Ramesh Kumar vs State of Haryana

Ujagar Singh, J.

Ramesh Kumar appellant has filed this appeal against his conviction and sentence of three months'' rigorous imprisonment and a fine of Rs. 500/ under Section 7 of the Essential Commodities Act, 1955 for having been found extracting cream from milk in contravention of the provisions of clause 3 of Haryana Milk Products Control JUDGMENT 1984 (wrongly mentioned as Haryana Milk Products Control JUDGMENT 1985 by the trial Court, although raid is said to have been made on 21.6.1984 when 1985 JUDGMENT had not come into being).

The allegations are that the appellant was found extracting cream from the milk by A.S.I. Siri Chand PW 2 who was accompanied by Constable Mohinder Singh PW 1. During the raid the police party recovered the following articles :

Two kgs. of cream contained in the bucket Exhibit P6.

Machine Exhibit P1.

Tub Exhibit P2.

Gola Exhibit P3.

Wooden Takhat Exhibit P4.

Drum Exhibit P6 containing the cream along with the sealed parcel of the sample of the cream;

and the said articles were taken into police possession vide recovery memo. Exhibit PA duly attested by Constables Mohinder Singh and Sat Narain. During the trial PW 1 Mohinder Singh and ASI Siri Chand PW 2 were examined and they have supported the prosecution version. The finding of the trial Court is that the appellant was extracting cream from the milk.

I have gone through the record of the case and have heard counsel for the parties. The allegation that the appellant was extracting cream from milk cannot be believed because only cream was found to be present in the bucket and no quantity of milk was recovered by the raiding party specially when the main allegation is that the appellant was extracting cream from the milk. The allegation seems to have been made in view of clause 3 of the Haryana Milk Products Control JUDGMENT 1984 which reads as under :

"Clause 3. Prohibition of manufacture, sale, service or supply of milk products :

No person shall

(a) use the milk of any kind for the manufacture of cream, casein, skimmed milk, khoa, rubree, paneer or any kind of sweets in the preparation of which milk or any of its products, except ghee, is an ingredient;

(b) sell, serve, supply or cause to be sold, served or supplied any cream, casein, skimmed milk, khoa, rubree, paneer or any kind of sweets in the preparation of which milk or any of its products, except ghee, is an ingredient;

Provided that nothing in this clause shall apply to the use of milk :

(i) for the manufacture, sale, service or supply of ice cream, kulfi or kulfa in the preparation of which khoa, rubree or cream is not used;

(ii) for the manufacture, sale, service or supply of such milk and milk products as the State Government may, having regard to the needs of the Defence Force, by an order permit;

(iii) by such milk factories engaged in the processing of milk or factories registered or licensed under the Industrial Development and Regulation Act, 1951, for the manufacture of any type of fluid milk;

(iv) by the National Diary Research Institute, Karnal for the manufacture and sale of any milk products for the purpose of training and research; and

(v) for the manufacture of paneer, intended to be used in curries."

Mere possession of cream does not contravene any of the provisions of said clause 3 reproduced above. The only argument was that since cream was found, it should be presumed that milk was used for the manufacture of the said cream. There is no doubt that for extracting cream, use of milk is necessary. In this case no quantity of milk was found or taken into possession by the raiding party. In these circumstances, the appellant cannot be said to have used milk for the manufacture of cream. Such type of allegation can be corroborated only when at least some quantity of milk is found and in a case of two kgs. of cream, sufficient quantity of milk will be required. The argument of the learned counsel for the appellant that drum, Exhibit P5 could not contain more than 5 kg of milk is not controverted by the counsel for the State in the absence of which clause 3 cannot be said to have been contravened. On merits also the appellant is a resident of Baburpur and is not proved to be connected with the place of recovery. ASI Shri Chand PW 2 did not make any effort to join any in dependent person in the said party.

In these circumstances, the prosecution has failed to prove the charge against the appellant. I, therefore, accept this appeal, the judgment and order of conviction and sentence passed by the trial Court are set aside and the appellant is acquitted of the charges. Fine, if recovered, be refunded to the appellant.