State of Haryana vs Bhagwan Dass

K.S. Tiwana, J.

Bhagwan Dass respondent was intercepted on Railway Road, Tohana, District Hissar by Shri Milkhi Ram, Food Inspector, Dr. O.P. Sarwal, Deputy CMO (H) Hissar and Bhur Singh while he was carrying cow''s milk in a drum for sale. After disclosing his identity the Food Inspector purchased 660 ml. of milk from Bhagwan Dass respondent on payment. The milk was divided into three equal parts and was put in three dry and clean bottles. The bottles were properly stopped, wrapped and scaled. One sample was sent to the Public Analyst for analysis, the second was given to the respondent and the third was kept in safe custody. On analysis the sample was found to be adulterated by the Public Analyst. After serving the report of the Public Analyst on the respondent, a complaint was filed in the Court of Chief Judicial Magistrate First Class, Hissar in which the respondent was summoned to stand trial.

Shri Milkhi Ram, Food Inspector and Dr. O.P. Sarwal took stand in the witness box and testified about the taking of sample. The accused denied the fact of the sample being adulterated. The learned trial Judge found that the milk was not stirred before taking the sample and acquitted Bhagwan Dass respondent of the charge.

The State of Haryana has filed this appeal challenging his acquittal.

The only question in this appeal is whether the milk was made homogenous stirring before the sample was taken whether this fact is proved in a satisfactory manner on the record.

It is a matter of common knowledge that every constituent of milk is not of the same weight and density as the others are. Milk felt being lighter of the rest of the constituents which are very thoroughly mixed up in the liquid accummulates on the surface if milk is allowed to stand for some time, or is not thoroughly shaken or churned. The milk sellers carry milk in drums sufficiently long distances for sale from the place of collection. In that process the milk stands for a sufficient long time and fat accummulates on the surface. It is, therefore, essential for the Food Inspector to make milk homogenous before they draw a sample out of its main bulk. The law is well settled on this point. In this case the Food Inspector did state in examination in chief that he had stirred the milk and after mixing it thoroughly made it homogenous. Dr. O.P. Sarwal did not refer to the stirring part at all in his evidence. Dr. O.P. Sarwal therefore, did not extend any help to the Food Inspector in the latter''s effort to show that the sample of milk was properly drawn. Even Milkhi Ram Food Inspector admitted in his crossexamination that the "milk was straightaway put into the bottles." The admission by the Food Inspector leads to an inference that his attempt in the examinationinchief to show that he had stirred the milk before taking the sample, was only an attempt to justify his action by bringing it in conformity with the regular process of taking the sample. The evidence of both the witnesses on the point of stirring is not uniform. At this stage it could be appropriately referred to the complaint also in which there is no mention if the milk was stirred and made homogenous before the sample was drawn. It is no legal requirement to mention about the stirring of the milt in the complaint filed by the Food Inspector but in given cases, it becomes relevant while appreciating evidence which is not otherwise satisfactory about the stirring of the milk. In such a case the omission of this fact from the first information report assumes importance and the conduct of the Food Inspector who tries to make an improvement in his case becomes suspicious.

On the merits of this case, we find that the mention in the examinationinchief the stirring of the milk before taking the sample was only in effort on the part of Milkhi Ram Food Inspector to improve his case. The view of this Court is well settled about the absence of the evidence of stirring of milk as it is expressed in various judgments. Latest in the series is Crl. Appeal No. 502 DBA of 1984 (State of Punjab v. Jagan Nath) decided on 30.5.1961 : 1987(1) Recent CR 5.

In view of the facts noticed above, the learned Magistrate was right in discarding the case of the prosecution and acquitting the accused. The judgment under appeal is covered by the law laid down by this Court and order of acquittal is upheld. The appeal is dismissed.