Kewal Krishan vs State of Punjab

Harbans Singh Rai, J.

The appellant was convicted by Sh. Hardial Singh, Additional Chief Judicial Magistrate, Bhatinda u/s. 16 (1)(a)(i), read With section 7 of the Prevention of Food Adulteration Act, and sentenced to rigorous imprisonment for six months and a fine of Rs. 1,000/, or indefault of payment of fine, further rigorous imprisonment for four months, vide order dated 21st November, 1984. His appeal against the conviction and sentence was dismissed by Additional Sessions Judge, Bathinda on 8th April, 1985. Feeling aggrieved, he has filed this revision.

The prosecution case is that on 31st August, 1982. Kishan Chand, Food Inspector, along with Dr. Sita Ram, Medical Officer Health, was present at Mall Road, Bathinda. The petitioner came on a bicycle,. carrying two drums of milk, containing about 30 kgs. of cow milk each. The Food Inspector disclosed his identity, served a notice on him and took a sample of milk. The report of the Public Analyst established that the contents of the sample were deficient in milksolid not fat than the minimum prescribed standard. The petitioner was challaned, tried and convicted and sentenced, as mentioned in the earlier part of this judgment.

I have heard the learned counsel for the parties. The learned counsel for the petitioner has challenged the conviction primarily on the ground that at the time of the taking of the sample by the Food Inspector, the milk was not stirred and thus made homogeneous and this omission on the part of the Food Inspector has led to unsatisfactory analysis by the Public Analyst. It is further contended that the fat contents were found to be 5.5% which is more than the required percentage of 4%. Milk solids, not fat, were found to be 7.97. which are slightly lesser than the required 8.5%

The learned counsel for the petitioner has cited a number of judgments of this Court wherein it has been held that the nonmentioning of stirring the milk in the complaint is a circumstance which goes against the prosecution, as the statement of the Food Inspector that he did stir amounts to an improvement.

Although in the present case, the Food Inspector has stated in his statement that he did stir the milk at the time of taking of the sample, but the fact that this is not mentioned in the complaint cannot be ignored. A complaint is the foundation on which the prosecution stands and nonmention of such an important requirement shakes the entire prosecution case, and it becomes very difficult to accept the subsequent statement of the Food Inspector to the effect that he did stir the milk. If he had stirred the milk at the time of taking the sample, the contents of the milk fat might not have been 5.5% It is a matter of common knowledge that if the milk is not stirred properly, fats accumulate at the top. In the circumstances of the case, when stirring is not mentioned in the complaint and milkfat is more than the prescribed standard, I am of the View that the petitioner is entitled to the benefit of doubt. 1, therefore, accept the revision and set aside the impugned judgments. The petitioner is acquitted of the charge.