State of H.P. vs Nazir Singh

Bhawani Singh, J.—State has preferred this appeal against the acquittal of the accused by the Sub-Divisional Judicial Magistrate, I-Class, Arki, at Nalagarh, in Case No. 243/3 of 1984 u/s 16(1)(a)(i) of the Prevention of Food Adulteration Act, by decision of 24-7-1986.

Briefly, the case is that on 18-9-1984 at 9.15 A.M., Shri H.L. Pathak, Food Inspector, Solan intercepted the accused while in possession of 80 Kg. cows milk in two drums meant for sale to the general public. The Food Inspector disclosed his indentity, gave notice of his intention to the accused and purchased 660ml cows milk against payment of Rs. 20/-. The milk was stirred before the same was purchased. It was put into three neat, clean and dry bottles in equal parts and 18 drops of formalin were also added in these bottles. These bottles were wrapped, packed and sealed. A Panchnama was also prepared by the Food Inspector at the spot.

One part of the sample along with copy of memo. VII, sealed in a packet, was sent to the Public Analyst, Kandaghat through Sant Ram, Peon. A copy of memo. VII with seal impression was also sent in a sealed packet to the Public Analyst separately. Rest of the two packets were deposited with the Local Health Authority, Solan.

The Public Analyst reported that the sample was adulterated. Accordingly, the Food Inspector obtained sanction to launch prosecution against the accused and then filed the present complaint in the Court for the prosecution of the accused. The accused also moved an application u/s 13(2) of the Prevention of Food Adulteration Act, so, the second packet of the sample was sent to the Director, Central Food Laboratory, Ghaziabad. The report was that the milk fat in the sample were 4.9% and milk solids not fat were 7.9% and the opinion was that the sample did not confirm to the standard of cows milk for Himachal Pradesh, as the milk solids not fat were less than the minimum prescribed limit. The accused pleaded not guilty and claimed trial. The trial ended in the acquittal of the accused.

It was contended on behalf of the State that the judgment deserves to be set-aside, since it has been established that the sample milk was thoroughly stirred and the conclusion of the trial Judge to the contrary, is against the evidence on record.

On the other hand, this proposition canvassed on behalf of the State has been seriously disputed by the learned Counsel for the accused and it was contended that the inpugned judgment is strictly in accordance with the evidence that has been adduced in this case as well as in accordance with law applicable to the facts and circumstances of this case.

The principal question for determination in this case is whether the sample taken by the Food Inspector was stirred and made homogeneous for the purpose of analysis and if he failed to do so, what is the result of this kind of omission?

It is essential for the purpose of analysis of milk that before the sample is taken, the milk is properly and thoroughly stirred to make it homogeneous. It is only then that proper homogeneous sample for exact analysis of the milk is collected and correct report as to the nature and extent of adulteration found. The requirement of stirring the milk to make it homogenized before a sample is taken, has been decided in large number of decisions. It is worthwhile to narrate two and refer the others for the purpose of this decision. In 1982 (II) F.A .C. 372, (Food Inspector, Municipal Corporation, Baroda v. Madanlal Ramlal Sharma and Anr.), the Supreme Court observed in paragraph 8 of the judgment that:

We are conscious of the fact that in milk and milk preparations including curd, it is distinctly possible that the fat settles on the top and in order to find out whether the milk or its preparation such as curd has prescribed content, the sample must be homogeneous and representative so that the analysis can furnish reliable proof of nature and content of the article of food under analysis.

In this case, the Court laid emphasis to the effect that the sample taken must be homogeneous and representative. For that purpose, churning of the sample was necessary, though, the same could be done either by an instrument or by hand.

In 1979 (II) F.A.C. 359 (State of Rajasthan v. Kachab), the Division Bench of the Court said that:

As the sampling of the milk had not been carefully done by the Food Inspector, it could not be safely said that the sample of milk sent to the Public Analyst truely represented the milk to be tested.

The same principle has been enunciated in 1986 F.A.C. 153 (State v. Kasturi Lal) 1986 (II) F.A.C. 266 (Raju v. State) and 1985 (I) F.A.C. 6 (Tara Chandws. State of Haryana).

Coming to the facts of this case, the evidence on this aspect is thoroughly unconvincing. H.L. Pathak (PW-1) is the Food Inspector. He states that the milk was thoroughly stirred and was made homogeneous before taking the same. According to him, it was stirred with hand and it was done in the presence of independent witnesses including P.L. Sharma (PW-3), Naresh Kumar (not examined), Dr. Urmil Gupta (PW-2) and Sant Ram. The Panchnama (Ext. P-3) was also prepared on the spot and was signed by the accused, Food Inspector and the independent witnesses. He also states that he had mentioned in the complaint that the milk was thoroughly stirred, but he admits that when he put his hand into the drum of 40 Kgs., it could not reach the bottom of the drum. This witness is contradicted by Dr. Urmil Gupta (PW-2), who states that the milk was stirred in the drum by the jug that was brought from Pawan Restaurant. The third witness of the prosecution P.L. Sharma (PW-3) does not say as to how and by what method the milk was stirred, although, he was also present at the spot alongwith P.W.-l and P.W.-2. There is no mention of the method of stirring in Panchnama Ext. P-3. The Food Inspector should have made mention of it in this document to cast away any kind of doubt relating to the manner and method of stirring the milk before taking the sample. Further, in the complaint also no mention is there. The accused has also explained that the milk was not made homogenous by stirring before the sample was taken. Similar is the statement of his defence witness Shri Ambal Khan (DW-1).

On this kind of evidence, the trial Court has rightly come to the conclusion that the prosecution failed to establish that the sample was taken after stirring the milk by the Food Inspector. The acquittal of the accused is, therefore, quite justified and in accordance with law. I hereby confirm this finding and the acquittal of the accused.

One more submission needs to be answered now. R.K. Gautam, learned Counsel for the accused, contends that the Food Inspector did not associate independent witnesses while taking the sample. Therefore, the sample taking is in violation of Section 10(7) of the Prevention of Food Adulteration Act.

There is force in this submission of the learned Counsel for the accused. In this case all the witnesses examined are officials. It is not that the testimony of official witnesses is to be discarded, but the non-inclusion of independent witnesses in the absence of sound convincing explanation by the Food Inspector, cannot be lost sight off. The Food Inspector has not given any explanation why independent witnesses were not associated, although, it was a market place and people were moving about, so, some one out of them could be called upon to witness the sample taking. Naresh Kumar, the only independent witness has not been examined. In this view of the matter, it is not difficult to hold that the Food inspector has not given any explanation why independent witnesses were not associated and examined in this case, which omission is fatal and it can be said that the sample taking was not at all proper.

The result of the aforesaid discussion is that there is no merit in this appeal and the same is accordingly dismissed.