Kushal Singh vs State of H.P.

Deepak Gupta, J.—This Revision petition is directed against the judgment of the learned Sessions Judge, Kangra at Dharamshala dated 1.10.2002 whereby he upheld the judgment of the learned Chief Judicial Magistrate, Kangra at Dharamshala convicting the petitioner-accused of having committed an offence punishable u/s 16(1)(a)(i)(ii), 7(i), (iii), 2(ia) and (m) of the Prevention of Food Adulteration Act read with Rule 50(1) of the Prevention of Food Adulteration Rules for possessing adulterated milk for sale and sentencing him to undergo rigorous imprisonment for one year and pay fine of Rs. 2000/-.

The undisputed facts are that on 9.12.1995 the Food Inspector purchased 750 mls. Of cow milk from the accused at Kotwali Bazaar, Dharamshala. The accused was in possession of 55 k.gs of cow milk contained in three iron drums. This milk was meant for sale to the general public. The Food Inspector after purchase of the milk divided the same into three parts and put them into three dry and clean bottles after adding 20 drops of formalin as preservative in each bottle. After following the required procedure for making the bottles air tight the same were wrapped. One of the samples was sent to the Public Analyst for analysis. The Public Analyst, Kandaghat after analysis submitted his report according to which milk fat content of the milk was 3.4% against minimum prescribed standard of 3.5% and the milk solid non-fat content was 6.48% against the minimum prescribed standard of 8.5%. Thereafter, sanction of the CMO, Kangra was obtained to launch the prosecution and the complaint filed.

The accused moved an application u/s 13(2) of the Act praying that the second part of the sample be got analyzed from the Director, Central Food Laboratory. This application was allowed by the learned trial Court. The second part of the sample was sent to the Director, Central Food Laboratory, Pune. After analysis the Director Central Food Laboratories sent his certificate/report wherein it was found that the milk fat content of the sample was 3.6% and the solid non-fat content was 6.6% and thus the sample was found not to conform to the standards of cow''s milk in respect of solid non fat content.

The main ground raised by Pt.Om Parkash Sharma, learned Counsel for the accused is that there is difference in the two reports submitted by the analyst at Kandaghat and the Director of the Central Food Laboratories, Pune. He submits that this difference was apparently because of the fact that the milk was not stirred properly at the time when the sample was taken. He further contends that no fresh sanction was obtained from the CMO after the report of the Central Food Laboratory was obtained.

Section 13(3) of the Prevention of Food Adulteration Act reads as follows:

(3) The certificate issued by the Director of the Central Food Laboratory under Sub-section (2-B) shall supersede the report given by the public analyst under sub-section(1).

This sub-section clearly shows that once the report/certificate is issued by the Director of the Central Food Laboratory the report given by the Public Analyst stands superseded then no benefit can be taken because there is any difference in the two reports. As far as the sanction is concerned u/s 20 of the Act, this sanction is required only once before the prosecution is launched. Section 13(2) comes into play after the prosecution is already launched. No fresh sanction is required even if the report of the Central Food Laboratory is different to the report of the Public Analyst.

Even on facts, in the present case the case of the petitioner is without any merit. It has been urged that the milk was not stirred properly before sample in question was taken. In the complaint filed by the Food Inspector it is clearly stated that before taking the sample, the milk was stirred properly by stirring with a rod both clock-wise and anti-clockwise in iron can/drum containing about 20 litres of milk. The Food Inspector appearing as PW-2 has again stated that he stirred the milk both clockwise and anti-clockwise with a rod. He denied the suggestion put to him in cross examination that the sample was not stirred properly.

There is positive evidence in this case that the sample was stirred. It would also be pertinent to mention that the difference in the two reports is not a major difference. Whereas according to the Public Analyst the milk fat was 3.4% and the milk solid non-fat was 6.48%, according to the Central Food Laboratory the milk fat was 3.6% and the milk sold non-fat was 6.6%. The accused can take the benefit of this report in so far as the milk fat is concerned. The minimum requirement of milk fat is 3.5% and as per the report of the CFL the sample conforms to this standard. However, as far as the solid non-fats are concerned whichever report is taken into consideration the solid non-fats are much below the prescribed standard of 8.5%. According to the certificate of the Director, Central Food Laboratory the solid non-fat is 6.6%. This is much below the prescribed standard.

In case the milk had not been stirred properly then fats can accumulate on the top. In such an event the fat content on top would be higher and the fat content on the lower part of the vessel would be lower but this will not affect the solid non-fat content which in the present case are much below the standard prescribed.

In view of the above discussion, I am of the considered view that the learned courts below rightly convicted the accused. I find no merit in the Revision Petition which is dismissed. The petitioner is directed to surrender and undergo the sentence imposed upon him.