Om Parkash vs State of Haryana

M.L. Singhal, J.

The prosecution case in brief is that on 16.12.87 at 1 PM, Shri Harbhajan Singh, Govt. Food Inspector, authorised to seize samples of foodstuff from their vendors under the Prevention of Food Adulteration Act, 1954 (in short the Act), intercepted Om Parkash accused near bus stand Gharaunda in the presence of Dr. B.S. Chaudhary and Suresh Kumar son of Rulia Ram. He was carrying 70 litres of cow milk for sale to the public in three drums. At the outset, the Food Inspector disclosed his identity to the accused through notice Ex.PA which was expressive of intention on his part that he required sample of cow milk from him with a view to having it analysed from public analyst, Haryana. Notice Ex.PA was signed by the accused, Food Inspector and attested by the PWs. After stirring milk and homogenising it, Food Inspector took 660 mls. of milk as sample on payment of two rupees and fifty paise to him. Accused gave him receipt Ex.P8 in token of the supply of 660 mls. of cow milk to him for the purpose of analysis. Sample was divided in 3 equal parts. Each part was put in separate dry, clean and empty bottles. Formalin was added in each of bottle as preservative. Bottles were stoppered tightly and were sealed. One sealed bottle along with form VII was sent to the public analyst Haryana for analysis in a sealed packet. Other two sealed bottles along with 2 copies of memo in form VII were deposited with the local health authority the same day. Copy of memo in form VII affixed with the seal impression was sent to the public analyst separately along with the specimen impression of the seal. Public analyst, Haryana found milk solids not fat content deficient by 9% of the minimum prescribed standard as laid down in the Act. After the receipt of the report of the public analyst, copy whereof was sent to the accused along with forwarding letter calling upon him that if he wanted, he would apply for analysis of the sample to the Director, Central Food Laboratory within 10 days of the receipt of the report of the Public Analyst. Complaint was instituted under sections 7/16(1)(a)(i) of the Act. Accused was summoned to face trial for offences punishable under section 16(1)(a)(i) of the Act.

After recording precharge evidence, the accused was charged under sections 7/16(1)(a)(i) of the Act. Accused was tried in accordance with the procedure laid down for the trial of warrant cases instituted on complaint as laid down in the Code of Criminal Procedure.

On the conclusion of the trial, Chief Judicial Magistrate, Karnal found the charge under section 16(1)(a)(i) of the Act proved against the accused. He accordingly convicted him and sentenced him to undergo RI for 6 months and to pay fine of Rs. 1,000/ or in default of payment of fine to undergo further simple imprisonment for a period of 1 months vide order dated 6.1.1995.

Aggrieved from this order passed by the learned Magistrate, convicting and sentencing him, Om Parkash accused went in appeal to the Court of Session. Learned Additional Sessions Judge, Karnal dismissed the appeal vide order dated 26.2.99 and maintained the conviction and sentence passed upon him by the learned Magistrate.

Still not satisfied, Om Parkash has come up in revision to this Court thereby assailing the conviction and setence passed upon him by learned Additional sessions Judge, Karnal while maintaining the conviction and sentence passed upon him by the learned Magistrate.

I have heard the learned counsel for the petitioner, learned AAG for the State of Haryana and have gone through the record.

Learned counsel for the petitioner submitted that the Food Inspector did not properly stir and homogenise the milk before sample was taken and it was because milk was not properly stirred and homogenised before the sample was taken that the public analyst found deficiency in milk so far as milk solids not fat content was concerned. He was stated that Dr. G.S. Rajoria DW 2 who was Principal Scientist of Dairy Technology at National Dairy Research Institute Karnal gave the detailed method which is required to be followed before taking the sample milk. He has stated that the proper method is to mix the contents with the help of a plunger in a manner that any cream layer that forms on the top goes upto the bottom and it gets thoroughly mixed in the entire contents. He also stated that in case sample is not properly stirred, there can be possibility of sample being not representative of the entire bulk of milk because fat rises to the top and solids not fat content remain below the top cream. He placed on record the photostat copy of the relevant pages of text book of dairy chemistry for sampling of milk, butter and cheese. In this case, the milk fat was found 5.4% and milk solids not fat content found was 7.7%. Milk fat was thus more than prescribed standard and there was deficiency in the milk solids not fat content. Learned counsel for the petitioner submitted that when there is more of milk fat content in the sample milk and less of milk solids not fat content, the inference is not that there was addition of water in the milk. It could also be that the cow from the udders of which milk was drawn was not given proper feed or there was imperfect analysis on the part of the public analyst or there was improper sampling. It was submitted that in the complaint, it was nowhere mentioned that milk had been stirred before taking the sample and the Food Inspector stated only at the trial that milk had been stirred before sample was taken which is an improvement and which should not be taken into consideration. It was submitted that Food Inspector while appearing as prosecution witness did not state that he himself stirred the milk before the sample was taken. He only stated that accused had mixed milk before the accused who is a layman be aware of how he should stir milk and homogenise it before giving sample. Nonmention of the fact that milk was stirred before sample was taken cannot be fatal to the prosecution if prosecution is able to prove at the trial that milk was properly stirred and homogenised before the sample was taken.

Food Inspector should have stated that milk was thoroughly shaken and stirred clockwise and anticlockwise. In Chand Khan v. State of Punjab, 1991(3) RCR(Crl.) 240 , it was observed that where in sample of milk, milk fat content was 6.9% and silk solids not fat content was 8.1% and thus milk fat content was more than the prescribed standard and milk solids not fat was marginally deficient, in such a case, there is possibility of error in taking the sample. In Hans Ran v. State of Punjab, 1980(2) Food Adulteration Cases 396, it was observed that when fat content in the milk is much higher than the minimum prescribed standard, it is necessarily to be inferred that no water had been added to the milk and in such a case the mere circumstance that non fatty solid contained below the standard prescribed by the rules could justify the inference either that the cow from the udders of which the milk was drawn was not given the proper feed or that the Public Analyst''s report was erroneous, but not the inference that the milk in question, was not pure. In State of Punjab v. Som Nath, 1991(3) RCR(Crl.) 123 also it was held that where fat content found was much higher but milk solids not fat content was less than the prescribed standard, it cannot necessarily be inferred that milk was adulterated It could also be that no water had been added to the milk but the cow from the udders of which milk had been drawn was not being given proper feed.

In my opinion, the petitioner should have been given the benefit of doubt and acquitted.

For the reasons given above, this revision is accepted and the accused is acquitted of the charge framed against him. Fine, if paid, shall be refunded to him.

Revision allowed.