, thus, no inference can be drawn that milk had been adulterated with water. Presence of much higher percentage of milk fat content in the milk and little deficiency in milk solids not fat content will suggest that there was either improper sampling by the Food Inspector or imperfect analysis of the sample but not that there had been addition of water to the milk.

For the reasons given above, this revision succeeds and is accepted. Conviction and sentence passed upon the petitioner is set aside and he is acquitted of the charge framed against him. Fine, if paid, shall be refunded to him.

Revision accepted.