Ram Kishan vs State of Haryana

P.K. Jain, J.

This petition filed under Section 401 of the Code of Criminal Procedure is directed against the order dated 22.5.1987, passed by the Additional Sessions Judge, Jind, whereby the conviction and sentence of the petitioner recorded by the Sub Divisional Judicial Magistrate, Safidon, by his judgment/order dated October 7, 1986 for an offence under section 16(1) (a)(i) of the Prevention of Food Adulteration Act, 1954 (hereinafter referred to as ''the Act'') have been confirmed. The petitioner has been 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 imprisonment for three months.

The necessary facts for the disposal of this petition are that on 15.3.1984, the Food Inspector accompanied by Dr. R.K. Saini, had intercepted the petitioner while carrying about 25 Kgs. of cows'' milk in a drum for sale. The Food Inspector purchased 660 Milks. of mls. on payment. The milk was divided into 3 equal parts and put into 3 dry and clean bottles. Each bottle was properly stoppered, secured, fastened, wrapped and sealed. One of the samples was sent to the Public Analyst, who found the sample of milk to be adulterated for the reason that the milk fats were 20% deficient and milk solids not fat were 5% deficient of the minimum prescribed standard. On receipt of the report of the Public Analyst, the Food Inspector filed a complaint against the petitioner, which resulted in his conviction. The appeal against his conviction and sentence did not find favour with the Additional Sessions Judge, Jind, and the same was rejected by the impugned order.

I have heard the counsel for the parties and have perused the record.

Shri S.K. Jain, Advocate, learned counsel for the petitioner, has argued that there was no averment in the complaint that before taking sample of the milk in the drum, the same was stirred and made homogeneous, which omission was fatal to the prosecution. It has been further argued by the learned counsel that even at the trial, the prosecution did not prove as to how the milk in the drum was stirred and made the sample, alleged to have been taken, to be representative sample of the whole. It is, thus, argued that the conviction and sentence of the petitioner are liable to be set aside simply for this reason. In support of this plea, the learned counsel has placed reliance on certain decisions of this Court rendered in State of Punjab v. Inder Singh, 1984(1) FAC 166; State of Haryana v. Rameshwar, 1987(1) FAC 2; and Prem v. State of Haryana, 1996(1) RCR 152.

On the other hand Shri S.K. Hooda, learned Assistant A.G. while appearing for the State of Haryana/complainant, has argued that mere omission of the fact of stirring the milk in the complaint is not fatal and that positive evidence regarding stirring of milk and making the same homogeneous before taking the same has been adduced during the trial. It has been further argued by the learned Assistant A.G. that it was for the petitioner to stir the milk and thereafter to give the sample. In support of this plea, reliance has been placed upon a judgment of this Court rendered in State of Haryana v. Kirpa Ram, 1985(II) FAC 39.

I have given my careful thought to the respective arguments advanced at the bar.

It cannot be disputed that the sample taken should be representative of the whole quantity of the article of food from which it is taken. Where the constituents of food are of different specific gravity, a proper mixing and stirring is necessary in making the sample more representative. In Rameshwar''s case (supra) the Division Bench of this Court explained this aspect as under :

"The law is well settled that before milk sample is taken, which is a 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, are mixed in it, are lighter in weight and it does not remain mixed up with the remaining liquid for a very long time. If the milk is allowed to stand for some time, its fat content rises to the top and accummulates there. If a sample is taken without mixing the milk thoroughly or, in other words, making it homogeneous then the fat being at the top, its contents will not be in the same quantity in the lower portions as those are in the upper part. It is for this reason that the courts have laid down that before taking the sample of milk it has to be made homogeneous so that the sample remains representative."

Reliance was placed upon an earlier decision of a Division Bench of this Court in State of Punjab v. Jagan Nath, Crl. Appeal No. 502DBA of 1984. decided on May 30, 1986, wherein it was held 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 Public Analyst is misleading regarding the contents of fat and solids not fat. 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 milkvendor. A similar view was expressed by this Court in Prem''s case (supra).

It may also be pointed out that in Rameshwar''s case (supra), there was no mention in the complaint that the milk was stirred before the sample was taken. While dealing with this aspect, the Division Bench pointed out that necessary facts which constitute an offence have to be mentioned in the complaint. If some essential fact or requirement which is prerequisite before doing an act is not mentioned in a complaint, the accused has the right to say that the prosecution has made an improvement in its case. The practice prevalent in the States of Punjab and Haryana to fill in the blanks of printed complaints and to file the same under the Act was highly deprecated. A similar view was expressed earlier by a Division Bench in the case of Jagan Nath (supra).

Turning to the case in hand, admittedly there is no averment in the complaint that the milk in the drum was stirred and made homogeneous before taking the sample. In other words, if we go by this complaint, then the sample taken by the Food Inspector cannot be said to be a representative sample of the contents of the drum and for this simple reason no conviction can be based upon the report of the Public Analyst.

It is correct that when the Food Inspector came into the witnessbox as PW1, he had stated that the milk was properly mixed before taking the sample. Similar is the statement of Dr. R.K. Saini (PW3). It is nowhere stated by either of these two witnesses as to how the milk was stirred. When the milk is contained in a drum, the same should be stirred and made homogeneous with a clean strick or a milk measurement or a plunger. In State of Punjab v. Paramjit Singh, (1992) XIX L.T. 234, a Division Bench of this Court in para 5 of the judgment made the following observations :

"............. 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 before the 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 strick or the milk measurement and stirred the milk clockwise and anticlockwise in such a way that 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 the present case, admittedly there is no evidence on the record that the milk was stirred in accordance with the method laid down by the Division Bench in the aforesaid case. In other words, the sample taken by the Food Inspector and analysed by the Public Analyst cannot be said to be a representative sample of the contents of the drum stated to be in the possession of the petitioner. This, in itself, is a serious flaw in the prosecution case and the conviction on the basis of the analysis report of such a sample is not sustainable in the eyes of law.

The decision in Kirpa Ram''s case (supra), relied upon by the learned Assistant A.G. has no application to the facts of the present case. In that case, the Division Bench was satisfied that there was evidence on the record that the milk had been stirred by the milkvendor before he offered it for sale to the Food Inspector, but there is no such evidence in the present case.

As a result of the above discussion, this petition is allowed. The conviction and sentence of the petitioner are hereby set aside and he is acquitted of the charge under Section 16(1)(a)(i) of the Act. The petitioner is already on bail. His bail bond is cancelled and surety stands discharged.