Sanjiv Kumar vs State of Haryana

Dr. (Mrs.) Sarojnei Saksena, J.

Petitioneraccused has filed this petition under Section 482 of the Code of Criminal Procedure read with Article 227 of the Constitution of India for quashing the complaint Annexure P2.

The factual matrix of the case is that the complainant Food Inspector inspected the shop of the petitioneraccused on April 30, 1994, at 11 A.M. and took a sample of curd of cow milk from his shop as per the Rules. The sample was divided into three parts. Preservative was added and sample bottles were duly sealed. One such bottle was sent along with FourVII to the Public Analyst, Haryana, Chandigarh, for analysis, and remaining two sample bottles were deposited with the Local Health Authority on May 1, 1994. On analysis the Analyst found that the sample contained milk fat 6.2 per cent and milk solids not fat 6.5 per cent. Thus, it was deficient in the percentage of milk solids not fat. The complaint was lodged in the Court of the Chief Judicial Magistrate on June 6, 1994. On June 15, 1994, the accusedpetitioner submitted a petition under Section 13(2) of the Prevention of Food Adulteration Act (in short, the Act). On that very day this petition was decided and the Court ordered the concerned Authority to produce another bottle of sample, to be sent to the Central Food Laboratory for reanalysis. The case was adjourned to October 3, 1994. The petitioner was also directed to deposit the requisite fee of Rs. 40/ and to produce packing material. On October 3, 1994, petitioneraccused was not present in the Court. He sought exemption due to illness and the case was adjourned to December 9, 1994. On this date also the packing material was not supplied for sending the second sample to the Central Food Laboratory. On this date the Court passed the order that the case be tried as a warrant case and it was adjourned to March 24, 1995, for precharge evidence. On March 20, 1995, the petitioneraccused filed this petition in this Court and obtained stay order.

The petitioner has averred that since milk fat was in excess of the prescribed percentage and it was deficient only in milk solids not fat, on this ground alone the complaint is liable to be quashed. Secondly, as he was deprived of his valuable right under Section 13(2) of the Act of sending another sample for reanalysis, the complaint is liable to be quashed.

The complainant has filed reply to the petition and has controverted the allegations made therein. Relying on Full Bench decision of this Court in The State of Punjab v. Teja Singh, 1976 P.L.R. 433 it is averred that even if in the sample milk fat is in excess of the standard and it is deficient in milk solids not fat, on this basis alone the complaint cannot be quashed, because even then offence under Section 7/16 of the Act is prima facie made out and accused is liable to be convicted on the basis of such a report. It is also contended that no doubt the petitioner filed a petition under Section 13(2) of the Act for sending second sample for analysis to the Central Food Laboratory, but on that very day his petition was allowed. He was to perform certain duties like depositing the fees and submitting the packing material before the Court. The petitioner failed to discharge these duties and before second sample could be sent to the Central Food Laboratory the petitioner filed this Crl. Misc. petition and obtained stay order on March 21, 1995. Hence he cannot raise this objection now.

The petitioner''s learned counsel, relying on State of Punjab v. Som Nath, 1991(3) Recent C.R. 123 and Labh Singh v. Food Inspector, Union Territory, Chandigarh, 1994 FAJ 168, contended that in this case as percentage of milk fat was in excess of the prescribed milk fat percentage and it was deficient only in milk solids not fat, hence on this ground the accused cannot be prosecuted.

A Single Bench of this Court in Labh Singh''s case (supra) has held that as milk was found deficient in milk solids not fat by 1.9 per cent and excess in fat, there is a possibility of error in taking of the sample and on that basis the complaint was quashed. The Single Bench relied on Hans Raj v. State of Punjab, 1980 (2) FAC 396 and Som Nath''s case (supra). In Hans Raj''s case (supra) it was held "when the fat content in the milk is much higher than the minimum prescribed standard, it has necessarily to be inferred that no water had been added to the milk and that the nonfatty solids contained below the standard prescribed could justify that either the cow from the udders of which the milk was drawn was not given the proper feed or that the Public Analyst''s report was erroneous but not the inference that the milk in question was not pure." Hans Raj''s case was relied on by a Division Bench of this Court in Som Nath''s case (supra) where milk fat was 6.4 per cent as against prescribed 3 per cent and milk solids not fat were 8.5 per cent as against prescribed 9 per cent i.e. 0.5 per cent less than the prescribed standard.

A Full Bench of this Court in Teja Singh''s case (supra) answered three questions referred to it in the negative. First and third questions referred to the Full Bench were as below :

"(1) Whether it is permissible to add the percentages of the various constituents of material disclosed by the Public Analyst and thereafter to deduce a conclusion therefrom about the overall deficiency or otherwise of the milk from its prescribed standards ?

(2) ... ... ... ... ... ...

(3) Whether a negligible or marginal deviation from the prescribed standard laid down by the Act can be ignored and acquittal recorded on that basis ?"

This judgment is based on the decision of the Supreme Court given in Municipal Committee, Amritsar v. Hazara Singh, AIR 1975 SC 1087, wherein the observations made by their Lordships of the Supreme Court in Malwa Cooperative Mills Union Ltd. Indore and others v. Bihari Lal, 1973 F.A.C. 375 were explained and it was held that the observations made in Malwa Cooperative Mills Union''s case were obiter dicta. In Hazara Singh''s case (supra) the Full Bench decision of Kerala High Court in State of Kerala v. Parameswaran Pillai Vasudewn Nair, 1975(1) Crl.L.J. 97 was approved. In Parmeswaran Pillai''s case it is held :

"The standard fixed under the Act is one that is certain. If it is varied to any extent the certainty of a general standard would be replaced by the vagaries of a fluctuating standard. The disadvantages of the resulting unpredictability, uncertainty and impossibility of arriving at fair and consistent decisions are great. The Act does not provide for exemption of marginal or borderline variations of the standard from the operation of the Act. In such circumstances, to condone such variations on the ground that they are negligible is virtually to alter the standard itself fixed under the Act."

This Full Bench decision of this Court in Teja Singh''s case was followed by a Division Bench of this Court in Gopal Dutt v. State of Haryana, 1983 Chandigarh Criminal Cases 69 (HC) and also in State of Haryana v. Kallu, 1979 C.L.R. (P&H) 257. In Gopal Dutt''s case the Division Bench in view of Teja Singh''s case has overruled Hans Raj''s case (supra), which was relied by a Single Bench of this Court in Labh Singh''s case as well as by a Division Bench in Som Nath''s case.

Thus, the settled law is that if in the sample fat is found in excess of the minimum prescribed standard and milk solids not fat are below the prescribed standard, on this point alone the complaint cannot be quashed and the accused is not entitled to acquittal. It is also settled proposition of law that on the basis of marginal deviation from the prescribed standard the accused is not entitled to acquittal.

So far as the second point is concerned, the accusedpetitioner filed a petition under Section 13(2) of the Act on June 15, 1994, which was allowed on that very day. The Court ordered the concerned Authority to produce another sample in the Court, to be sent to the Central Food Laboratory. Thereafter the accused was required to deposit the fees by submitting treasury challan and to submit packing material so that the sample may be sent to the Central Food Laboratory for analysis. The petitioneraccused could not satisfy the Court as to when he did the needful. From the reply of the respondent, it is evident that for this compliance, the case was adjourned to October 3, 1994. On this date the accusedpetitioner was absent and the case was adjourned to October 9, 1994. On this date also the accused did not supply the packing material for despatch of the sample. On this date the Court passed the order that warrant trial procedure will be adopted and the case was adjourned to March 24, 1995, for precharge evidence. In the meantime, on March 20, 1995, the petitioner filed this petition and obtained stay order from this court on March 21, 1995. Hence on this count also the petitioner cannot seek quashment of the complaint, because it is a mixed question of fact and law which can be determined only after the prosecution and the accused adduced their evidence.

No other point is pressed before me.

Consequently, the petition, being meritless, is hereby dismissed.