State of Haryana vs Jagdish

B.S. Yadav, J.

The present respondent Jagdish was prosecuted in the Court of the Additional Chief Judicial Magistrate, Jind on basis of a complaint instituted by the Food Inspector for having committed an offence under section 7 read with section 16 of the Prevention of Food Adulteration Act, 1954 (hereinafter called the Act). The learned trial Court acquitted him of the charge framed against him. Feeling aggrieved, the State has come to this Court in appeal. It may be mentioned here that the complaint was also against Avinash Chander, but the learned trial Court discharged him.

The prosecution case, in brief, was that on January 18, 1979 Summer Singh Yadav Food Inspector (P.W 1) visited the shop run by Jagdish and Avinash Chander at 3:10 p.m. Dr. R.S. Garg, Deputy Chief Medical Officer, Jind was accompanying the Food Inspector. The respondent was found in possession of 11/4 kgs. of unindicated milk for sale. The Food Inspector obtained a sample of milk in accordance with the procedure laid down in the Act and the Rules framed thereunder. On analysis by Public Analyst, it was found to contain only 5.7% of milk fat as against 6%. As the milk was unindicated, therefore, Public Analyst treated it as buffalo''s and opined that the milk fat was 5 percent deficient in the sample. The accused was accordingly prosecuted. The defence was that the accused was running a teastall and though the milk in the vessel was unindicated, it was cow''s milk. The learned trial Court held that on analysis, it was not possible to determine whether the milk was cow''s or not and, therefore, the representation made by the accused that it was cow''s milk should be relied upon and as the minimum prescribed standard for milk fat in cow''s milk is 4 per cent and in the present case, the milk fat was found more than the prescribed standard, therefore, the milk could not be said to be adulterated. Consequently, the accused was acquitted.

The learned State counsel argued that the standards of different classes and designations of milk have been given in Serial No. A. 11.01.03 in Appendix B of the Prevention of Food Adulteration Rules, 1955 hereinafter called the Rules) and Note (i) to that Serial number reads as follows :

"When milk is offered for sale without any indication of the Class, the standards prescribed for buffalo milk shall apply."

He, therefore, argued that where milk is sold without any indication as to the nature of the same, the same is to be judged from the standards laid down for buffalo''s milk. In support of his contention he has cited Shyam Bahadur v. State, 1980 (1) FAC 210, wherein it was remarked :

"Under the provisions of the Prevention of Food Adulteration Act, the food Inspector who takes a sample of food for analysis is authorised to give a notice in writing of his intention to do so to the person from whom the sample is taken. It is not necessary in every case that he must demand a particular type of Food. He can take any article of Food which he suspects to be adulterated or which he suspects would not prescribe to the standard laid down in the Rules. Serial No. 11.01.11 of Appendix (B) has been framed under Rule 5 of the Prevention of Food Adulteration Rules. It lays down the standard for different classes and also the designation of milk. The ''Note'' which is attached to these rules is to the effect; that when milk is offered for sale without any indication of the class, the standard prescribed for buffalo milk shall apply. A perusal of this chart indicates that Buffalo Milk, Cow Milk, Goat Milk, Sheep Milk, Standardised or Mixed Milk, Refined Milk, Toned Milk, Double Toned Milk, Skimmed Milk are all mentioned there. The standards have also been prescribed. If the Food Inspector demands any of the various types of Milk, narrated above, or the vendor sells any of the above types of Milk, then the standard prescribed for that particular type of Milk will apply, but if there is no indication either way as to the type of milk which the sample is taken by the Food Inspector, then under the ''Note'' referred to above, which in my opinion is nothing more or less than a rule itself, indicates that the standard to be applied for analysis of such milk will be that which has been prescribed for buffalo milk".

He has also relied upon Vishnu Dutt v. State of U.P and another,1981 (II) FAC 70, wherein it was held :

"Counsel for the applicant has argued that since the accused had not given out the nature of the milk which he was carrying, therefore, the Public Analyst committed error of law in judging it from the buffalo milk standard. In my opinion, there is no merit in this contention. The note which is attached to the Appendix B of Food Adulteration Rules, clearly indicates that when the sample of milk, offered for sale does not specify or disclose the class to which it belonged the standard prescribed for buffalo milk shall be applicable. That appears to be the correct legal position."

The learned State counsel further pointed out that it was not the plea of the accused that the Food Inspector had demanded a particular kind of milk or that while selling milk to him, he (i.e the accused) had told him that it was cow''s milk. He drew our attention to the following question put to the accused in his examination under section 313 of the Code of Criminal Procedure and the answer given by him :

"Q. It is in evidence against you that you had 11/4 K.G. unindicated milk in a vessel at that time, which was meant for sale.

A. It is correct. It is cow''s milk."

The learned State counsel argued that when the accused had admitted that the milk was unindicated, therefore, the plea taken by him at a later stage that it was cow''s milk, cannot be given any weight.

We are of the opinion that the above argument has force. Both Sumer Singh Yadav, Food Inspector (PW 1) and Dr. R.S. Garg have stated in crossexamination that the accused did not indicate at the time of sale of milk that it was cow''s milk. In fact, as noticed earlier, it is also not the plea of the accused that at the time of sale of milk for analysis, he had told the Food Inspector that it was cow''s milk. Ex PA is FORM VI which was singed by the accused and the detail of the sample of food purchased for analysis, by the Food Inspector is given as "U/Milk". Ex. PB is the receipt which was signed by the accused when he received the price of milk taken for sample.In this receipt also, milk is described as "U/Milk," (the letter ''U'' appears to stand for un indicated milk). If the accused had disclosed at the time of taking of the sample of milk that it was cow''s milk, then he would not have signed the said form and the receipt. Hence, in such circumstances it will have to he held that the accused had sold un indicated milk to the Food Inspector.

The learned counsel for the accused has argued that it was the duty of the Food Inspector to find out the class of milk of which he was taking the sample. In support of his contention, he has cited Ashiq v. State, 1981 (11) FAC 51. In that case sample of unindicated milk was taken by the Food Inspector and on analysis, the Public Analyst found it to contain only 3.8 % fatty solids as against the prescribed 4.5% for buffalo milk. The vendor was accordingly prosecuted and convicted. His appeal was also dismissed. He went in revision to the High Court. The learned Judge remarked :

"On the evidence in the present case there is nothing to show that vendor was avoiding to give the class of the milk. The evidence shows that the Food Inspector never cared to find out what class of milk the applicant claimed to be carrying. In that case it would not be possible to contend that the milk was offered for sale without any indication of the class and fall back on the note, apply the standard for buffalo milk. In Hari Krishna v. State, 1980 (1) FAC 452,, Hyder, J. took a similar view. The case before him was of curd. The learned Judge observed that under Rule 9, the Food Inspector had to make necessary inquiries from the vendor. Further that "if on making such inquires, the vendor does not make any disclosure only then the question of raising a presumption under the above said Article of Schedule (B) of the Rules would arise. On the other hand, if the Food Inspector does not make any enquiry of the vendor voluntarily does not state the milk or curd as the case may be, buffalo milk, there can be no question of raising a presumption referred to in aforesaid article. I am in respectful agreement with this view."

In view of the above, it was held in that case that the Note given under Serial Number A. 11 : 01 : 03 in Appendix B, of the Rules, did not apply and that the milk could not be held to be adulterated Consequently, the conviction of the vendor was set aside. In our opinion, Rule 9 nowhere lays down that while purchasing food article, the Food Inspector should make an enquiry about the class or category of the food article to be purchased by him. Rule 9(f) of the Rules reads as follows :

"9. It shall be the duty of the Food Inspector :

........ ......... .......

(f) to make such inquiries and inspection as may be necessary to detect the manufacture storage or sale of article of food in contravention of the Act or rules framed thereunder;"

This rule dose not show that while purchasing milk, the Food Inspector should enquire from the vendor if the latter was selling cow''s or buffalo''s milk. If it is incumbent upon the Food Inspector to make such an enquiry, then Note (i) of the serial number, is practically rendered redundant. Rule 42 (c) of the Rules clearly lays down that the caps of milk bottles should indicate the nature of the milk contained in them. No doubt, the aforesaid rule relates to the nature of indication to be given on the caps of milkbottles, but if the milk is contained in some other container, such container should clearly indicate in full or by abbreviation the nature of milk contained in it and that appears to be the intention of the Legislature while enacting Rule 42(C) of the Rules and providing a note to Serial Number, given above, of the Appendix B. From a reading of this Note, it is clear that when milk so offered for sale, the duty of the vendor is to give indication of its class, because if no such indication is given, the standard of buffalo''s milk will apply with great respect, were are not inclined to follow the reasoning given in Ashiq''s case (supra). Therefore, following the ruling cited by the learned State Counsel, it is held that as the accused had sold unindicated milk, the standard prescribed for buffalo''s milk would be taken into consideration for determining if the milk was adulterated or not. As noticed earlier, the Public Analyst found that it was deficient in milk fat. Therefore, as the milk did not conform to the standard, it will have to be taken as adulterated.

The learned counsel for the accused argued that it is in evidence that the accused is running a teastall and milk was kept for preparation of tea and therefore, it cannot be taken that the milk was kept for sale. This argument has no force. Explanation to section 7 of the Act reads as follows :

"For the purposes of this section, a person shall be deemed to store any adulterated food or misbranded food or any article of food referred to in clause (iii) or clause (iv) or clause (v) if he stores such food for the manufacture therefrom of any article of food for sale."

This explanation came up for interpretation in Mohan Lal Verma v. Nagar Swasthya Adhikari, Kanpur and State of U.P., 1908 (1) FAC 269, wherein it was remarked :

"Counsel for the applicant has, however, argued that the milk of which the sample was taken by the Food Inspector was meant for the preparation of tea and coffee and was not sold as milk at the Canteen in question and therefore, he submits that the milk was not for sale.

This controversy appears to have been now set at rest by the addition of Explanation to section 7 by Act No. 34 of 1976, which came in force on 1st April,1976 and which applies to the present case. Under the explanation an item of food, which is stored and used for the manufacture of any other article of food for sale, has also to retain its purity. If such an item is adulterated by the addition of water, then it would amount to an offence punishable under section 7/16 of the Prevention of Food Adulteration Act. This question has already been decided by me in, now unreported Criminal Revision No. 1043 of the 1979, Nabi Hasan alias Nathu v. State. As such I am not satisfied that there is any force in this submission."

Therefore, it is futile to argue that the milk was kept only for preparation of tea and not for sale.

The learned counsel for the accused argued that in the present case Rule 9A of the Rules and section 13 (2) of the Act were not complied with and therefore, the accused has been prejudiced in his defence. To appreciate this argument, it is necessary to give some facts. In the present case, the sample was taken on January 18,1979. The report of the Public Analysts is dated February 8,1979. The complaint by the Food Inspector is dated March 21,1979 it was filed in court on the same day. The Local Health Authority, Jind, vide letter (copyzz Ex PF) dated 29.3.1979, informed the accused that the sample had been found adulterated by the Public Analyst and the prosecution had been launched against him in the Court of Sh. R.P. Bajaj, Chief Judicial Magistrate, Jind on 21.3.1979 and that if he wanted the article of Food in question to be analysed by the food Research and Standrisation Laboratory Ghaziabad, he should apply within a period of 10 days from the receipt of the said letter. It is also mentioned in that letter that the report of the Public Analyst was sent along with it. That letter along with its enclosure was sent by registered post. Ex. PG is the postal receipt.

The learned counsel for the accused argued that under rule 9A Local (Health) Authority is required to send a copy of the Public Analyst to the person from whom the sample was taken immediately after the institution of the prosecution. In the present case, the copy of the report was despatched to the accused after more than a week. A Division Bench of this Court of which I was a Member, has held in Crl. Appeal No. 395 (DBA) of 1981, State of Haryana v. Amar Nath, decided on 3rd February, 1983 and in Criminal Appeal No. 585 (DBA) of 1982, State of Punjab v. Balwant Singh, decided on 7th March, 1983 that though Rule 9A of the rules and section 13(2) of the Act were couched in mandatory terms, but they have to be taken as directory in nature and the accused is not entitled to acquittal merely on showing that there has been some infraction of those provisions. He has further to show that he has been prejudiced on account of that infraction. Of course, we agree that the samples of some food articles like milk, curd etc., are liable to deteriorate after a few months if kept at room temperature and the accused is not expected to exercise his right under section 13 of the Act, because in that case his right would become an illusory one, but every case has to be decided on its own facts. In the present case, the accused was informed about the result of analysis after a little over two months. It is not the case of the accused that by the time he was informed, the other part of sample milk deposited in the Local (Health) Authority by the Food Inspector, must have decomposed and become unfit of analysis by the Food Laboratory, Gaziabad. Therefore, if the accused was informed by the Local (Health) authority about the result of analysis not immediately after the institution of the prosecution, but after 8 days, it cannot be said that the accused has been prejudiced in his defence. It would not be out of place to mention here that in the trial Court it was not the plea of the accused, that there has been any material infraction of Rule 9A of the Rules and that he has been prejudiced in his defence. On the facts of the present case, we hold that the accused has not been prejudiced by the slight infraction of Rule 9A of the Rules.

Lastly, the learned counsel for the accused argued that the accused is a teavendor and the offence committed by him is of a technical nature. In support of his contention, he has cited Municipal Board Faizabad v. Lal Chand Surajmal and another, AIR 1964 Allahabad 199, and The Chairman Jugsalai Notified Area Committee v. Mukhram Sharma, AIR 1969 Patna 155. He, therefore, prayed that in case of conviction, the accused be awarded a light punishment. Section 16(1) of the Act lays down the penalty which can be awarded to a person who commits any of the specified offences under the Act. That section further lays down that the accused shall be liable for imprisonment for a term not less than six months, but which may extend to three years and to pay a fine which shall not be less than Rs. 1,000/. There provisos have been appended to that subsection which permit a Court to award lesser sentence for any adequate and special reasons with respect to the offence mentioned in those provisos. In the present case, the offence falls under clause (i) of section 16(1) (a) of the Act. Under the proviso (i) a lesser sentence could be provided if the offence is with respect to the article of food which is primary food. The learned counsel for the accused has not been able to show that milk is a primary food as defined in Section 2 (xiia) of the Act. It has been held in Nabi Hasan alias Nathu v. State, 1980(1) FAC 285 that milk is not a primary food. It would not be out of place to mention here that in Nabi Hasan alias Nathu''s case (supra) the accused had been sentenced to rigorous imprisonment for one year and a fine of Rs. 1,000/ by the trial Court and that sentence was maintained by the Session Judge in appeal. In revision, the sentence was reduced from one year to six months'' rigorous imprisonment. The sentence of fine was maintained. That case also related to the taking of the sample of milk from a tea vendor.

For the foregoing reasons, we accept the present appeal and hold that the accused respondent sold adulterated milk to the Food Inspector. Accordingly, we accept the appeal, set aside the acquittal of the petitioners, and convict him under Section 7 read with Section 16(1)(a)(i) of the Act and sentence him to undergo rigorous imprisonment for six months and to pay a fine of Rs. 1,000/. In default of payment of fine, be shall further undergo rigorous imprisonment for three months.