Inder vs State of Haryana

Harmohinder Kaur Sandhu,

Inder petitioner was convicted for an offence under section 16(1)(a)(i) read with section 7 of the Prevention of Food Adulteration Act and sentenced to undergo rigorous imprisonment for six months and to pay a fine of Rs. 1000/ by Shri V.S. Malik, Sub Divisional Judicial Magistrate, Palwal. In default of payment of fine, he was further awarded rigorous imprisonment for three months. The conviction and sentence awarded to the petitioner were upheld by Shri D.D. Yadav, the learned Additional Sessions JudgeII, Faridabad vide his judgment dated April 11, 1985.

The case against the petitioner was that on August 26, 1981 Shri B.C. Verma, Government Food Inspector intercepted the petitioner near octroi post Mathura Road, Palwal when he was carrying about twenty four kilograms of cow''s milk on his cycle in two drums for public sale. Dr. L.R. Sardana, Senior Medical Officer, Palwal was accompanying the Food Inspector. The Government Food Inspector served a notice Exhibit PA and purchased 660 mls of milk from one drum containing about ten kilograms of milk on payment of Rs. 1.50 vide receipt Exhibit PB. The purchased quantity of milk was divided into three parts and was sealed in three dry and clean bottles after requisite quantity of formaline was added. One sealed bottle was sent to the Public Analyst for analysis and the other two bottles were deposited with the Local Health Authority. The Public Analyst found that the milk contained milk fat 5.6% and milk solids not fat 7.9%. The sample was deficient in milk solids not fat by 7%.

The main contention of the learned counsel for the petitioner was that the complainant had not complied with the requirements of section 13(2) of the Prevention of Food Adulteration Act (Act for short) which caused prejudice to the petitioner. The sample was taken on August 26, 1981 and copy of the report was furnished to the petitioner on July 20, 1982 when he appeared in Court. By that time, the milk was rendered unfit for comparison and the petitioner was deprived of his valuable right to get the sample analysed from Central Food Laboratory. This contention is not of any consequence in view of the conduct of the petitioner. In fact, on receipt of the report of the Chemical Examiner prosecution was launched and copy of the report was sent under registered cover alongwith a forwarding letter to the petitioner. The registered letter was not accepted by the petitioner and it was returned undelivered. The copy of the report was, therefore, given to the petitioner only when he appeared in Court. The complainant was, thus, not at fault for not sending the report of the Public Analyst in time. The registered letter was despatched on correct address of the petitioner. The plea that the petitioner was deprived of his right to get the sample analysed from Central Food Laboratory within ten days of the receipt of the result by him is, thus, without force.

It was further argued on behalf of the petitioner that marginal deficiency in milk solids not fat contents of the sample was due to the reason that the milk analysed was not a representative sample of the milk stored in the drum. Milk in the drum was not thoroughly stirred and made homogeneous before taking the sample. In fact, there was no document on record to show that the milk was stirred prior to the purchase of sample milk. This allegation was not even made in the complaint although witnesses deposed that the milk in the drum was stirred but their deposition was an afterthought. It was necessary to mention in the complaint that the milk was made homogeneous before taking the sample. The learned counsel placed reliance on the case of Mohinder Singh v. The State of Punjab, 1984(1) Prevention of Food Adulteration Cases 69. In this case also the Food Inspector had stated that the milk was not made homogeneous before the same was purchased. This fact was, however, denied by the petitioner. In the complaint it was nowhere mentioned that the milk was made homogeneous or that it was stirred by the Food Inspector or by the petitioner. It was held that the evidence of the Food Inspector could not be accepted at its face value.

In the instant case also, in the complaint there are no allegations that before purchasing 660 mls of milk, the milk in the drum was stirred and the sample was representative sample of the milk. In the case of Madan Lal v. State, 1980(II) Prevention of Food Adulteration Cases 300, there was deficiency of 0.44% in milk solids not fat. It was held that the marginal deficiency in milk solids not fat found by the Public Analyst could be due to the reason that milk analysed was not representative sample of the milk stored in the drum and as such the petitioner was entitled to benefit of doubt.

Considering the circumstances of the present case, I find that milk purchased and analysed was not a representative sample and marginal deficiency in milk solids not fat contents occurred on that account. The conviction of the petitioner, therefore, cannot be maintained.

As a result, I accept the revision petition, set aside the conviction and sentenance of the petitioner for the offence under section 16(1)(a)(i) read with section 7 of the Act and acquit him.