Hans Raj vs State

V.P. Gupta, J.—The Petitioner was convicted for having committed an offence u/s 16(1)(a)(i) of the Prevention of Food Adulteration Act (hereinafter the Act) by the Chief Judicial Magistrate, Dharamsala, vide his judgment dated 3-7-1984. He was sentenced to undergo rigorous imprisonment for a period of six months and to pay a fine of Rs. 1000/-. In default of payment of fine, he was ordered� to undergo imprisonment for a period of one month.

Feeling aggrieved from this judgment the Petitioner filed appeal No. 53 of 1984 but his appeal was dismissed by the Addl. Sessions Judge (I), Dharamsala, on 27-9-1985 and the judgment of the Chief Judicial Magistrate was upheld.

Aggrieved from both these judgments, the Petitioner has now filed the present revision petition.

I have heard the learned Counsel for the parties.

The learned Counsel for the Petitioner contends that the Petitioner is innocent and has not committed any offence. It is contended that the sample of milk was not properly taken, that is, the milk was not stirred. The further contentions of the Petitioner were that the provisions of Section 13(2) of the Act were also not complied with because the Petitioner was not served with the report of the public analyst. The learned Counsel also contended that the milk was a primary food and, therefore, some variations in the contents was possible.

The learned Asstt. Advocate General supported the judgments of the courts below and contended that the Petitioner had been rightly convicted. He contended that there were no grounds to interfere on the revisional side and no material illegality or irregularity had been committed.

I have considered the contentions of the learned Counsel for the parties and have also gone through the records of the case.

The Petitioner was carrying 32/33 kgs. of cow�s milk in a drum on 10-8-1982 for sale and was selling the milk at the bus stand Kangra. Shri Subhash Chand Sharma (PW 1) Food Inspector met him at the bus stand Kangra and he expressed a desire to take the sample of milk. He gave a notice (Ex. PA) to the Petitioner after revealing his identity to the petitioner. Thereafter he purchased 7.50 ml of milk from the Petitioner on payment of Rs. 1.85 as price vide receipt Ex. PB. The milk sample purchased was divided into three parts and formalin was added in each of the samples. The milk was thereafter put in three clean, dry empty bottles which were duly labelled, wrapped and sealed according to rules. One sample was sent to the public analyst on 11-8-1982 for analysis. After receipt of the report of the public analyst it was found that the sample was adulterated and, therefore, the prosecution was launched by the Food Inspector against the petitioner. Notices were given to the Petitioner but the Petitioner did not plead guilty to the offence and claimed to be tried.

Both the courts below have found that the milk was thoroughly stirred before purchasing the sample milk. I find that this finding requires no interference.

Shri Subhash Sharma (PW 1) Food Inspector states that he had stirred the milk properly before taking the sample milk. His statement was not challenged in cross-examination. Similarly Shri Karamjit (PW 3) in whose presence the milk sample was purchased also states that before taking the sample the milk had been stirred properly. His statement was also not challenged in the cross-examination. Nanku Ram (DW 1) is a labourer at the bus stand and he states that the Food Inspector took the sample from the milk container brought by the Petitioner but the milk was not stirred. Nanku Ram (DW 1) is not a witness to any document and is not a resident of Kangra. He is a resident of Tehsil Dehra. His oral statement cannot be believed. In these circumstances, I find that the first contention of the learned Counsel for the Petitioner cannot be accepted.

The petitioner�s counsel also contended that upon analysis the milk fat was found to be 3.9% and milk solids non-fat was 5.2 %, therefore, the milk was not properly stirred. This contention cannot be accepted as the evidence proves that the milk was properly stirred before taking the milk sample.

u/s 13(2) of the Act, a copy of the report of the result of the analysis was required to be forwarded to the Petitioner informing him that if he desired then he could make an application to the Court within a period of ten days from the date of the receipt of the copy of the report to get the sample of milk kept by the local health authority analysed by the Central Food Laboratory. Rule 9-A of the Prevention of Food Adulteration Rules, 1955 (hereinafter the Rules), reads as follows:

9-A. Local {Health) Authority to send report to person concerned.-The Local (Health) Authority shall immediately after the institution of prosecution forward a copy of the report of the result of analysis in Form HI delivered to him under sub-rule (3) of Rule 7, by registered post or by hand, as may be appropriate, to the person from whom the sample of article was taken by the Food Inspector and simultaneously also to the person, if any, whose name, address and other particulars has been disclosed u/s 14-A of the Act:

Provided that where the sample conforms to the provisions of the Act or the Rules made thereunder, and no prosecution is intended under sub-section (2) or no action is intended under sub-section (2-E) of Section 13 of the Act, the Local (Health) Authority shall intimate the result to the vendor from whom the sample, has been taken and also to the person, whose name, address and other particulars have been disclosed u/s 14-A of the Act, within 10 days from the receipt of the report from the Public Analyst.

Thus, in view of Section 13(2) of the Act read with Rule 9-A of the Rules, a copy of the report of public analyst was to be sent to the Petitioner immediately after institution of the prosecution. It was contended that such a copy should have been delivered to the Petitioner by hand, because the Petitioner was not available at his house. The Petitioner thus could not avail the opportunity of getting the second sample of milk analysed from the Central Food Laboratory.

This contention cannot be accepted because the record shows that immediately after the launching of the prosecution, a copy of the report of the public analyst was despatched to the Petitioner through registered post upon the address given by the petitioner. The postal receipt is Ex. PW 2/B and Shri Rajeshwar Singh (PW 2) states that the report was sent to the Petitioner with a forwarding letter (Ex. PW 2/A), but the registered letter (Ex. PW 2/C) was received back. The endorsement of the postal authorities on the registered letter is that the �petitioner goes away from his house at 6 a.m. in the morning to sell milk and comes back at night and for this reason the registered letter could not be delivered to the petitioner.� From this report of the postal authorities, it is proved that the registered letter could not be delivered to the Petitioner due to the non-availability of the Petitioner at the given address and for no fault of the prosecuting authorities. The only requirement of law is that the report of public analyst should be sent to the accused person intimating him that a prosecution had been launched against him and if he so desires, then he can approach the Court for getting the second sample of food analysed from the Central Food Laboratory. Such intimation can be given either through a registered letter or by hand.

As the intimation was sent by a registered letterf upon the address given by the Petitioner himself, therefore,! the provisions of law have been complied with. Further, the Petitioner was sent notices regarding the launching of the prosecution and was required to appear on 22-11-1982 and 20-12-1982. The Petitioner appeared in the Court on 20-12-1982 and furnished the bail bonds. The Petitioner never approached the Court with a prayer that he wanted to get the second sample of the milk analysed from the Central Food Laboratory. If the Petitioner was keen for getting the sample analysed then he could have filed an application for that purpose in the court. In these circumstances, I find that no prejudice was caused to the Petitioner even if it is held that the notice was not served upon the petitioner. The learned Additional Sessions Judgej has rightly rejected this contention of the petitioner�s counsel. Thus the contention that the provisions of Section 13(2) of the Act were not complied with, has no force and is rejected.

The learned Counsel for the Petitioner also contended that the milk was a primary food and some variations in the standards should not therefore be taken to be sufficient to convict the petitioner. In support of this contention reliance was placed upon State of Kerala Vs. A.P. Abdul Khader, , H.V. Bavenna v. State of Kerala [ 1985 (1) F.A.C. 286)], and Administrator of the City of Nagpur v. Laxman Ranuji Hundiwale and Anr. [1985(2) F.A.C. 951.

The learned Counsel for the Respondent contended that the cow�s milk is not a primary food as defined in Section 2(xiia) of the Act. He referred to the judgments of Allahabad and Punjab High Courts in support of his contentions.

I have considered these contentions.

The definition of �primary food� in Section 2(xiia) of the Act is as under:

�primary food� means any article of food, being a produce of agriculture or horticulture in its natural form.

The relevant portion of Section 2(ia) reads as follows:

In this Act unless the context otherwise requires:

x x x x x

x x x x x

(id) �adulterated�- an article of food shall be deemed to be adulterated:

(a) X X X X X X X X X X

(b) X X X X X X X X X X

X X X X X X X X X X

(l) if the quality or purity of the article falls below the prescribed standard or its constituents are present in quantities not within the prescribed limits of variability, which renders it injurious to health:

(m) if the quality or purity of the article falls below the prescribed standard or its constituents are present in quantities not within the prescribed limits of variability but which does not render it injurious to health;

Provided that, where the quality or purity of the article, being primary food, has fallen below the prescribed standards or its constituents are present in quantities not within the prescribed limits of variability, in either case, solely due to natural causes and beyond the control of human agency, then, such article shall not be deemed to be adultrated within the meaning of this sub-clause.

X X X X X X X X X X

In State of Kerala v. Abdul Kader (supra),, the dispute was with respect to the adulteration of a sample of milk taken from Shri Abdul Kader who was running a hotel and tea shop at Vythiri. It was found that the sample was kept in the tea shop for the purpose of manufacturing tea and not for sale as such milk and that it was primary food and the sample ought not to have been taken under sub-section (2) of Section 10 of the Act. There was no dispute that the milk from which the sample was taken was kept for the purpose of manufacturing tea and not for sale as milk. It was contended that the milk was a primary food. The learned Judge after taking into ponsideration the ordinary dictionary meaning of the term �agriculture�, held that the milk is a produce of agriculture and is a primary food. The learned Judge also referred to the meaning of the word �agriculture� as is interpreted under the Income Tax Act in the judgment Commissioner of Income Tax, West Bengal, Calcutta Vs. Raja Benoy Kumar Sahas Roy, At the same time it found that the question as to whether the agricultural income included income received by the assessee from the dairy milk was not finally decided by the Supreme Court.

In H.V. Bavenna (supra), a single Judge of the Kerala High Court simply noted that undoubtedly the milk is an item of primary food. Thereafter it was held that there could be some variation in the prescribed standard due to natural causes which were beyond the control of human agency. In this judgment the milk fat was found to be in excess of the prescribed minimum but the solid non-fat was found deficient from the prescribed minimum and it was held that in such circumstances, the report of the public analyst could not be said to be free from doubt and the benefit of doubt could be availed by the accused.

In Administrator of the City of Nagpur (supra), the learned Judge relied upon the reasonings of Kerala High Court in Abdul Kader (supra) and held that cow�s milk is primary food.

In Natvarlal C. Shah, Food Inspector v. Prabhatbhai Punjabhai and State of Gujarat [1980 (1) F. A.C. 489], a Division Bench of the Gujarat High Court held that cow�s milk can be a primary food provided the accused proved that the milk was drawn from cow, which was reared on the soil and which got its sustenance therefrom and was in its natural form before it was adulterated. In Anr. Division Bench of the Gujarat High Court, in The State of Gujarat v. Khodaji Jinaji and Anr. [ 1980 (2) F.A.C. 289], again it was held that if a person is accu sed of an offence, the burden of proving the existing circumsta nces, bringing the case within the special exceptions or provisions contained in any law defining the offence is upon him and the Court shall presume the absence of such circumstances.

The facts in this case were that the accused was charged for an offence u/s 16(1)(a)(i) of the Act, he sold an article of food which was adulterated within the meaning of sub-clause (m) of clause (id) of Section 2 of the Act. While considering the question whether the accused committed the offence with which he was charged definitions of the word �adulteration� defined in clause (id) of Section 2 alongwith subclause (m) had to be read, in Section 16(1)(a)(i) of the Act. Therefore, as laid down in Section 105 of the Evidence Act, it was for the accused to prove that his case fell under proviso to sub-clause (m) of Section 2(ia). The accused had failed to bring his case within the said proviso as there was no evidence on the record to prove that cow�s milk of which sample was taken by the Food Inspector, was primary food. The Division Bench judgment of Natvarlal C. Shah (supra) that the milk is not primary food unless the accused proves that the milk was drawn from a cow which was reared on the soil and which got its sustenance therefrom and was in its natural form before it was adulterated, was approved. It was held that there was no evidence to prove that the quality or quantity of cow�s milk in question had fallen below the prescribed standard or its constituents were present in quantities not within the prescribed limits of variability solely due to natural causes and beyond the control of human agency. In these circumstances, the accused was held to be guilty of having committed the offence and was convicted.

The Allahabad High Court in Mumtaz Khan v. State of U.P. [1982(1) F.A.C. 96], held that the milk cannot be regarded as primary food. The Punjab High Court in Krishan Lal v. State of Punjab (1982 F.A.J. 361), State of Haryana v. Jagdish Ram (1983 F.A.C. 331), also held that milk is not a primary food.

A Full Bench of the Punjab High Court in Budh Ram (deceased petitioner) v. State of Haryana (1985 Cri L.J. 311), considered the judgments of various High Courts and after a careful analysis of the question, held that the cow�s milk cannot be considered to be a primary food. In this Full Bench judgment the facts were that Budh Ram was running a tea vendor shop and on 10-10-1977 a sample of cow�s milk was purchased from him by the Food Inspector, Riwari, on payment of price. This sample was found to contain milk fat 2.2% and milk solids non-fat 7.1%. The public analyst had opined that the milk fat was deficient by 45% and 14 % of the minimum prescribed standards. Budh Ram was thus tried for having committed the offence u/s 16(1)(a)(j) of the Act and the Judicial Magistrate, Riwari, convicted and sentenced him. He filed an appeal, but,the appeal was dismissed. He filed a revision petition and in this revision petition the question as to whether cow�s milk was a primary food or not, came up for consideration. The learned Judges of the Full Bench considered the question in the light of the definition of primary food as given in sub-clause (xiia) of Section 2 of the Act read with Sections 7, 10 and the proviso of Section 16 of the Act. It was observed in paras 30 and 31 of this judgment as follows:

A comparison of the definition of the �agricultural income� given in Section 2(1) of the Income Tax Act and the definition of �primary food� already reproduced would show that even the limited extended meaning of the term �agriculture� or �agricultural produce� adopted by Bhagwati, J., in Commissioner of Income Tax, West Bengal, Calcutta Vs. Raja Benoy Kumar Sahas Roy, would not be warranted acceptance in the case in hand much less the acceptance, of still wider meaning of the said term so as to include dairying, poultry etc. with the expression �agricultural- produce� which extension Bhagwati, J., had frowned upon as already observed.

Agriculture when considered in its widest amplitude is. held to include within its sweep horticulture, forestry, dairy farming etc. It must be assumed that the Legislature knew that the expression �agriculture� carried both a narrow and a wider meaning. If the Legislature intended to use the expression �agriculture� in wider sense then it was not necessary to mention the word �horticulture� also because agriculture in its wider sense included horticulture also. Hence, there is no escape from the conclusion that the expression �agriculture produce� has been used by the Legislature in a narrow sense as referring to natural produce from plant kingdom cultivated on land for human consumption in contradiction to the produce of horticulture. In view of the above, the question of live stock, poultry, fishery, silk worms, reared on the land or fed on the produce of land as forming part of �agricultural produce� does not arise. Such would be the case more tellingly in regard to the further produce derived from the aforesaid. Hence, �milk� cannot be considered to be primary food.

After considering the matter, I am of the view that the Full Bench of the Punjab High Court has rightly and for good reasons held that the milk cannot be considered to be a primary food.

The judgment of the Supreme Court in Benoy Kumar�s case (supra) was delivered in view of the various provisions of the Income Tax Act and the term �agriculture� was interpreted in the light of the provisions of that Act only by giving it the widest sense. The learned Judges of the Supreme Court observed that the term �agriculture� should be adopted in particular cases depending not only upon the provisions of various statutes in which the same occurs but also upon the facts and circums tances of each case and the definition of the term in one statute did not afford a guide to the construction of the same term in Anr. statute and the sense in which the term had been under stood in the several statutes did not necessarily throw any light in the manner in which the term should be understood generally.

In these circumstances, the present sample of cow�s milk cannot be treated to be primary food and the last contention of the learned Counsel that this sample of milk is a �primary food� cannot be accepted.

The public analyst has given an opinion that the milk in the present case is adulterated. In Nagar Swasthiaya Adhikari v. Sahib Singh and Anr. [1982 (1) F.A.C. 300], a single Judge of the Allahabad High Court, after careful examination of the various cases deduced the following principles to find out as to whether the milk is �adulterated� or not:

(1) If the deficiency is either in the fat contents or non-fatty solids the articles of food would be deemed to be adulterated.

(2) If the aggregate of fat and non-fatty solid contents in the milk is more than the aggregate of the minimum prescribed and the deficiency in one of the contents is marginal, the Courts may not punish the accused on the ground that the marginal deficiency may be due to the error in the analysis by the Public Analyst.

(3) In case the deficiency is in one of the contents, namely, fat or non-fatty solids and the aggregate is also below the aggregate of the two as prescribed under the rules the article would be deemed to be adulterated. (4) If the deficiency in either of the two contents, namely, fat and non-fatty solid contents is sueh when the deficiency cannot normally be assigned to the error in analysis by the Public Analyst, benefit may not be available to the accused by holding that the milk was not adulterated.

In the present case, the report of the public analyst is not challenged and it has heen taken as correct. According to the report the milk fat is 3.9% that is 0.4% more than the minimum standard. The milk solids non-fat is 5.2% that is,3.3% less than the minimum standard. If the two are added then too the aggregate remains 9.1% while according to the minimum standards, it should have been 12%. Hence, the milk sample is not according to the minimum standards laid down for cow�s milk in Himachal Pradesh and it will be deemed to be adulterated.

No other point was urged before me.

In view of the above discussion, I do not find any grounds to interfere with the judgments of the courts below and the present revision petition is dismissed. The Petitioner shall now undergo the sentence/remaining sentence awarded to him.