Om Prakash vs State of Haryana

Satish Kumar Mittal, J.—This criminal revision is directed against the order dated February 23, 2000 passed by the Additional Sessions Judge, Kaithal, whereby the judgment of conviction dated November 10, 1998 and order of sentence dated November 11, 1998 passed by the Sub Divisional Judicial Magistrate, Guhla, convicting the petitioner u/s 16(1)(a)(i) of the Prevention of Food Adulteration Act, 1954 (hereinafter referred to as ''the Act'') and sentencing him to undergo rigorous imprisonment for one year and to pay a fine of Rs. 1,000/-, were upheld.

The petitioner is a milkman. On 20.2.1994, a sample of cow milk was drawn from a drum of 40 litres which was in possession of the petitioner for sale. One part of the sample was sent to Public Analyst, Haryana, Karnal for analysis. As per the report of Public Analyst, the sample was found to contain 6.5% milk fat as against the minimum prescribed standard of 4% and 8.2% milk solids not fat as against the prescribed standard of 8.5%. Thus the milk was found to be deficient in solids not fat to the extent of 3%. Accordingly, the Government Food Inspector filed a complaint against the petitioner for commission of the offence u/s 7 punishable u/s 16(1)(a)(i) of the Act. In the said complaint, the petitioner was convicted and sentenced as indicated above and the said conviction was upheld in appeal.

Learned Counsel for the petitioner raised two-fold argument. Firstly, that in the present case before taking the sample, the Government Food Inspector did not properly stir the milk and the same was not made homogeneous due to which the deficiency of milk solids not fat resulted into drawn sample. In support of his contention, learned Counsel relied upon the decision of this Court in Sawaran Singh v. State of Haryana 1997(3) R.C.R. 546 and Devi Dayal v. State of Haryana 1999(3) R.C.R. 16. Secondly, the deficiency in the sample is very marginal (only 3%) and that can be due to error and judgment in analysis or the poor food given to the cow. Such deficiency cannot be said to be adulteration, therefore, the benefit should be given to the accused. In support of his contention, learned Counsel relied upon a Division Bench decision of this Court in State of Haryana v. Inder Singh (1991)18 C.L.T. 241 : 1991(3) R.C.R. 116 and Ram Kumar v. State of Haryana 1999(4) R.C.R. 744.

I have heard the arguments of the learned Counsel for the parties on the aforesaid two issues. On first argument, undisputedly, the variation in the result of analysis is marginal. The contents of milk fat were found more, i.e., 6.5% against the prescribed standard of 4% and solids not fat 8.2% against 8.5%. The question for consideration is whether the said deficiency had occurred due to non or improper stirring of the milk. In the compliant (Ex.PF) it has been stated that the sample was drawn after mixing the whole contents and making them uniform. The Government Food Inspector while appearing in the Court as PW1 has also stated that he had properly stirred the milk in the drum and made it homogeneous before drawing the sample. However, in cross-examination, he admitted that he had used the measure of one litre for stirring the milk in the drum. Similarly, Dr. Usha Dogra (PW3), who was accompanying the Food Inspector at the time of drawing the sample, had stated that the Food Inspector stirred the milk in the drum by a spoon shape vessel.

Now the question arises is whether in a big drum containing 40 litres of milk, milk can be stirred properly and be made homogeneous by a measure of one litre or a spoon shape vessel. It is well settled that unless the milk is stirred clockwise or anticlockwise and made homogeneous, it cannot be said that it was a representative sample. In my opinion, 40 litres of milk contained in a big drum, having a small mouth, could not have been stirred properly so as to make it homogeneous by stirring the same with the help of a measure of one litre or a spoon shape vessel. Merely because the Food Inspector or the other witness of the prosecution stated that they had stirred the milk and made it homogeneous before taking the sample, is not itself sufficient unless the facts of a given case indicate that actually the milk was stirred and made homogeneous before taking the sample by adopting a proper method. In my opinion, ''it is not practicable at all that by a measure of one litre or a spoon vessel, 40 litres of milk in a big drum can be stirred. These facts indicate that the Food Inspector before taking the sample did not properly stir the milk clockwise or anti-clockwise and make it homogeneous. Therefore, the sample drawn by him was not a proper representative of the whole milk. In these facts and circumstances, the petitioner is entitled to the benefit of doubt. In similar circumstances, in Lekh Raj v. U.T. Chandigarh 1990 (1) R.C.R. 479 it was held that if the Inspector had stated that he stirred the milk with milk measure before taking the sample and on analysis it was found that the sample contained more fat but less solids, then on these facts the milk could not be said to have been properly stirred. In that case it was observed that milk should be stirred with deep probe or by transferring the milk to another vessel and stirring it in the process. Stirring of milk with milk measure would result in blowing it and separating fat contents from the milk solids. On those facts, the accused was given the benefit of doubt and was, thus, acquitted.

Similarly, a Division Bench of this Court in State of Punjab v. Balwant Singh (1992)19 Cri. L.T. 191 : 1992 (2) R.C.R. 57 has held that when the Food Inspector states on oath that the milk was stirred with measure of 1 Kg., it was not sufficient as there was no evidence that the milk was stirred clockwise and anti-clockwise and the milk measure had reached the bottom of drum and milk lying at the bottom was thoroughly mixed with upper layer of the milk in the drum. In that case also the milk was marginally deficient in milk-solids-not-fat. On these facts, in that case also the accused was acquitted. Similarly, in another case, i.e., Prem v. State of Haryana 1996(1) R.C.R. (Crl.) 54, the cow''s milk was found deficient in milk-solids-not-fat, though fat was in excess. There was marginal variation in the milk-solids-not fat than prescribed standard. On these facts it was held that it can be imputed to the Food Inspector having not stirred the milk properly so as to make it homogeneous and sample of milk cannot be said to be representative sample of the whole by any stretch, of imagination and, thus, the accused was acquitted.

In another case, in Sawaran Singh''s case (supra), this Court in similar circumstances has acquitted the accused. In that case the stirring of milk in a big drum was made by a measure which was not found to be sufficient and hencSe the stirring of the milkin that case was not found to be proper and making it homogeneous and, thus, the benefit of doubt was given to the accused and he was acquitted of the charge. Same view was taken by this Court in Devi Dayal''s case (supra). In that judgment, a Division Bench decision of this Court in State of Punjab v. Paramjit Singh 1992(19) C.L.T. 234 was followed in which it was observed as under:

That the Inspector in his statement in Court stated that he stirred the milk in one drum containing 20 Kgs. of cow''s milk and made it homogeneous. He has not cared to depose as to how and. in what manner he had stirred the milk so that he could corroborate the fact that it was made homogeneous before sample was taken. If 20 Kgs. milk is in a drum, atleast on this point the witness was required to state that he used a clean stick or the milk measurement and stirred the milk clockwise and anti-clockwise in such a way that the milk at the bottom was thoroughly mixed with that of the contents of the milk on its upper layer in the drum. If it was stated, so, then alone at this point it could be said that the milk was homogeneous and the sample was taken of the representative material.

In view of the aforesaid legal and factual position, in my opinion both the Courts below have not properly considered this aspect of the matter while convicting the accused. Therefore, in my opinion on the first submission made by the learned Counsel for the petitioner, it has been established in this case that the petitioner has to be acquitted by giving him the benefit of doubt. Consequently, the revision petition is allowed and the judgments of the Courts below are set aside. The conviction and sentence passed upon the petitioner are set aside and he is acquitted of the charge framed against him. Fine, if paid, shall be refunded to him.