State of Haryana vs Prabhu Dayal

A.L. Bahri, J.

Sub Divisional Judicial Magistrate, Dabwali, vide his order dated January 8, 1987, recorded acquittal of Prabhu Dayal in a case under section 16(1)(a)(i) read with section 7 of the Prevention of Food Adulteration Act, State of Haryana has come up in appeal.

On December 6, 1981 at 8.30 a.m. Prabhu Dayal was apprehended being in possession of 20 kgs. of cow''s milk for sale. A sample of milk was purchased from him against payment of Rs. 2/ by the Food Inspector. As usual the sample was put into three dry and clean bottles wherein for main was added. The samples were sealed. Ultimately one of the samples was sent to the Public analyst and on receipt of the report it was found that the sample was not up to the prescribed standard. It contained milk fat 5.1% and milk solids not fat 6.9% Complaint was filed in Court and Prabhu Dayal was prosecuted. Two witnesses were produced by the prosecution. PW1 Boota Singh, Government Food Inspector and PW 2 Shri S.K. Bhatnagar, Medical Officer. The accused pleaded innocence. However, he did not lead evidence in defence. The Judicial Magistrate relying upon the judgment of the Court in State of Punjab and another v. Jagan, (1986) 13 Cr. LT 174 held that the statement of the Food Inspector became suspicious with regard to the fact of stirring of the milk to make it homogeneous before taking the sample and thus acquitted Prabhu Dayal.

Shri Sunil Gour, Advocate, appearing on behalf of the State of Haryana has relied upon the decision by a Full Bench of this court in State of Punjab v. Ramesh, 1992(3) Recent Criminal Reports 416 (FB) : 1992 (1) PLR 508, wherein it was held that it was not necessary that the fact of stirring of the milk or such like articles should be mentioned in the complaint itself in order to authorise the Court to take cognizance of the case. It was further held that the fact of omission in this respect in the complaint can only be taken into consideration in the matter of appreciation of evidence regarding the fact whether the food article was made homogeneous before the sample was taken.

In the light of the decision aforesaid the acquittal of Prabhu Dayal could not be ordered merely because the factum of stirring of the milk was not mentioned in the complaint and in fact it was not so ordered though it is the contention of Shri Sunil Gour. The perusal of the judgment shows that the statement of the prosecution witness was taken to be suspicious on this material point of mixing of the foodarticle (milk) before the sample was taken. In other words Sub Divisional Judicial Magistrate did not consider it appropriate to rely upon the evidence of two witnesses produced on this material aspect.

We have scanned through the evidence of PW 1 Boota Singh and PW 2 S.K. Bhatnagar. No doubt, in their statements they did mention about stirring of the milk before the sample was purchased, the line of crossexamination conducted shows that the case of Prabhu Dayal was that no sample of milk was purchased. There were 34 more persons available as admitted by PW1 Bota Singh at the time of taking the sample. However, no independent person was produced as a witness or associated in the process of taking the sample. Boota Singh PW1 candidly admitted that the fact of stirring of the milk was not mentioned in the complaint. Not only in the complaint, this fact is conspicuously absent in the other documents prepared Rs. 2/ in respect of purchase of sample. Exhibit PC is the report i.e. on the spot,...........Exhibit PB is the receipt of payment of memo prepared with respect to taking of the sample. In none of these documents it was mentioned that the milk in possession of Prabhu Dayal was made homogeneous by stirring it before purchase of the sample. On overall assessment of the evidence produced, the Sub Divisional Judicial Magistrate came to the conclusion that it was not established that the milk was made homogeneous before the purchase of the sample. Such a view cannot be held to be perverse or without considering material on record. We have not been persuaded to take a different view.

For the reasons recorded above, this appeal fails and is dismissed.