Sat Pal vs State of Haryana

M.L. Singhal, J.

Sat Pal petitioner was convicted and sentenced to undergo R.I. for six months and to pay a fine of Rs. 1,000/. In default of payment of fine to undergo further R.I. for three months under Section 16(1)(a)(i) read with Section 7 of the Prevention of Food Adulteration Act, 1954 vide order dated 27.2.1986 by Sh. P.C. Goel, Sub Divisional Judicial Magistrate, Kaithal.

His appeal against conviction and sentence was dismissed by Sh. S.K. Jain, Sessions Judge, Kurukshetra vide order dated 9.12.1986. By way of this revision petition, he has challenged the conviction and sentence recorded by the aforesaid two Courts below against him before this Court.

According to the prosecution, on 8.1.1982 Sh. Moti Ram, Government Food Inspector, Kurukshetra authorised to take samples of foodstuff from their vendors with a view to have them analysed from the Public Analyst intercepted Sat Pal at Kaithal bypass with a drum containing 20 kilograms of cow milk for sale on the carrier of the cycle being pedalled by him. After disclosing to him his identity that he was Government Food Inspector authorised to seize samples of foodstuff from their vendors, he expressed his intention to purchase 660 mls of cow milk from him on payment of necessary price to him, through notice Exhibit PA which was thumb marked by Sat Pal and attested by Dr. Surjit Lal and Dr. Moti Ram. At that time, Dr. Surjit Lal, Medical Officer Incharge PHC Siwan and Arjun Lal were with him. Thereafter, the milk was thoroughly stirred and homogenized. Sat Pal supplied him 660 mls cow milk on receipt of Rs. 1.30 from him through receipt Exhibit PB which was thumb marked by him and attested by Arjun Lal and Dr. Surjit Lal. Moti Ram divided that milk into 3 equal parts and put it into three dry and clean bottles. He put 18 drops of formalise each in each bottle as preservative. Bottles were stoppered, securely fastened and then wrapped in strong thick paper which was secured by means of paper strips bearing code number and twine. Bottles were sealed. One sealed sample bottle was sent to the Public Analyst, Haryana, Chandigarh and other sealed bottles were handed over to the local Health Authority in his office. Copy of memorandum and specimen impression of seal used was sent to the Public Analyst, Chandigarh separately by registered post. Proceedings taken at the spot were recorded in memo exhibit PC by Sh. Moti Ram which was attested by the PWs and thumb marked by accused Sat Pal. Public Analyst, Haryana, Chandigarh who analysed sample of milk, found vide report Exhibit PD that the sample was deficient in milk solids not fat content to the extent of 8% of the minimum prescribed standard.

After the receipt of the report of the Public Analyst, Haryana by the local Health Authority, Kurukshetra, complaint was instituted by Sh. Moti Ram Government Good Inspector under Section 16(1)(a)(i) read with Section 7 of the Prevention of Food Adulteration Act, 1954 against Sat Pal on 26.2.1982. Simultaneous to the institution of the complaint, the local health authority sent to Sat Pal through registered post a copy of the report of the Public Analyst with forwarding letter mentioning therein that complaint has been instituted against him in court and if he wanted to get the second sample analysed from the Director, Central Food Laboratory, Ghaziabad, he could approach the Court within 10 days from the receipt of that letter and the copy of the report of the analyst.

On the request of the accused, the second part of the sample was sent to the Director, Central Food Laboratory, Ghaziabad for analysis. His report on analysis of the second sample of the milk is Exhibit PF. According to this report milk was deficient in milk solids not fat content so far as minimum prescribed standards is concerned.

After trial, Sat Pal was convicted and sentenced by the Magistrate as also by the Sessions Judge as indicted above.

I have heard Mr. Rajinder Goel, learned counsel for the petitioner and Ms. Charu Bansal, Advocate for the State of Haryana and have gone through the record. It has been submitted by the learned counsel for the petitioner that milk was not stirred and homogenised before the sample was taken. If milk had been stirred and homogenised, this fact would have found mention in the complaint. The fact is conspicuously absent so far as complaint is concerned. Perusal of the complaint would show that there is no mention that milk was stirred and homogenised before sample was taken. Sh. Moti Ram Government Food Inspector has nowhere stated that milk was stirred and homogenised in the drum with any instrument before sample was taken. Doctor Surjit Lal, of course, has stated that milk was stirred properly and homogenised before sample was taken. In memo exhibit PC, however, there is a note, but in different ink about the stirring of milk. Dr. Surjit Lal has stated in his crossexamination that this note was not given on memo at the spot. In his examinationinchief. Dr. Surjit Lal has nowhere stated that milk was stirred and homogenised before sample was taken. If milk had been stirred and homogenised, he would have stated in his examinationinchief that milk was stirred and homogenised before sample was taken.

In Prem v. State of Haryana, 1996(1) RCR 152 milk solids not fat content was found to be deficient by 0.6% of the minimum prescribed standard, while milk fat content was found in excess by 1.3.% of the minimum prescribed standard. It was held that marginal defeciency in milk solids not fat content can be attributed to improper sampling resorted to by the Food Inspector. Sample taken cannot be said to be representative sample of the whole by any stretch of imagination.

In this case the Food Inspector no where stated that he had stirred the milk and homogenised it and the sample drawn by him was a representative sample. In State of Haryana v. Inder Singh, 1991(3) RCR 116 , a Division Bench of this Court observed as follows :

"The report of the Public Analyst in the instant case that the sample contained milk 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. It has to be inferred that no water had been added to the milk and the mere circumstance that the 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 food or that the report of the Public Analyst was erroneous but not the inference that the milk in question was not pure."

Similar view was taken in Darshan Lal v. State of Haryana, 1995(1) CLR 568. In this case, milk fat was found to be in excess of the prescribed limit whereas milk solids not fat was found to be deficient only by a margin of 0.6%.

In Sher Singh v. State of Haryana, 1992(2) RCR 480 , it was

held:

"When fat content in milk is much higher than the minimum prescribed standard, it has to be inferred that no water had been added to the milk."

In Union Territory, Chandigarh v. Bishan Lal, 1992(2) RCR 557 Division Bench of this Court held that the statement of the Food Inspector in the Court that the milk was stirred before sample was taken is of no consequence when the fact of stirring is not mentioned in the complaint. Version of stirring of milk by Food Inspector in the Court was an afterthought. Arjun Lal who was admittedly joined by the Food Inspector at the time of sampling appeared as DW2 and stated that milk was not stirred or homogenised at the time when sample was taken. This prosecution was launched by Moti Ram, Government Food Inspector for all the local areas in Tehsil/Sub Division/District Kurukshetra. It has been submitted that it has not been shown that he was authorised by the State Government to launch prosecutions under the Prevention of Food Adulteration Act. It has been submitted that in view of Section 20 SubSection (1), no prosecution for an offence under this Act not being an offence under Section 14 or Section 14(A) shall be instituted except by or with the written consent of the Central Government or State Government or a person authorised in this behalf by general or special order, by the Central Government or the State Government. I do not find any weight in this submission as in para 5 of the complaint, it is recorded that he was authorised to institute this prosecution by Haryana Government Health Department Notification No. 7/26/78HB11 dated 20.5.1980. Government Food Inspector was not crossexamined by the defence to elicit that the prosecution was unauthorised. It is true that if the prosecution was unauthorised, the Magistrate could not have taken cognizance of the offence at all. In A.K. Rao and another v. State of Punjab and others, 1986(3) Food Adulteration Cases 66, Supreme Court held that it is only the State Government which can authorise the person to launch prosecution. If such authorisation had been given to the Food Health Authority there could be no further authorisation by the Food Health Authority in favour of the Food Inspector to launch prosecution because that would be subdelegation of power to launch prosecution which is not permissible in law.

Dr. G.S. Rajoria, Sr. Analyst Research Institute Karnal who appeared as DW stated that the deficient food content etc. in the report of the Public Analyst Chandigarh and in the report of the Director, Central Food Laboratory, Ghaziabad could be the result of improper and defective sampling.

In State of Punjab v. Paramjit Singh, 1992 Cr.L.Times 234, Division Bench of this Court observed as follows:

"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."

For the reasons given above, this revision petition succeeds. It is accordingly accepted and the conviction and sentence passed upon the petitioner by the two Courts below are set aside. Petitioner is acquitted of the charge framed against him. Fine if paid shall be refunded to him.