State of Punjab vs Balwant Singh

S.S. Rathor, J.

On 25.6.1985, PW1 Shri S. L. Lamba, Food Inspector alongwith one Dr. S.S. Sharma was going in connection with the collection of samples of Food. At about 9.45 a.m. the accused while carrying cow''s milk in two drums on bicycle was intercepted by the said officials near I.T.I. College, Jalandhar Road at Hoshiarpur. PW1 Shri S.L. Lamba served a notice in from VI upon the accused expressing his intention to take sample of the milk and the said notice was signed by the accused and attested by Dr. S.S. Sharma also. The milk is stated to have been stirred and made homogeneous in one of the drums with the help of measurement of one Kg. Then 660 ML. of homogeneous milk was purchased vide receipt Ex. PB, signed by the accused and attested by aforesaid Dr. S.S. Sharma. Rs. 1.83 was paid as price of the milk purchased and the milk purchased was divided into three equal parts and put in three, clean and vary bottles. 18 drops of formaline were added in each sample bottle as preservator. The bottles were then stoppered, labeled and securely fastened and then wrapped in a strong thick paper, secured by means of a string twins. Seals were put on each sample. In short, samples were prepared after completion due formalities as required under the law. Spot memo Ext. PC was also prepared by the Food Inspector. One sample was deposited with the Local Health Authority through Kewal Krishan for onward transmission to the Public Analyst Punjab Chndigarh alongwith memo and specimen impression of the seal used on the sealed packet. In due course, the Public Analyst analysed the sample sent to him and found the milk adulterated vide reported Ext. PD.

Complaint Ext. PE dated 13.1.1985 was filed in the Court. The complaint having been filed by a public servant, the accused was summoned without examining the complainant. On the appearance of the accused, statement of Shri S. L. Lamba, Food Inspector was recorded before framing of the charge. The learned A.P.P. tendered Ext. PH report of the Director, Central Food Laboratory and closed evidence for consideration of charge. The trial Court framed a charge for an offence publishable under section 16 (1) (a) (i) read with Section 7 of the Prevention of Food Adulteration Act, 1954. The accused pleaded not guilty and claimed trial. The accused was afforded an opportunity for further examination of the Food Inspector Shri S.L. Lamba (PW1). PW2 Onkar Singh, Clerk of the office of the Local Health Authority was also examined. The prosecution closed its evidence without examining Dr. S.S. Sharma (PW) being unnecessary.

Statement of the accused under section 313 Cr.P.C. was recorded and all incriminating evidence was put to him which he emphatically denied. While claiming innocence, he took up the specific plea that he was carrying milk in two drums to the house of one Amolak Singh at Gokal Nagar, Hoshiarpur on the occasion of a Bhog ceremony and the milk was not for sale. Said Amolak Singh has been examined as DW1 in defence.

Shri S. L. Lamba (PW1) has corroborated the contents of the complaint filed by him. He also deposed for the various steps taken by him for taking the sample of milk in possession of the accused and in due course getting it analysed having been sent through the office of Local Heath Authority. His statement made in conformity with the allegations in the complaint need not be discussed in detail. However, the fact remains that his statement as a complainant is the only piece of evidence produced before the trial Court for seeking conviction of the accused alongwith report Ext. PH given by the Director, Central Food Laboratory, Ghaziabad. However, the trial Court acquitted the accused on the ground that provisions of Section 10(7) of the Prevention of Food Adulteration Act, 1954 (for short the `Act'') having not been complied with inasmuch as, no effort was made to call and join one or more persons to be present at the time of taken action in terms of clause (a) of Subsection (1), SubSection (2), SubSection (4) or SubSection (6), as required under said Section 10(7) of the Act. The trial Court also was of the view that the milk was not properly stirred to make it homogeneous before taking the sample as is apparent from report Ex. PH of the Director, Central Food Laboratory, wherein milk fat has been found as 6.2% i.e. much more than the prescribed standard of 4% but milk solids not fat had been found marginally deficient i.e. 78%. Against this order of acquittal, the State has come up in appeal which is being disposed of by this judgment.

The statement of PW1 Shri S.L. Lamba and PW2 Onkar Singh, Clerk alongwith record of the case have been gone into with the assistance of Shri S.S. Kang, Deputy Advocate General, Punjab.

There is nothing on the record sand in the statement of PW1 that any effort was made to call for and join one or more persons by the Food Inspector at the time he initiated action against the accused for taking the sample. Statement of PW1 before framing of the charge was recorded on 2.6.1986. It this statement, the said witness it conspicuously silent on this point. Similarly he was recalled for further crossexamination on 12.9.1985 and crossexamination was conducted the defence counsel and he successfully placed on recorded the material facts showing that independent persons were available at the place of taking sample i.e. on the gate of I.T.I. College. A suggestion was also given to him that the petrol pump was situated near that place. The witness pleaded ignorance of nearness of the petrol pump to the place of occurrence. The was also suggested to this witness that Dr. S. S. Sharma was not with him at that time. The mater does not end here. There is no such mention in the complaint Ext. PE as well that any effort was made to join one or more persons at the time of taking action against the accused of taking sample. Where all these facts are taken together the unescapable conclusion is that no effort was made by the Food Ispector to join one or more persons as envisaged under section 10(7) of the Act. It is pertinent to note here that as per complainant''s version, Dr. S.S. Sharma, Senior Medical Officer, Incharge P.H.C., Bhonga, district Hoshiarpur was present with the complainant and he is alleged to have attested all the documents prepared by the Food Inspector. As already stated above, a specific suggestion was put to the Food Inspector (PW1) that the never joined aforesaid Dr. S.S. Sharma while taking the sample. In spite of this, it is surprising that the said material witness viz. Dr. S.S. Sharma has been given up being unnecessary. It has to be presumed that this material witness was given up as he was not ready to oblige the complainant by supporting this untrue version. In these circumstances, a clear cut breach of Section 10(7) of the Act would certainly have a fatal effect on the prosecution case.

Even otherwise, the statement of PW1 Shri S. L. Lamba is quite vague and tained one as he has not been able to give exact location of the place where sample was taken. His statement even otherwise, does not inspire confidence and is not above board.

Another aspect of the mater is that the sample was received by the Public Analyst on 26.6.1985 and it was analysed on 26.7.1985 as is evident from the report Ext. PD. This report was forwarded to Shri S.L. Lamba, Food Inspector on 2.8.1985 for launching prosecution against the accused. Complaint dated 13.8.1985 was filed in the Court. As letter dated 14.8.1985 issued by the local Health Authority was received by the accused along with a copy of the Public Anaslyst''s report wherein a direction was issued to the accused that if he was interested, he could get the second sample tested from the Central Food Laboratory, Ghaziabad and if he so desired, he could ask for the same within ten days of the receipt of the letter. On 20.8.1985, the accused moved an application for producing the sample in the Court. The sample was produced in the Court on 18.10.1985 and it was analysed by the Central Food Laboratory on 28.10.1985. Thus the whole process consumed more then four months resulting in violation of the provisions of Section 13(2) of the Act. This Section envisages prompt despatch of the sample within a period of five days from the receipt of such requisition from the Court. Where sample of food article like milk while is of perishable nature is kept for such a long time of more than four months at room temperature (particularly when sample is taken in the hot month of June) it is likely to deteriorate. The accused lost no time in availing of this statutory protection. He moved the application on 20.8.1985 for production of the sample in the Court but it was produced on 18.10.1985. To add to the miseries of the accused, it was analysed on 28.10.1985 i.e. much more than four months from the taking of the sample. Under these circumstances, nonproduction of the sample in the Court for such a long time will certainly cause material prejudice to the accused and breach of the aforesaid mandatory Section of the Act which is fatal to the prosecution.

Another, equally important infirmity in the complainant''s case is that there is no cogent and convincing evidence on record to show that the contents of the milk were stirred and made homogeneous before taking of the sample. Of hours, there is usual recital in the complaint and halfheartedly statement had been made by the Food Inspector Shri S.L. Lamba (PW1). His deposition has already been found incredible. Even of the allegations in the complaint and statement of the Food Inspector are taken on their face value, yet it has not been proved that stirring was done careful to make the sample a representative one of the whole quantity of milk contained in the drum. The Food Inspector has only stated that it was stirred with measurement of one Kg. This is not sufficient evidence to prove that milk was properly stirred. There should have been evidence on record that the milk was stirred clockwise and anticlockwise and the milk measurement had reached the bottom of the drum and the milk lying at the bottom was thoroughly mixed with the upper layer of milk in the drum. Of course, subsequent report dated 28.10.1985 Ext. PH of the Central Food Laboratory is to supersede the earlier report dated 26.7.1985 (Ext. PD) of the Public Analyst. But these two reports can certainly be used to show that difference between the two could be because of lack of proper stirring of milk. Standard of purity of cow''s milk has been laid down in the Act under item No. A. 11.01.11 (as applicable to Punjab), wherein minimum milk fat should be 4.0% and milk solids not fat should be 8.5%. In both the reports, no deficiency was found of the contents of milk fat as in Ext. PD presence of milk fat was found to be 5.9% and in report Ext. PT milk fat was found to be 6.2%. It is clear that contents of fat got accumulated on the upper layer of the milk and that is why it was found much in excess of the minimum prescribed standard. Deficiency of milk solids not fat was found to be 8.1% and 7.8% in Exts. PD and PH, respectively. This is again evidence of the fact that the milk was not completely made homogeneous. Further reading of the two reports shows that there is prominent difference between the two reports, again indicating nonhomogeneous of the contents of milk in the drum. Undeniably there is statutory duty cast upon the Food Inspector under the Act to take sample of the material after taking all steps to make it homogeness and representative in nature so that guilt may be fastened upon the accused with certainty. Because of this infirmly in the prosecution case, the accused is entitled to the benefit of doubt.

The trial Court also agreed that the defence version of the accused that he was not carrying the milk for sale but in fact he was carrying the same to his uncle''s house for a religious ceremony and his uncle has appeared as D.W.1. The trial Court found no reason to disbelieve the version of D.W.1. We also agree with the observations and conclusions of the trial Court while believing D.D. 1. Amolak Singh and do not feel the necessity of giving additional reasons for doing the same.

In view of the discussion made above, we are of the opinion that the trial Court rightly passed the order of acquittal in favour of the accused for the reasons recorded in the impugned judgment and as detailed in paragraph 4 of this judgment. The evidence on record has been correctly appreciated. Neither there is misreading of any evidence nor any material evidence has been ignored by the trial Court. Resultantly, the impugned judgment of the trial Court dated 31.10.1986 is maintained and appeal filed by the State is ordered to be dismissed.