Sanjay Kumar vs Haryana State

Harbans Lal, J.—This revision is directed against the judgment dated 1.2.2005 passed by the court of learned Additional Sessions Judge, Fatehabad whereby he dismissed the appeal filed by Sanjay Kumar accused against the judgment/order of sentence dated 5/7.2.2003 rendered by the court of learned Chief Judicial Magistrate, Fatehabad vide which he convicted and sentenced the said accused to undergo rigorous imprisonment for six months and to pay a fine of Rs. 1000/-under Section 16(1)(a)(i) read with Section 7(i) of the Prevention of Food Adulteration Act, 1954 (hereinafter to be referred to as the Act) and in default of payment of fine, to further undergo simple imprisonment for one month.

The factual matrix is that on 28.10.1993 at about 8.50 A.M. Megh Nath, Government Food Inspector (for short the G.F.I.) accompanied by S.P. Mimani, Medical Officer, General Hospital, Fatehabad intercepted the accused at Lajpat Nagar, Fatehabad and found him in possession of 35 Kgs of cow''s milk for public sale contained in two drums. The G.F.I. disclosed his identity and demanded sample of milk by giving a notice and purchased 750 mls of cow''s milk from the accused after mixing the contents of the milk in the drum against payment of Rs. 4/-. The said milk was divided into three equal parts and put in three dry and clean bottles, which were stoppered, labelled, wrapped and sealed as per provisions of the Prevention of Food Adulteration Rules. One part of the sample, was sent to the Public Analyst, Haryana Chandigarh for analysis, while the other two were deposited with the Local Health Authority. On receipt of Public Analyst''s report, the complaint was lodged in the court for trial of the accused.

After recording of pre-charge evidence, the accused was charged under Sections 7 read with Section 16(1)(a)(i) of the Act, to which he did not plead guilty and claimed trial. After examining three witnesses, the evidence was closed by the complainant.

When examined u/s 313 of Cr.P.C., the accused denied all the incriminating circumstances appearing in the prosecution evidence against him and pleaded innocence as well as false implication. In his defence, he did not adduce any evidence.

After hearing the Government Food Inspector, the learned defence counsel and examining the evidence on record, the learned trial Court convicted and sentenced the accused as noticed at the outset. Feeling aggrieved therewith, he went up in appeal which was dismissed by learned Additional Sessions Judge, Fatehabad. Being undaunted and dissatisfied with the judgments recorded by the courts below, he has preferred this revision.

I have heard the learned Counsel for the parties, besides perusing the record with due care and circumspection.

The short point raised by the learned Counsel for the petitioner is that it is a case of marginal deficiency in milk solids not fat and it is well settled law that such deficiency can be attributed to some natural factors and if contents of milk fat is more than the minimum prescribed then the sample cannot be said to be adulterated. In the present case, milk sold have been found to be much more than prescribed standard i.e. 9.5 % and the milk solids not fat have been found to be 7.7% against the required standard of 8.5%. The learned Courts below have lost sight of these facts. He has sought to place abundant reliance upon the observations rendered in Isham Singh v. State of Haryana 2009 (1) RCR Cri692.

The learned State counsel could not controvert this contention in a successful manner.

I have given a deep and thoughtful consideration to these submissions.

As per Ex.PD Public Analyst''s report, the percentage of milk solds not fat was found to be 7.5 against 8.5 whereas the percentage of milk fat was found to be 9.5 against 4.0. Obviously, the milk fat is much more than prescribed standards impliedly showing that there is no addition of water or any other thing as with the addition of water or anything in the milk, the milk fat will naturally come down. In the complaint Ex.PE, it has been merely mentioned that the cow''s milk was purchased after stirring and making homogeneous by mixing the whole contents properly. The complaint is absolutely silent as to how the milk was stirred by the Food Inspector. In Form Ex.PC/1 it has been simply mentioned that the milk was stirred properly in the container. It has no where been mentioned that the contents of the drums were mixed and made homogeneous with long rod before the sample was taken. Admittedly, no deficiency has been found in the milk fat and the same has been found in milk solids not fats. The deficiency in the milk solids not fats is negligible. The percentage of milk fat and milk solids not fat depends upon the properly feeding and health of the animal. There is a problem of non-availability of nourishing and sufficient quantity of foods for the cattle, both green and otherwise. The quantity of food given to an animal affects to certain extent, the quantity and quality of milk produced by it. Apparently, it is not possible to take out non-fatty solids from milk without reducing or affecting the fat contents as ruled in Isham Singh''s case (supra). As such, it cannot be said that the petitioner had intentionally caused adulteration in the milk. In State of Punjab v. Mohinder Singh 1991 (3) RCR (Criminal) 304 also it has been laid down that when the milk is found deficient in milk solids not fat, it cannot be said that the milk is adulterated, but only inference that can be drawn is that the cow was not properly fed. In the case in hand, the percentage of milk fat is far above the prescribed standard. Thus, as already noticed, it rules out the possibility of adding of water or anything else in the milk.

As a sequel of the above discussion, the judgments recorded by both the courts below are unsustainable in the eyes of law. Sequelly this petition is accepted. The impugned judgments and orders are set aside and the petitioner is acquitted of the charged offence. The fine if deposited shall be refunded to him.

Since the petition has been decided, all pending Criminal Miscellaneous,if any, also stand disposed of.