Bombay High Court
Dilip Dattatraya Pukale And Anr. vs State Of Maharashtra on 2 September, 1986
Equivalent citations: 1986(3)BOMCR505
JUDGMENT V.S. KOTWAL, J.
1. An unusual phenomena was noticed when the sample of milk was collected by the Food Inspector, purporting to be skimmed milk and the report of the Public Analyst as well as the certificate of the Director showed that it contained fat contents more than as required under the rules. Therefore, this is a case where more fat contents are found in the milk though it is true that for the purpose of skimmed milk the percentage should have been less. According to the prosecution, on 5th December, 1974 at about 7-30 a.m. the complainant Food Inspector Shri Jangude along with Food Inspector Tiwari visited the premises of the present petitioner, who was original accused No. 1, who runs milk Dairy in partnership with his brother, who is original accused No. 2 while the firm was made originally accused No. 3. The milk sample was collected from the pot which was purported to be sold as skimmed milk for which receipt was passed, formalities were observed when the sample was divided into three parts and with the addition of necessary chemical, the three parts were properly sealed as panchas were taken by the Food Inspector at the spot. The other procedural formalities were then followed when notice was issued to the first petitioner when certain information was collected. In due course one sample was sent to the Public Analyst, who reported 3.5 percentage of fat which was in excess of the requisite percentage of fat in skimmed milk as per the rules, which prescribed 0.5 percent fat. The accused himself sent the sample that was given to him to the Laboratory at Calcutta and the Director of the said Laboratory had analysed and certified that the sample contained 3.2 percent of fat. It is on the basis of these allegations that the accused sold adulterated milk that the two accused were prosecuted along with the firm in Criminal Case No. 4698 of 1982 before the learned Judicial Magistrate, First Class, Solapur for offence under section 7(i) read with section 3(i)(a) of the Prevention of Food Adulteration Act.
2. Total denial was the defence of the accused. The said defence, however, was partial inasmuch as the visit of the Food Inspector was not specifically denied. However, it was suggested through the cross-examination that what was really intended to be purchased was not the skimmed milk and secondly the processing of separating the fat from the milk was not done at that time because the fat separating machine was out of order.
3. The learned trial Magistrate accepted the prosecution case and rejected the defence of the accused, and held that the accused sold adulterated milk and thus both the accused as well as the firm were convicted for the said offence imposing a sentence of R.I. for six months and fine of Rs. 1000/- in default further R.I. for three months in so far as present petitioner is concerned while original accused No. 2 was sentenced to simple imprisonment till rising of the Court with the fine of Rs. 1000/- while the firm was sentenced to pay a fine of Rs. 1000/-.
4. The convicted accused carried the matter in Criminal Appeal No. 174 of 1983 before the learned Additional Sessions Judge, Solapur challenging the validity of the said conviction. They met with partial success inasmuch as the conviction against accused No. 2 quashed while the conviction against accused Nos. 1 and 3 was maintained. It is this order dated February 5, 1985 that is being challenged in this Revision Application.
5. Shri Patankar, the learned Counsel for the petitioners mainly contended that the evidence regarding the collection of milk sample and skimmed milk is thoroughly unsatisfactory and the defence is probabilised on the basis of various circumstances. He also raised several other points which have been canvassed in the Sessions Court including the question whether the finding of higher percentage of fat would amount to treating the milk as adulterated. Shrimati Manjula Rao, the learned Public Prosecutor for the State, adopts more or less same reasons assigned by the learned Additional Sessions Judge and thus she supports the order of conviction.
6. As stated, the peculiarity of this proceeding is that the milk that was sold contained higher percentage of fat than what is prescribed under the Rules and which prescription applies to the skimmed milk. It is true that the field in revisional jurisdiction is a restricted one and the entire process of re-appreciation is not permissible. However, as the grievance was made by Shri Patankar, the learned Counsel, the evidence on merit does not inspire sufficient degree of confidence on the basis aspect and therefore, notwithstanding the limitation in this field it is difficult to sustain the validity of the conviction.
7. The evidence mainly consists of the complainant Food Inspector Shri Jangude, and his colleague Food Inspector Tiwari. The prosecution examined panch Amarnath. Panchnama is at Exhibit 27, but it is apparent that the panch has not supported on some vital points. Some of the features inescapably on evidence have serious impact on the prosecution. The incident occurred at 7-30 a.m. in the premises of the Dairy when accused Nos. 1 and 2 were present. The evidence makes it clear that the milk was stored in different pots. No board was displayed about the rates of different kinds of milk nor any label was pasted on the pot showing the quality of milk that was stored therein. Though it is contended by the complaint that at about that time though 5 to 6 customers were purchasing the milk he could not give any detailed and none of them has been examined. This assumes importance because accused has denied this fact and it is further contended that the sale of milk was not in progress at all and it could not be done because the fat was not yet separated as the machine was not in working condition. Non-examination of any such customer, whose names could well have been noted down, assumes importance in the context, of the evidence. The panch Amarnath Ganji did not support the complainant in that behalf that there was sale of milk in progress. Then there is vital admission, which is given by the Food Inspector Tiwari and thus could not be accidental slip. According to him, milk was stored in different pots and milk was of different variety and quality. He has asserted that the sample of milk was taken from one pot while another sample was taken from another pot. He wanted to clarify that one sample pertained to skimmed milk while the other sample pertained to other quality of milk, which he termed as she buffalo milk though he could not clarify further in that behalf. Both these samples were purchased and those were divided in three parts of different samples and thus all the parts were sealed. It is rather difficult to find out which part contained skimmed milk and which part contained other milk. The complainant for obvious reasons did not bother to refer to purchase of two kinds of sample but restricted to only purchase of one sample and that according to him, was skimmed milk. The object was apparent, which does not require any comments. As stated Food Inspector Tiwari did not make any mistake and this fact is mentioned in the panchanama Exhibit 27. Obviously, therefore, the Food Inspector---the complainant was inclined to hold back from the Court an important information on material point which unfortunately was explained and exposed by the other material witness Food Inspector Tiwari. The evidence does not positively establish that what was sold by the accused to the complainant was really sold as skimmed milk but merely a sample was taken from that pot. According to Shri Patankar, the learned Counsel, as per the rules prescribed under the Act, the toned milk would require 3 per cent of fat, while double tonned milk require 1.5 percent of fat whereas good quality of milk would require more fat which may be in the vicinity of the percentage found in the sample, that may not be strictly necessary to be investigated into in this proceeding. As to what was the quality of milk that was purchased as per second sample has been obviously not clarified by the prosecution. As stated, the fat percentage found in the sample was 3.5 as per the Public Analyst and 3.2 as per the Director, Calcutta laboratory. It is obviously not clear from the evidence as to what was sold was really skimmed milk. No board was displayed about the various qualities of milk nor any enquiry in that behalf was made. It is clarified as to what was the rate of different quality of milk. The learned Magistrate has referred to the evidence of Food Inspector Tiwari and in particular to the admission that he did notice the fat separating machine and that machine was not working at that time. The accused himself has reiterated this aspect contending specifically that by the time when the Food Inspector arrived while processing of separation of fat was not complete as the machine was not working and if that be so, contends the accused, then the commodity that was alleged to have been sold to the complainant could not be skimmed milk because whole process of skimming milk was not over by that time. This fits in with several circumstances which are indicated above, including stopping of machine, absence of rates and board, utter absence to clarify whether the pots really contained skimmed milk, purchase of two samples of different quality of milk, anxiety of the complainant to suppress this fact and also in the absence of any cogent evidence that what was sold was skimmed milk, the panch, has not supported the prosecution as according to him when he went to the spot on being called by the complainant, the samples were already taken and he merely signed the seals. No attempt has been make to get in his cross-examination as to whether any enquiry was made as to what was sold was skimmed milk.
8. The net result, therefore, is that the evidence on most fundamental aspect of this proceeding is far from convincing , though unfortunately these aspects were missed by both the courts below and more concentration was directed on other track. Under these circumstances when such an important feature has been completely missed, a justification obviously flows out of this infirmity to upset the finding even in revisional jurisdiction. In view of this conclusion it is not necessary to consider the other aspect, which was sought to be canvassed on behalf of the petitioner. Consequently, therefore, the impugned order of conviction is un-sustainable on this premise itself.
9. Rule made absolute.
10. The impugned order of conviction and sentence recorded by the trial Court and confirmed by the learned Additional Sessions Judge is set aside and both these petitioners (Original Accused Nos. 1 and 3) respectively are acquitted of all the charges levelled against him.
11. Bail bonds of petitioner No. 1---original accused No. 1 stand cancelled. The fine if paid be refunded.