Uggar Sein vs State of Haryana

A.S. Nehra, J. (Oral)

The petitioner was convicted under Section 16(1)(a)(i) of the Prevention of Food Adulteration Act by Judicial Magistrate Ist Class, Ambala Cantt and was sentenced to undergo Rigorous Imprisonment for six months and to pay a fine of Rs. 1000/ and in default of payment of fine, he was ordered to undergo Rigorous Imprisonment for one month. The appeal of the petitioner was dismissed on 1031986 by the Sessions Judge, Ambala. Hence this criminal revision.

Briefly, the facts of the case are as follows :

On 2361981, Sh. Natha Singh, Food Inspector was present near Octroi Post Arya Nagar, Ambala Cantt. alongwith Dr. H.R. Goshal. The petitioner came on a bicycle carrying 15 litres of milk in a drum and he was stopped. The Food Inspector disclosed his identity and thereafter served notice Ex. PA upon him and then he purchased 660 mililitres of milk for analysis on payment of Rs. 2/ and issued receipt Ex. P.B. The milk so purchased was divided into three equal parts and put in three dry and clean bottles. 18 drops of formalize were added as a presentative in each of the said bottles. The bottles where then labelled corked and wrapped in a brown paper. The paper slip issued by the local Health Authority was fixed on each bottle. The bottles were then again tied with a strong thread and were sealed with the seals of the Food Inspector and Doctor. The thumb impressions of the petitioners were obtained in such a manner that they partly appeared on the wrapper and partly on the paper slip. Spot memo Ex. PC was prepared which was thumb marked by the petitioner and attested by the Doctor and Mohinder Singh another witness who remained associated during the taking of the sample. One such sealed bottle was sent to the Public Analyst along with a copy of the memo in form VII. A copy of memo in form VII was sent to the Public Analyst. The remaining two bottles were deposited with the Local Health Authority. The report of the Public Analyst Ex. P.D. was received declaring the sample as adulterated i.e. milk fat 27.5% deficient and milk solids not fat 46% deficient of the minimum prescribed standard. Thereafter complaint Ex. P.E. was filed against the petitioner. The petitioner was informed about the launching of the proceedings against him through letter Ex. PF. A copy of the report of the Public Analyst was also sent alongwith the letter PF. The registered letter was received back undelivered and the local Health Authority gave intimation to the Food Inspector to this effect vide letter Ex. PG.

On notice, the petitioner appeared. Thereafter, Shri Natha Singh Food Inspector appeared as PW 1 and reiterated the facts as stated above and closed his case for charge.

The petitioner was given the right to recross examine PW1 Shri Natha Singh, Food Inspector and Sh. Natha Singh was crossexamined. Thereafter, Dr. H.R. Goshal, PW2 appeared and supported the version of the Food Inspector. Ex. PX was tendered in evidence.

The petitioner when examined under Section 313 Cr.P.C. denied the allegations levelled against him. He stated that he was not carrying milk for sale; that he was taking the same at the marriage of his brotherinlaw''s daughter. When called upon to enter defence, he examined Smt. Jarnailo Devi, DW 1, Mohinder Singh DW 2 and Om Parkash, DW 3. DW 1 and DW 2 supported the defence plea of the accused that the accused had brought the milk for the marriage of the daughter of Jarnailo his sisterinlaw. DW 3 has also stated that the accused belonged to his village and that he is not selling milk but doing agriculture work.

The defence version of the petitioner was rejected by the learned lower court.

The law is well settled that before milk sample is taken, which is a liquid, it should be stirred and made homogeneous. The reason for this is that the milk which is a liquid, contains various constituents in different forms Some are very thoroughly mixed up in it but some though, are mixed in it, are lighter and do not have the same specific gravity and weight as the other constituents have. Fat for example, is one which differs in some ways from the other constituents of the milk. It is lighter in weight and it does not remain mixed up with the remaining liquid for a very long time. If the milk is allowed to stand for some time its fat content rises to the top and accumulate there. If a sample is taken without mixing the milk thoroughly or, in other words, making it homogeneous then the fat being at the top, its contents will not be in the same quantity in the lower portion as those are in the upper part. It is for this reason that the courts have laid down that before taking the sample of milk it has to be made homogeneous so that the sample remains representative.

In the case in hand, the evidence of both the witnesses is that the sample before it was taken was made homogeneous. The complaint does not contain any reference about the stirring of the milk. It has been held in several cases by this Court that if it is not mentioned in the complaint that the milk was stirred before the sample was taken, then the accused is entitled to acquittal. This matter was gone into recently by a Division Bench in Criminal Appeal No. 502 DBA of 1984, State of Punjab v. Jagan Nath, 1986(2) PLR 466, wherein it was held that there is no statutory requirement that such a fact should be mentioned in the complaint, It was further held :

"There is, therefore, no gainsaying that before a sample of milk is taken by the Food Inspector he must ensure that the milk has been made homogeneous. Otherwise the report of the analyst is bound to be misleading regarding the contents of fat and solids not fat. While assessing the value of the report it becomes the duty of the court to ascertain if the sample of milk had been properly taken by the Food Inspector. The proper sample would only be of the milk made homogeneous by stirring. If the court comes to the conclusion that the milk was not properly stirred and made homogeneous it is not bound to rely upon the report of the Public Analyst to base conviction of the milk vendor. To come to a conclusion that the milk was made homogeneous when the sample was taken the contents of the complaint have necessarily to be looked into. In case the factum of stirring of the milk is missing in the complaint, it is open to the trial Court to entertain doubt on the statements of the Food Inspector and his witnesses in Court in respect thereof.

An analogy can be drawn from a private complaint before a Magistrate, as also one made before the police in a cognizable case in the shape of a first information report. If an occurrence takes place, the complainant in such private complaint or in the first information report, as the case may be may give a narration of the same withholding the names of the eye witnesses or some other salient facts. As long as the allegations constitute an offence the cognizance of the case cannot be refused by the Court. But, at trial these omissions would assume importance and the proof adduced before the Court regarding the facts so omitted in the First Information Report would be looked with suspicion and the benefit of doubt will become available to the accused. Such a situation will arise not because the mention of those facts was a necessary requirement of the complaint to constitute the offence but because the omission would make the evidence which is produced to prove those facts, suspect as an afterthought. The omission is not inherently fatal to the prosecution case but the Court while assessing the evidence would certainly be retitled to take the view that evidence of the facts not mentioned in the complaint or the first information report cannot be safely relied upon. By the same reasoning, although it may not be necessary to mention the factum of making the milk homogeneous for maintainability of the complaint, yet it would be open to the Court not to place implicit reliance on the evidence produced in respect thereof in the Court on the ground that in the light of the omission in the complaint this evidence could possibly be an afterthought. We must hasten to make it clear that the Court is not bound to reject the evidence of stirring of the milk simply because this fact is omitted in the complaint. But the view taken by us is that the trial Court cannot be faulted in giving benefit of doubt to the accused if on taking overall view of the evidence it arrives at the conclusion that due to the commission in the complaint it would be hazardous to rely upon the evidence to hold the milk vendor guilty of adulterating the milk."

The circumstances are to be proved by the complaint. There is no proforma prescribed for the drafting of the complaints. Necessary facts which constitute an offence have to be mentioned in the complaints. If some essential facts or essential requirement which are a prerequisite before doing an act is not mentioned in a complaint. then the accuse, in given case, has the right to say that the prosecution has made an improvement in its case. It is a practice in the States of Punjab and Haryana that the Food Inspectors have got a form of complaint printed. They simply fill in the blanks in accordance with the facts of the cases before filing those in Courts. Such a practice is not healthy as such proformas are not comprehensive to contain all the fact of every conceivable case it is high time that the Food Inspectors realize that such printed proformas which are deficient in certain aspects should not be use for filing the complaints. Almost in every case, which I have come across, the mention of the stirring the milk is singularly absent. In many circumstances, as in this case, this fact assumes importance to know whether the Food Inspector has performed his duties appropriately and in accordance with the accepted rules of taking samples. It is very easy for a witness to say such a fact at the time of evidence. If this improvement is allowed in every case then a day will come when the Food Inspectors will omit to mention in the complaints how the sample was taken, how and what type of preservative and what quantity of it, was added to the sample, I, therefore, not feel inclined to grant this latitude to the Food Inspectors to make improvements in the case under the Prevention of Food Adulteration Act as it has been done in this case by mentioning only at evidence stage about the stirring of the milk. On evidence, I find that it is a case of deliberate improvement.

For the foregoing reasons, criminal revision petition is allowed, conviction and sentence of the petitioner are set aside. Fine if paid be refunded to the petitioner.