Prem vs State of Haryana

P.K. Jain, J.

The petitioner was tried and convicted for an offence punishable under section 16(1)(a)(i) of the Prevention of Food Adulteration Act, 1954 (hereinafter called ''the Act'') and sentenced to undergo rigorous imprisonment for six months and to pay a fine of Rs. 1,000/ and in default of payment of fine to undergo further imprisonment for six months by the Chief Judicial Magistrate, Hissar, vide his judgment dated 1.6.1994 and order dated 2.6.1994. The appeal filed by the petitioner against his conviction and sentence did not find favour with the Sessions Judge, Hisar, and the same was dismissed vide order dated July 17, 1995. Feeling aggrieved, the petitioner has come to this Court under section 401, Code of Criminal Procedure.

The facts giving rise to the prosecution case are that on 24.1.1981, Shri Teja Singh, Government Food Inspector, along with Dr. Suresh Goyal, Medical Officer, Hisar, intercepted the petitioner near Police Lines at Hisar, when he was found to be in possession of 15 Kgs. of cow''s milk in a drum in his possession for public sale. After disclosing his identity and intention, the said Food Inspector purchased 750 Mls. of cow''s milk on payment of Rs. 4/ by way of sample. The said quantity was divided into 3 equal parts; put into three dry and clean bottles after adding 20 drops of preservative in beach bottle. One of the three samples, thus obtained, was sent to the Public Analyst, Haryana, who reported the said sample to be deficient in milk solids not fat by 7.0% leading to the prosecution of the petitioner culminating in his conviction, as stated above.

Notice of motion was issued to the State. Record of the trial Court has been received. Since the matter was short in nature, arguments have been heard.

Shri Ram Niwas Kush, learned counsel for the petitioner, while assailing the judgment of the two courts below has argued that the contents of the drum were not properly stirred and the sample taken cannot be said to be a representative sample in the eyes of law and that as per the report of the Public Analyst, the milk fats were found more than the prescribed standard but the milk solids not fat were found deficient by a negligible margin. It has been further contended by the learned counsel that the marginal deficiency in milk solids not fat may be due to the fact that the cows were not properly fed or there might have been some error in analysing the sample or that there was no proper representative sample. Thus, it has been argued that if the milk solids not fat have been found to be marginally less than the prescribed limit, the accused cannot be held to be liable and convicted under the Act.

On the other hand learned State counsel has argued that the Act does not provide for exemption for marginal or border line variations of the standard from the operation of the Act and the Act does not make distinction between cases coming under it on the basis of the degree of adulteration nor does it provide for aggravation of offence based on the extent of contamination. It is thus contended that the offence and punishment are the same where the adulteration is great or small and even marginal or border line variation to the prescribed standard are not exempted from the operation of the Act.

I have given my careful thought to the respective arguments advanced by the learned counsel for the parties.

It is not disputed that the sample must be collected strictly according to the procedure prescribed by the Act and the Rules made thereunder. If the sample collected was not representative of the entire substance, serious prejudice to the accused would be presumed to have been caused and the conviction of the petitioner on the basis of such a sample would not be upheld. When a sample of milk is to be taken from a drum, the contents should be stirred and made homogeneous. If this procedure is not adopted, the same would be fatal to the prosecution.

In the present case the complaintExhibit PG is on a printed proforma, containing the averments that the sample was purchased ''after mixing the whole contents properly and made uniform for analysis''. In his statement on oath as PW 1, Shri Teja Singh, Government Food Inspector, has deposed that the milk in the drum was properly stirred. Dr. Suresh Goyal, Medical Officer (PW 3) has deposed that the sample was taken after the milk in the drum was properly shaken (ACHHI TARAH HILA JULA KAR). From the complaint and the testimony of the Government Food Inspector Shri Teja Singh it is not revealed as to how the milk in the drum was stirred and made homogeneous. The method for stirring the contents of the drum as stated by Dr. Suresh Goyal (PW 3) cannot be said to be a proper method of stirring the milk properly and making it homogeneous so as to draw a representative sample of the whole. This question was examined by a Division Bench is this Court in The State of Punjab v. Paramjit Singh, (1992) XIX Cr. L.T. 234, and in para 5 of the judgment the following observations were made :

". . . 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, at least 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 anticlockwise 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 above observations, it becomes clear that Food Inspector in the present case had not stirred the milk in the drum in a proper manner so as to make it homogeneous to enable him to draw a representative sample. There is no evidence on the record that the milk at the bottom of the drum was thoroughly mixed with that of the contents of the milk on its upper layer in the drum. This is a serious flaw in the prosecution case.

According to the report of the Public Analyst (Exhibit PF), it is evident that the sample was found to contain milk fat 5.3% and milk solids not fat 7.9%. According to the standard in respect of cowmilk laid down in Appendix ''B'' vide clause A. 11.01.11, the minimum percentage regarding milk fat has been prescribed to be 4% and that of milk solids not fat to be 8.5%. Thus, in the present case the milk fats have been found to be 1.3% in excess, and milk solids not fat to be 0.6% deficient of the minimum standard prescribed in Appendix ''B'' to the Rules framed under the Act. In State of Haryana v. Inder Singh, 1991(3) Recent Criminal Reports 116 : (1991) XVIII Cr. L.T. 241 , a Division Bench of this Court, under somewhat similar situation had made the following observations:

". . . that the report of the Public Analyst in the instant case that the sample contained milk fat 5.8. per cent and milk solids not fat 8.6. per cent will show that the milk was deficient only by 4 per cent in milk solids not fat of the minimum prescribed standard. The fat content found in the unidentified milk was much higher than the minimum prescribed by the rules so it is to be inferred that no water had been added to the milk and the mere circumstances that nonfatty solids contained below the standard prescribed by the rules could further justify the inference either that the cow from the udders of which the milk was drawn was not given the proper food or that the report of the Public Analyst was erroneous but not the inference that the milk in question was not pure."

This view was reiterated recently by another Bench of this Court in Darshan Lal v. State of Haryana, 1995 (1) C.L.R. 568. This very views has been expressed by the Rajasthan High Court in Heera Singh v. State of Rajasthan, 1992 F.A.J. 81.

In the present case, the milk fat has been found to be in excess of the prescribed limit whereas milk solids not fat have been found to be deficient by a margin of 0.6.%.

Although I agree with the learned State counsel that the Act does not make a distinction between cases coming under it on the basis of the degree of adulteration and an item of food is either adulterated or not, nor does it provide for exemption of marginal or border line variation on the standard from the operation of the Act, yet in view of my finding on the first plea recorded above, this variation of 0.6% in milk solids not fat can be easily imputed to the Inspector having not stirred the milk properly so as to make it homogeneous, and the sample taken by him cannot be said to be a representative sample of the whole by any stretch of imagination.

As a result of the reasons mentioned above, this revision petition succeeds. The conviction and sentence of the petitioner are hereby set aside and he is acquitted of the charge under section 16(1)(a)(i) read with Section 7 of the Prevention of Food Adulteration Act. The petitioner shall be released forthwith, if not wanted in any other case.