Punjab-Haryana High Court
Gurnam Singh vs State Of Haryana Through Govt. Food ... on 30 July, 2010
1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Crl. Revision No. 2265-SB of 2005
Date of Decision: 30.7.2010
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Gurnam Singh
.. Petitioner
Vs.
State of Haryana through Govt. Food Inspector, Sirsa
.. Respondent
CORAM: HON'BLE MR. JUSTICE ARVIND KUMAR
Present:- Mr. Gaurav Mohunta, Advocate
for the petitioner.
Mr. Rajeev Malhotra, Addl. A.G. Haryana.
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ARVIND KUMAR, J.
The dismissal of appeal by the learned Additional Sessions Judge, Sirsa, so filed by the appellant against the judgment of his conviction and sentence passed by the learned Chief Judicial Magistrate, Sirsa, under Section 7 read with Section 16(1)(a)(i) of the Prevention of Food Adulteration Act (hereinafter referred to as the Act), has necessitated him to file the instant revision petition impugning the judgments rendered by the Courts below.
The brief facts of the case are that on 15.12.1996 the petitioner was intercepted by the Food Inspector Om Parkash Kalra along with his team while he was having in his possession 20 Kgs. of cow milk, which allegedly was for public sale contained in a drum. The Food Inspector take the sample of milk by purchasing 750 Mls. against the payment of Rs.6/-. Three portion of samples were prepared, out of which one was sent to the Public Analyst, Chandigarh and on examination it was found containing milk fat 5.3% and milk solids not fat to the tune of 7.9% as against the prescribed limit of 8.5%.
On completion of usual formalities, a complaint under the Act was filed, wherein the accused was summoned. Complainant Om Parkash 2 appeared himself as PW1 and on the basis of his testimony, finding a prima facie case under Section 16(1)(a)(i) read with Section 7 of the Act, he was accordingly charge-sheeted, to which he pleaded not guilty and claimed. Thereafter, complainant again appeared in the after-charge evidence as PW1 and also examined Dr. M.R. Bishnoi, one of the team members as PW2 and Purshottam Singh, Assistant, Office of Local Health Authorities as PW3.
When examined under Section 313 Cr.P.C., the accused denied the prosecution allegations and pleaded false implication. According to him, he was taking the milk for using the same in the marriage of his relation and got examined one Devi Lal as DW.1.
The learned trial Court disbelieved the defence of the accused and held him guilty under the aforesaid Sections and sentenced him to undergo rigorous imprisonment for one year with a fine of Rs.10,000/- and in default, further imprisonment for two months was awarded.
The appeal, as noticed above, filed by the accused was dismissed. Hence this revision petition.
I have heard learned counsel for the parties and with their assistance have gone through the records of the case.
In the instant case, milk fat has been found to be 5.3% in the sample against the prescribed limit of 4% whereas milk solids not fat 7.9% against the prescribed standard of 8.5%. Thus, milk fat was more than the prescribed limit, but the milk solids not fat were marginally less. The argument that has been addressed is that the milk was not stirred and made homogeneous by the Food Inspector at the time of taking of sample. There is no dispute to the proposition of law as has been held by the Hon'ble Supreme Court in the case of State of Haryana Vs. Dayanand 2004(7) Supreme Court Cases 670 that the Court cannot take assumption that there was improper stirring against a factual foundation and the available evidence that the sample milk in question was properly stirred as required by the law and the sample was made representative and homogeneous. But in the present case, the evidence lacks with regard to the mixing of the milk thoroughly making it homogeneous before taking the sample. In Chhajju Ram Vs. State of Haryana 2006(4) SCT 757, it has been observed that if a sample was taken without mixing the milk thoroughly or without making it homogeneous, its contents would not be in the same quantity in the lower 3 portion as those in the upper part. The relevant observations are as follows:-
"... 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 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 accumulates 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 instant case, in none of the memos prepared at the spot while taking the sample there is any mention with regard to the stirring of the milk, mixing the milk thoroughly and making it homogeneous. It is only for the first time in the complaint Ex.PF there has been a mention that the milk was purchased after stirring the whole contents properly and made uniform for analysis. This complaint is only a printed proforma. The Food Inspectors simply fill in blanks and thus, does not exactly represent the acts which actually performed by the Food Inspectors before taking the sample. This also can be a after-thought, as has been held in the case of State of Punjab Vs. Munshi Ram & Ors. 1992(1) RCR (Crl.) 47, wherein the fact of stirring of the milk had not been mentioned in any of the memos prepared at the spot and figured for the first time in the complaint, it was held that the 4 complaint which has been filed subsequently is an after-thought and improvement.
There is another feature against the prosecution. It has come in the evidence of Food Inspector O.P. Kalra (PW1) that he had stirred the milk with the help of milk measure, which is not suffice as stirring of milk with milk measure will result in blowing it only and unless the milk is stirred with deep probe, clockwise and anti clockwise and unless the milk measurement goes bottom of the drum, it cannot be said that the milk was properly stirred or made homogeneous, making it of a representative nature.
In State of Rajasthan Vs. Kachav 1979(11) FACT 359, wherein the sample was found containing more fats than the prescribed limits, while it was deficient in milk solids not fat, it was held that the sample of milk was not taken after properly stirring it. Kachav's case (supra) has been followed in the case of Lekh Rai Vs. U.T. Chandigarh 1990(1) RCR (Crl.) 479, wherein the milk was stirred with a milk measure and it was held that it is not sufficient to conclude that the milk was properly stirred unless the milk was stirred with a deep probe and stirring it in the said process.
In the case of The State of Punjab Vs. Balwant Singh, 1992 (2) RCR (Crl.) 57, it has been held as under:-
"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 anti-clockwise 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."
The case, if taken from another angle, deficiency of milk solid and not in fat may indicate that either the sample was not properly taken and analyzed, as already discussed above or the cow was not properly fed. The cattle being not properly feed has already been deliberated in various judgments. In Hans Raj Vs. The State of Punjab, 1980(2) Prevention of Food Adulteration Cases 396, it has been observed as under:-
5"... it had necessarily to be inferred that no water had been added to the milk and in such a case the mere circumstance that non-fatty solid contained below the standard prescribed by the rules could justify the inference either that the cow from the udders of which the milk was drawn was not given the proper feed or that the Public Analyst's report was erroneous, but not that the milk in question, was not pure."
In this context, a reference can also be made to the case of Ujagar Singh Vs. The State of Punjab, 1980(1) Prevention of Food Adulteration Cases 432 and to the case of State of Punjab Vs. Mohinder Singh, 1991(3) Recent Criminal Reports, 304, wherein following the case of Hans Raj (supra), it has been held as under:-
"In view of the above authorities, it is clear that when the milk is found deficient in milk solids not fat it cannot be said that the milk is adulterated but the only inference that can be drawn is that the cow was not properly fed. The learned trial court in these circumstances was justified in arriving at a conclusion that the respondent could not be held liable for selling adulterated milk."
In the similar circumstances, the Hon'ble Supreme Court in the case of Administrator of the City of Nagpur Vs. Laxman & Anr. 1995 Supp(1) Supreme Court Cases 247, held that:
"... The whole question is whether the sample of cow milk is adulterated so as to attract the penal provision of the Act. Learned Magistrate who acquitted the respondent who was a small milk vendor noted that the fat percentage is 6% as against 3.5% which is more than the standard prescribed for cow milk. The only shortfall was that SNF was 7.3% where it ought to have been 8.5%. further, it noted that the total solids are 13.3% which is again more than the satisfying standard of cow milk. Under these circumstances, we cannot say that 6 Courts below have erred in acquitting them giving the benefit of doubt to the respondents. The appeal is, therefore, dismissed. However, other questions of law which have been debated by the Courts below do not really matter, therefore, we do not propose to examine the same."
In the present case also, as discussed above, percentage of the fat was higher than the minimum prescribed while the milk solids not fat were deficient. The only inference that can be drawn is that either the sample was not properly taken or analyzed or that the cattle was not properly fed.
Resultantly, the revision is accepted, conviction and sentence of the petitioner is set aside and he is acquitted of the charge against him. The amount of fine, if already paid by the accused, be refunded to him.
(ARVIND KUMAR) JUDGE July 30,2010 Jiten