Ram Kumar vs State of Haryana

M.L. Singhal, J.

The prosecution case is brief is that on 27.9.1998, Shri Raj Kumar, Govt. Food Inspector, authorised to exercise the powers of the Food Inspector under the Prevention of Food Adulteration Act, 1984 (in short the Act) to seize samples of foodstuff from their vendors, along with Dr. N.K. Mundra, Medical Officer, Civil Hospital, Bahadurgarh intercepted Ram Kumar (accused) petitioner who was carrying 16 litres of cow milk in a drum for sale to the public. It was about 5 p.m. then. One Joginder Singh of Kathmandi, Bahadurgarh was also joined as witness. At the outset, the Food Inspector disclosed his identity to the accused and expressed his intention to seize sample of cow milk from him with a view to have the same analysed from Public Analyst Haryana. He gave notice in Form VI to this effect to the accused. After making the cow milk lying in the drum homogeneous, he purchased 750 ml. of cow milk from him as sample on payment of Rs. 3.75 to him against receipt. He divided milk so purchased in 3 equal parts. He put each of those parts in dry, clean and empty bottles by way of preservative. Bottles were stoppered tightly and sealed on the neck with the seal of the Medical Officer. Bottles were labelled and wrapped in a strong thick paper. Ends of the paper were pasted with gum. Paper slip bearing code number carrying the signatures of the Local Health Authority, Bahadurgarh was pasted on each bottle from top to bottom. Each bottle was secured by means of strong twine and sealed with the seal of the Medical Officer and the Food Inspector at the spot. Thumb impression of the accused was obtained on each bottle in a manner that part of the thumb impression appeared on the paper slip and part on the wrapper of the bottle. Accused thumb marked notice Ex.PB and spot memo Ex.PC. Memorandum in form No. VII was prepared at the spot. One sealed bottle along with one copy of form No. VII was sent to the Public Analyst, Chandigarh for analysis in a sealed packet through railway parcel. One copy of the memo No. VII bearing seal impression of the seal used was sent to the Public Analyst through registered post separately. Two sealed bottles alongwith 2 copies of memo form No. VII bearing seal impression were deposited in sealed packet with the local health authority, Bbahadurgarh. Public Analyst, Haryana, vide his report Ex.PD found that the sample was adulterated. Milk solids not fat content was found deficient by 3.5% of the minimum prescribed standard. As the sample milk was found deficient not conforming to the standards of purity as laid down in the Act, complaint under Sections 7/16(i)(a)(i) of the Act was instituted against the accused in the Court. Accused was charged under Section 7/16(i)(a)(i) of the Act. He pleaded not guilty to the charge and claimed trial.

On the conclusion of the trial, Sub Divisional Judicial Magistrate, Bahadurgarh found the charge proved against the accused under Section 7/16(i)(a)(i) of the Act vide order dated 5.2.1996 and convicted him thereunder. Vide order dated 6.2.1996, the accused was sentenced to undergo RI for 6 months and to pay fine of Rs. 1,000/, in default to undergo further RI for 2 months under Section 16(i)(a) of the Act.

Aggrieved from the order dated 5/6.2.1996 of Sub Divisional Judicial Magistrate, Bahadurgarh accused went in appeal to the Court of Sessions. Learned Additional Sessions Judge dismissed the appeal vide order dated 13.3.1999.

Still not satisfied Ram Kumar has come up in revision to this court and has prayed for the setting aside of the order of Additional Sessions Judge, Jhajjar dated 1.3.1999. He has prayed for his acquittal in consequence thereof.

I have heard the learned counsel for the petitioner, learned AAG, Haryana and have gone though the record.

Learned counsel for the petitioner submitted that there is no evidence that milk was stirred and made homogeneous before sample was taken. It was submitted that there is no allegation in the complaint that sample was made homogeneous nor there is any evidence that the sample was made homogeneous and properly stirred. It was submitted that the Food Inspector has nowhere stated with what instrument he had stirred milk and it was incumbent upon the Food Inspector to have stated that he used a clean stick or the milk instrument and stirred the milk clokwise and anticlockwise in a way so that milk at the bottom was thoroughly mixed. It was submitted that in this case, the Food Inspector has only stated that he stirred the milk clockwise and anticlockwise. In the State of Punjab v. Balwant Singh, 1992(2) RCR 57 , there was usual recital in the complaint that milk had been stirred and homogenised before sample was taken and there was only statement of Food Inspector that milk had been stirred with measurement of 1 kg. and made homogeneous before the sample was taken. Food Inspector had stated that the milk had been stirred and homogenised with measure of 1 kg. Hon''ble D.B. of his Court held that there should have been evidence on record that milk was stirred clockwise and anticlockwise and milk measurement had reached the bottom of the drum and the milk lying at the bottom was thoroughly mixed with the upper layer of the milk in the drum. Learned counsel for the petitioner submitted that there was marginal deficiency in the sample in milk solids not fat content and this marginal deficiency is attributable to the notstirring of the milk properly by the Food Inspector. In support of this submission, he drew my attention to Prem v. State of Haryana, 1996(1) RCR 152 where the sample of cow milk was found deficient in milk solids not fat content by 7.0% of the minimum prescribed standard and the Hon''ble Single Bench held that deficiency in milk solids not fat content to the extent of 7.0% is not attributable to the addition of water to the milk by its vendor but was attributable either to imperfect analysis by the Public Analyst or to the poor feed given to the cow from the udders of which milk was drawn.

In the instant case, the Public Analyst found milk fat content as 4.8% and milk solids not fat content to the extent of 8.3% whereas milk fat content should have been 4.0% and milk solids not fat content should have been 8.5% in the cow milk per the standards laid down in the Act/Rules framed thereunder. In State of Haryana v. Indar Singh, 1991(XVIII) Crl. L.T. 241, a Division Bench of this court made the following observations :

".......... that the report of the Public Analyst in the instant case that the sample contained milk solids not 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 (sic)(mixed) to the milk and the mere circumstance 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 feed 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 in Darshan Lal v. State of Haryana, 1995(1) C.L.R. 568. Rajasthan High Court also took this view in Hira Singh v. State of Rajasthan, 1992 F.A.J. 81. In the State of Punjab v. Paramjit Singh, 1992 XIX Cr.L.T. 234, the following observations were made by a Division Bench of this Court :

"......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."

Learned counsel for the petitioner submitted that when there is no evidence that milk was properly stirred and homogenised and the Public Analyst found milk deficient only in milk solids not fat content to the tune of 3.5% whereas there was higher percentage of milk fat content in the sample milk, the sample of milk cannot be said to have been adulterated or not conforming to the standards of purity laid down in the Act and the marginal deficiency in the milk solids not fat content was attributable either to imperfect analysis by the Public Analyst or to the poor feed fed to the cow from the udders of which this milk was drawn.

For the reasons given above, this revision succeeds and is accepted. Judgments of the courts below are set aside. Petitioner is acquitted of the charge framed against him. Fine, if paid, shall be refunded to him.