State of Punjab vs Jai Gopal

S.S. Dewan, J.—This is an appeal filed by the State of Punjab against the order of acquittal dated November 29, 1980, passed by the learned Sessions Judge. Rup Nagar.

The original prosecution arose out of the proceedings under the Prevention of Food Adulteration Act, 1954 (hereinafter called the Act). The article in question was milk a sample whereof was taken by Dr. M.L. Jaiswal, Government Food Inspector, on 28th of March, 1978. The said sample was analysed, as per report of the Public Analyst, Exhibit P.E. indicate that the milk in question was deficient in milk solids not fat by 8.3% of the minimum prescribed standard. Considering the oral and the documentary evidence led by the prosecution which consisted of Dr. Jaiswal, Government Food Inspector, Dr. N.K. Singla and Avtar Singh, the learned trial Magistrate held that the prosecution was able to prove its case against the accused respondent and accordingly convicted him u/s 16(1) (a) (i) of the Act and sentenced him to pay a fine of Rs. 1000/-. The respondent went up in appeal and the learned Sessions Judge relying on the Single Bench decisions of this Court in Hans Raj v. The State of Punjab 1980 F A. J. (P&H) 288 and Ujagar Singh v. The State of Punjab 1980 (1) F.A.C. (Pb. & Hary.) 432 rather cryptically acquitted the respondent for the following reasons:

On making analysis, the Public Analyst found the contents of the sample bottle received by him to be having milk fat 5 4% as against the minimum prescribed standard of 4% while milk solids not fat 7.8% as against the minimum prescribed standard of 8.5% vide his report, Exhibit P.E. It is evident that the milk fat contained in the sample was higher than the minimum prescribed standard and there was deficiency only in respect of milk solids not fat to the extent of 8.5%. It being not possible to take out milk solids not fat from the milk without reducing or effecting the fat contents, inference can hardly be drawn from the said result of the Analyst that the appellant had intentionally effected any adulteration in the milk.

This matter is now concluded by a Division Bench decision of this Court in State of Haryana v. Harpat etc (1982) 9 Cr. L.T. 129 wherein it has been held that the standards of various constituents of milk have been prescribed under the Act and even if there is negligible or marginal deviation from the prescribed standards laid down by the Rules then selves cannot be ignored. Moreover, more milk fat than the prescribed standard is also adulteration as it can be achieved by some other dubious means by adding some sort of cheap oil into the milk. What is to be seen in these cases is whether different constituents of the milk are in accordance with the standard prescribed under the Rules. If the constituents are not in accordance with the prescribed standard, the only conclusion which can be derived is that the milk is sub standard. On this point we do not agree with the appellate Court and set aside its finding.

I shall now deal with the objection based on Rule 7 (3) of the Prevention of Food Adulteration Rules which reads as under:--

The public analyst shall, within a period of forty-five days from the date of receipt of any sample for analysis, deliver to the Local (Health) Authority a report of the result of such analysis in Form 111:

Provided that where any such sample does not conform to the provisions of the Act or these rules, the public analyst shall deliver four copies of such report to the said authority:

Provided further that the public analyst shall forward a copy of such report also to the person who purchased an article of food and forwarded the same to him for analysis under S. 12 of the Act.

Now it is an admitted position that the sample was taken on 28th of March, 1978 and it was received in the office of Public Analyst on 29th of March, 1978 and the report of the public analyst dated 12th of May 1978 was received in the office of Public (Health) Authority on 25th of May, 1978. In so far as these dates are concerned, there is no dispute in the face of a clear admissions given by the complainant as also from the exhibited documents. The interval between the date of the receipt of the sample by the Public Analyst and the date of delivery of the report was more than 45 days. There was, therefore, contravention of Rule 7(3) of the said Rules. Mr. Prashar, appearing on behalf of the appellant, has contended that since the respondent has not taken any steps to have the sample analysed by the Central Food Laboratory, no prejudice has been caused to him by the delay. The argument is that it is incumbent that the person who sets up a case of delay, should make out that he has been prejudiced by the delay In other words, the stand taken is that the violation of Rule 7(3) vitiates the proceedings only if prejudice is made out. I am unable to agree to the above interpretation. No doubt in the present case, the respondent did not choose to send the sample for analysis to the Central Food Laboratory but the omission need not be a ground for exonerating the Public Analyst from the consequences, of the violation of his duty under Rule 7 (3). This provision of the Rule before amendment contemplated forwarding of such report within 60 days and that has now been reduced to 45 days after amendment, and the present case is covered by the said amended provision. To hold that Rule 7(3) is only directory is to encourage slackness on the part of the Public Analyst to the detriment of the accused The very fact that the period stands reduced to 45 days shows that the framers of the Rule were keen that the Public Analyst should discharge his duties within the period prescribed Rule 7(5) is mandatory and that violation of the Rule vitiates the prosecution Similar view was taken by a Division Bench of the Bombay High Court in the case of State of Maharashtra v. Jaman Das Vansi Mal Paryar 1981 (II) F.A.C. 92. Having regard to this illegality committed by the Public Analyst we are of the opinion, that the order of acquittal passed by the learned Sessions Judge needs no interference by this Court. We confirm the order of acquittal but, however, on different ground.

In the result, the appeal fails and the same is dismissed.