Mehar Chand vs State of Haryana

A. S. Nehra, J.

The petitioner was convicted under Section 16(1)(a)(i) of the Prevention of Food Adulteration Act (hereinafter called `the Act'') by the Chief Judicial Magistrate, Ambala City, and was sentenced to undergo rigorous imprisonment for six months and to pay a fine of Rs. 1000/ and, in default of payment of fine, to undergo further rigorous imprisonment for one month, on 25111985. The appeal filed by the petitioner was dismissed by the Session Judge, Ambala, on 1451986. Briefly stated, the facts of the case are as under :

On 20101980, I. N. Sehgal, Government Food Inspector, accompanied by Dr. D. P. Goel, the then Senior Medical Officer Incharge of Civil Hospital at Naraingarh, visited the premises of the accused petitioner who was running a halwai shop. The accused was found in possession of about 4 kgs. of unindicated milk contained in a patila for public sale Rameshwar Dass, a public witness, was also associated. The Food Inspector disclosed his identity and thereafter served notice Exhibit PA upon the accused. He purchased 660 millilitres of milk on payment of Rs. 1.65 Paise for analysis and issued receipt Exhibit PF to the accused. The milk, so purchased, was divided into three equal parts and put into three dry and clean bottles. Eighteen drops of formaline were added in each bottle as preservative. The bottles were stoppered, labelled and wrapped in thick paper twined with thread and sealed with the seals of the Food Inspector and the doctor. A paper slip issued by the LHA, bearing code number, serial number and signature was pasted on each bottle from top to bottom. The thumb impressions of the accused were taken on each bottle in such a manner so that they partly appeared on toe paper slips and partly on the outercover of the bottled. Spot memo Exhibit PC was prepared, which was thumb marked by the accused and attested by the PWs. One such sealed bottle along with a copy of memo in form VII was sent to the Public Analyst through Shambhu Nath Peon. A copy of memo in form VII was separately sent to the Public Analyst through the same person. The other two bottles were deposited with the LHA. On receipt of report Exhibit PD of the Public Analyst, declaring the sample as adulterated i.e., milk fat 17% deficient and milk solids not fat 6% deficient of the minimum prescribed standard, prosecution was launched against the accused through complaint Exhibit PE and he was informed of the same through registered post along with copy of the report of the Public Analyst.

The prosecution examined Food Inspector I. N. Sehgal PW1 and Dr. D. P. Goel PW2 and affidavit PX, copy of the forwarding letter Exhibit PF and postal receipt Exhibit PG were tendered in evidence.

The accused, when examined under Section 313 of the Code of Criminal Procedure, denied the allegations levelled against him. His plea was that he had no concern with the shop from where the sample was taken; that the shop belonged to one Sardara, which fact was brought to the notice of the Food Inspector who obtained his thumbimpression on the document despite the fact that the shop belonged to Sardara; that the milk, from which the sample was taken, was cow''s milk and a board to this effect was displayed on the shop; and that the Food Inspector mentioned the said milk as unindicated.

The petitioner examined Madan Lal DW1 who supported the defence of the accused petitioner.

The learned counsel for the petitioner has submitted that the law is well settled that, before milk sample is taken, which is 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 mixed up in it, are hardened 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 milk. It is lighter in weight and it does not remain mixed up with the remaining liquid for a very long time. If the milk is constant for some time, its fat content goes to the top and accummulates there. If a sample is taken without mixing the milk thoroughly, or in other words, without 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 portion. It is for this reason that the Courts have laid down that before taking sample of milk, it has to be made homogeneous, so that the sample remains representative.

In the case in hand, the fact is that the sample, before it was taken, was not made homogenous. The complaint does not contain any reference about the stirring of the milk. It was urged before me, on the basis of several decided cases of this Court, that if it is not mentioned in the complaint that the milk was stirred before the sample was taken, then the accused is entitled to acquitted. In support of his argument, the learned counsel for the petitioner has relied upon State of Punjab and another v. Jagan Nath, 1987(1) Recent Criminal Reports 5 , wherein it was held that there is no statutory requirement that such a fact should be mentioned in the complaint. It was further held in Jagan Naths''s case (supra) :

"There is, therefore, no gainsaying that before a sample of milk is taken by the Food Inspector he must ensure that the milk has been made homogeneous. Otherwise, the report of the analyst is bound to be misleading regarding the contents of fat and solids not fat. While assessing the value of the report, it becomes the duty of the Court to ascertain if the sample of milk had been properly taken by the Food Inspector. The proper sample would only be of the milk made homogeneous by stirring. If the Court comes to the conclusion that the milk was not properly stirred and made homogeneous, it is not bound to rely upon the report of the Public Analyst to base conviction of the milk vendor. To come to a conclusion that the milk was made homogeneous when the sample was taken, the contents of the complaint have necessarily to be looked into. In case the factum of stirring of the milk is missing the complaint, it is open to the trial Court to entertain doubt on the statements of the Food Inspector and his witnesses in respect thereof.

An analogy can be drawn from a private complaint before a Magistrate, as also one made before the police in a cognizable case in the shape of a first information report. If an occurrence takes place, the complainant in such private complaint or in the first information report, as the case may be, may give a narration of the same with holding the names of the eyewitnesses or some other salient facts. As long as the allegations constitute an offence, the cognizance of the case cannot be refused by the Court. But, at trial, these omissions would assume importance and the proof adduced before the Court regarding the facts so omitted in the First Information Report would be looked with suspicion and the benefit of doubt will become available to the accused. Such a situation will arise not because the mention of those facts was necessary requirement of the complaint to constitute the offence but because the omission would make the evidence, which is produced to prove these facts suspect as an afterthought. The omission is not inherently fatal to the prosecution case but the Court while assessing the evidence would certainly be entitled to take the view that evidence of the facts not mentioned in the complaint or the first information report cannot be safely relied upon. But the same reasoning, although it may not be necessary to mention the factum of making the milk homogeneous for maintainability of the complaint, yet it would be open to the Court, not to place implicit reliance on the evidence produced in respect thereof in the Court on the ground that, in the light of the omission in the complaint this evidence could possible be an afterthought. We must hasten to make it clear that the Court is not bound to reject the evidence of stirring of the milk simply because this fact is omitted on the complaint. But in view taken by us is that the trial Court cannot be faulted in giving benefit of doubt to the accused if, on taking overall view of the evidence, it arrives at the conclusion that due to the omission in the complaint it would be hazardous to rely upon the evidence to hold the milkvendor guilty of adultering the milk".

The circumstances are to be proved by the complainant. There is no proforma prescribed for the drafting of the complaints. Necessary facts which constitute an offence have to be mentioned in the complaints. If some essential facts or essential requirement which are a prerequisite before doing an act are not mentioned in a complaint, then the accused, in given cases, has the right to say that the prosecution has made and improvement in its case. It is a practice in the States of Punjab and Haryana that the Food Inspectors have got a form of complaint printed. They simply fill in the blanks in accordance with the facts of the cases before filing those in Courts. Such a practice is not healthy as such proformas are not comprehensive to contain all facts of every conceivable case. It is high time that the Food Inspectors realize that such printed proformas which are deficient in certain aspects should not be used for filling the complaints. Almost in every case, which I have come across, the mention of the stirring of the milk is singularly absent. In many circumstances, as in this case, this fact assumes importance to know whether the Food Inspector has performed his duties properly and in accordance with the accepted rules of taking samples. It is very easy for a witness to say a fact at the time of evidence. If this improvement is allowed in every case, then a day will come when the Food Inspectors will omit to mention in the complaints how the sample was taken, how and what type of preservative and what quantity of it was added to the sample. I, therefore, do not feel inclined to grant this latitude to the Food Inspector to made improvements in the case under the Prevention of Food Adulteration Act as it has been done in this case by mentioning only at evidence stage about the stirring of the milk. On evidence, I find that it is a case of deliberate improvement.

Since the Food Inspector has not mentioned in the complaint that the milk was stirred before the sample was taken, therefore, the petitioner is entitled to be acquitted.

For the foregoing reasons, this revision petition is allowed the conviction and sentence of the petitioner are set aside and he is acquitted.