Ratti Ram vs State of Haryana

A. S. Nehra, J.

The petitioner was convicted under Section 16(1)(a)(i) of the Prevention of Food Adulteration Act, 1954, and was 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 rigorous imprisonment for three months, passed by the Chief Judicial Magistrate, Gurgaon, on 141985. The appeal filed by the petitioner was dismissed by the Additional Sessions Judge, Gurgaon, on 1671986. Hence, this revision petition.

On 421986, H. R. Khanna, Government Food Inspector accompanied by Shri B. S. Dahiya intercepted the petitioner and found in his possession six cans containing 25 mounds of mixed cow and buffalo milk for sale. The Food Inspector disclosed his identity and took a sample by serving notice Ex. PA. He purchased 660 ml. of milk from a can containing about 20 litres of milk for Rs. 1.70 paise, against receipt Ex. PB. The milk purchased was divided in three equal parts and put in three dry and clean bottles after adding requisite quantity of formaline as preservative in each bottle. The bottle were labelled, stoppered, securely fastened, twined and wrapped in a strong thick paper with signatures of the Local Health Authority, Gurgaon. The bottles were sealed with distict seals at the spot. The thumbimpressions of the petitioners were taken on the slips on the bottle and memoranda prepared. One sealed bottle was sent in a sealed cover along with two copies of memoranda on for VII, to the Public Analyst, Haryana, by a railway parcel. The other two bottles with two copies of memoranda on Form VII bearing seals'' impressions were handed over to the Local Health Authority on 521998. A copy of the memoranda and the Specimen impressions of the seals used to seal the packets was sent to Public Analyst, Haryana, Chandigarh, separately. The sample was taken in the presence of Dr. B. S. Dahiya, Deputy Chief Medical Officer, as PW2. On receipt of the report of the Public Analyst, (Ex. PD), milk fat was found 13% deficient of the minimum prescribed standards.

The Government Food Inspector, H. R. Khanna (PW1) and Sh. B. S. Dahiya, (PW2) had supported the prosecution case.

The statement of the accused under Section 313 of the Code of the Criminal Procedure was recorded in which he denied the allegations levelled against him. He asserted that he was a tempo driver; that on relevant day, he was going in his tempo No. HRU 2236 towards Rohtak for getting the same passed but on way, he had noticed Mahabir carrying milk in cans on his motor cycle, since he was known to Mahabir, therefore, the Government Food Inspector obtained his thumb impressions as a witness/surety. Thus according to the accused the sample was taken in fact from Mahabir and not from him. In defence, he examined Raja Ram DW 1, Laxmi Narain DW 2, H. R. Khanna, DW 3, Ram Lal, DW 4 and Mahabir Parshad, DW 5.

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 and do not have the same specific gravity and weight as the other constituents have. Fat, for example, is one which differs in some ways from the other constituents of the milk. It is 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 portion 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.

In the case in hand, evidence of both the witnesses is that before the milk sample was taken, it was stirred and made homogeneous. The complaint does not contain any reference about the stirring of the milk. There is no wrong that before the sample of milk is taken by the Food Inspector, he must ensure that the milk has been made homogeneous: otherwise the report of the analyst is bound to be misleading regarding the contents of fat and solids not fats. While assessing the value of the report it becomes the duty of the Court to ascertain if the sample of the milk had been properly taken by the Food Inspector. The proper sample would only be if the milk is made homogeneous by stirring. 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 milk vendor. To come to a conclusion that the milk was made homogeneous when the sample was taken the contents of the complaints have necessarily to be looked into. In case the factum of stirring of the milk is missing in the complaint, it is open to the Courts to entertain would on the statements of the Food Inspector and his witnesses in Court in respect thereof.

The circumstances are to be proved by the complainant. There is no proforma prescribed for the drafting of the complaints. Necessary facts which constitute an offence have to be mentioned in the complaints. If some essential facts or essential requirement which are prerequisite before doing an act is not mentioned in a complaint, then the accused, in given cases, has the right to say that the prosecution has made an improvement in its case. It is a practice in the States of Punjab and Haryana that the Food Inspectors have got a form of complaint printed. They simply fill in the blanks in accordance with the facts of the cases before filing those in Court. Such a practice is not healthy such proformas are not comprehensive to contain all the facts of every conceivable case. It is high time that the Food Inspectors realize that such printed proformas which are deficient in certain aspects should not be used for filing the complaints. Almost in every case, which I have come across, the mention of the stirring of the milk is singularly absent. In many circumstances, as in this case, this fact assumes importance to know whether the Food Inspector has performed his duties appropriately and in accordance with the accepted rules of taking samples. It is very easly for a witness to say such a fact at the time of evidence. If this improvement is allowed in every case, then a day will come when the Food Inspectors will omit to mention in the complaints how the sample was taken how and what type of preservative and what quantity of it, was added to the sample. I, therefore, do not feel inclined to grant this latitude to the Food Inspectors to make improvements in the case under the Prevention of Food Adulteration Act as it has been done in this case by mentioning only at the evidence stage about the stirring of the milk. On evidence, I find that it is a case of deliberate improvement.

For the foregoing reason, this revision petition is allowed and the conviction and sentence of the petitioner is set aside. Fine, if recovered, shall be refunded to the petitioner.