Raj Kumar vs State of Haryana

Harbans Singh Rai, J.

The petitioner was convicted by Shri P.L. Ahuja, Chief Judicial Magistrate, Jind, under Section 16(1)(a)(i) read with Section 7 of the Prevention of Food Adulteration Act and sentenced to undergo R.I. for eight months and to pay a fine of Rs. 1000/; in default of payment of fine further R.I. for five months vide his order dated October 14/15, 1985. His appeal against the conviction and sentence was dismissed by Shri M.S. Nagra, Additional Sessions Judge, II, Jind, vide his order dated February 14, 1986. Feeling aggrieved, he has filed this revision petition.

The prosecution case is that on October 16, 1984 at about 9 a.m. Moti Ram, Government Food Inspector, Jind, intercepted petitioner Raj Kumar in the presence of PWs. Dr. S.P. Aggarwal and Kuldip Singh and found him in possession of 20 kgs. of cow''s milk in a drum. The Food Inspector disclosed his identity, served a notice on him and took a sample of milk. The report of the Public Analyst established that the contents of the sample were deficient in milksolid not fat than the minimum prescribed standard. The petitioner was challaned, tried and convicted and sentenced, as mentioned in the earlier part of the judgment.

I have heard the learned Counsel for the parties. The learned Counsel for the petitioner has challenged the conviction primarily on the ground that at that time of the taking of the sample by the Food Inspector, the milk was not stirred and thus made homogenous and this ommission on the part of the Food Inspector had led to unsatisfactory analysis by the Public Analyst. It is further contended that the fat contents were found to be 4.9 per cent which is more than the required percentage of 4 per cent. Milks polices, not fat, were found to be 7.3 per cent which are slightly less than the required 8.5 per cent.

The learned Counsel for the petitioner has cited a number of judgments of this Court wherein it has been held that nonmentioning of stirring the milk in the complaint is a circumstance which goes against the prosecution, as the statement of the Food Inspector that he did stir amounts to an improvement.

Although in the present case, the Food Inspector has stated in his statement that he did stir the milk as the time of taking of the sample, but the fact that this is not mentioned in the complaint cannot be ignored. A complaint is the foundation on which the prosecution stands and nonmention of such an important requirement shakes the entire prosecution and it becomes very difficult to accept the subsequent statement of the Food Inspector to the effect that he did stir the milk. If he had stirred the milk at the time of taking the sample, the contents of the milk fat might not have been 4.9 per cent. It is a matter of common knowledge that if the milk is not stirred properly, fats accumulate at the top. In the circumstances of the case, when stirring is not mentioned in the complaint and milk fat is more than the prescribed standard, I am of the view that the petitioner, is entitled to the benefit of doubt. I, therefore, accept the revision and set aside the impugned judgments. The petitioner is acquitted of the charge.

JUDGMENT accordingly.