Punjab-Haryana High Court
Sawaran Singh vs State Of Haryana on 19 May, 1997
Equivalent citations: 1998CRILJ204
Author: Sarojnei Saksena
Bench: Sarojnei Saksena
ORDER Sarojnei Saksena, J.
1. The petitioner-accused is assailing his conviction under Section 16 of the Prevention of Food Adulteration Act, 1954, whereby he is sentenced to undergo rigorous imprisonment for six months along with a fine of Rs. 1,000/- in default of payment of fine, to undergo further rigorous imprisonment for one month, which is affirmed by the lower appellate Court.
2. Briefly stated, the facts are that complainant J.S. Chauhan, Government Food Inspector, intercepted the accused on April 26, 1988, near Bus Stand Shahabad, Tehsil Thanesar, District Kurukshetra. Accused was carrying 65 litres of cow's milk in three drums for sale. The complainant purchased 750 MLs milk from one of these drums after paying its price. He divided the sample in three equal parts as per the rules. One such sample was sent to the Public Analysit for analysis, who found that the sample contained 5.7% milk fat and 7.8% milk solids not fat, though as per Rule A-11.01.11 of Appendix 'B' of the Prevention of Food Adulteration Rules, 1955, the standard of milk fat and milk solids not fat has been prescribed as 4.0 and 8.5 per cent respectively. Thus, the milk was found deficient in milk-solids-not fat to the extent of .7 percent. On these facts the complaint was lodged against the accused.
3. On the request of the accused, second sample was sent to the Director, Central Food Laboratory, Mysore, for analysis. As per report of the said Laboratory, sample contained 5.4 per cent milk fat and 8.2 per cent milk-solids-not fat.
4. During trial the complainant examined himself. Relying on the statement of the complainant, the trial Magistrate held the accused guilty of the said offence and convicted and sentenced him, as stated at the very outset. His appeal was also dismissed.
5. The accused-petitioner's learned counsel, relying on Chand Khan v. State of Punjab 1993 (3) RCR 240; State of Punjab v. Gian Chand 1991 (3) RCR 278; Lekh Raj v. U.T. Chandigarh 1990 (1) RCR 479; Prem v. State of Haryana 1996 (1) RCR 152 and State of Punjab v. Balwant Singh 1992 (2) RCR 57, contended that in this case the complainant has admitted in the cross- examination that the milk was stirred with the measure which the accused was carrying, though this fact is not mentioned in the complaint or in any of the panchanamas prepared at the time when the sample was taken. The accused was carrying milk in big drum, from which the sample was taken. Unless the milk was stirred properly clock-wise and anti-clockwise and was made homogeneous, it cannot be said that it was a representative sample. Therefore, the fat contents were more as per both the reports and it was deficient in milk-solids-not fat. According to the learned counsel, this deficiency cannot be said to be because the milk was adulterated; it can be attributed due to the wrong method of sampling or because the cow was not fed properly a day before.
6. Learned counsel also submitted that the lower Court has fallen into an error in relying on a single Bench judgment of this Court in Baldev Raj v. State of Haryana 1984 (1) FAC 320, because the facts of that case are similar to the facts of this case.
7. During arguments, the accused-petitioner's learned counsel read over the statement of the complainant. The complainant has stated on oath that milk was stirred and made homogeneous. In the cross-examination he made it clear that the milk was stirred with the measure which the accused was carrying. He has denied the suggestion that the milk was not properly stirred. When the reports of the Public Analyst as well as of the Director, Central Food Laboratory were put to the accused under Section 313, Cr.P.C. the accused stated that as there is difference in the report of the Public Analyst as well as that of the Director, Central Food Laboratory, it only indicates that the sample was not properly taken. His plea is that the sample was not taken as per the. provisions of the Act and the Rules.
8. Admittedly, as per provisions of the Prevention of Food Adulteration Act in Haryana, cow's milk should contain milk fat 4 per cent and milk-solids-not fat 8.5 per cent. In this case when the milk sample was analysed by the Public Analyst, he found that the sample contained milk fat 5.7 per cent and milk-solids-not fat 7.9 per cent. When another sample was sent to the Director, Central Food Laboratory, he found that it contained milk fat 5.4 per cent and milk-solids- not fat 8.2 per cent. The prosecution could hot explain the circumstances under which this variation has come in both the reports.
9. Further, from these reports it is evident that the sample contained more fat than what is prescribed for cow's milk in Haryana. It was only deficient in milk-solids-not fat.
10. A single Bench of this Court in Lekh Raj' s case (supra) held that if the Inspector has stated that he stirred the milk with milk measure before taking the sample and on analysis it was found that the sample contained more fat but less solids. On these facts it was held that milk was not properly stirred. The learned Judge observed that milk shall be stirred with deep probe or by transferring the milk to another vessel and stirring it in the process. Stirring of milk with milk measure would result in blowing it and separating fat contents from the milk solids. The accused was acquitted on that count.
11. A Division Bench of this Court also considered somewhat similar facts in Gian Chand's case (supra). In that case sample of buffalo's milk was taken. It was not deficient in milk fat. Hence it was held that it cannot be said that the milk was not pure. The only inference drawn was that the buffalo was not properly fed. Accused was acquitted.
12. A Division Bench of this Court in Balwant Singh's case (supra) held that when the Food Inspector states on oath that the milk was stirred with measure of 1 K.G. it is not sufficient as there was no evidence that the milk was stirred clockwise and anti-clockwise and the milk measure had reached the bottom of drum and milk lying at the bottom was thoroughly mixed with upper layer of the milk in drum. In that case also the milk was marginally deficient in milk- solids-not fat. Hence the accused was acquitted.
13. Relying on State of Punjab v. Som Nath 1991 (3) RCR 123, wherein observations made in earlier judgment of this Court in Hans Raj v. State of Punjab 1980 (2) FAC 396, were approved, a single Bench of this Court in Chand Khan's case (supra) acquitted the accused. In that case also the milk had more fat content but there was marginal deficiency in milk solids not fat. The observations were "When the fat contents in the milk is much higher than the minimum prescribed standard it has necessarily to be inferred that no water had been added to the milk and that the non-fatty solids contained below the standard prescribed could justify that either the cow from the udders of which the milk was drawn was not given the proper food or that the Public Analyst's report was erroneous but not the inference that the milk in question was not pure."
14. In Prem' s case (supra) also the cow's milk was found deficient in milk solids not fat, though fat was in excess. There was marginal variation in the milk solids not fat than prescribed standard. On these facts it was held that it can be imputed to the Food Inspector having not stirred the milk properly so as to make it homogeneous and sample of milk cannot be said to be representative sample of the whole by any stretch of imagination. The accused was acquitted.
15. In Darshan Lal v. State of Haryana 1995 (1) FAC 79, as the milk was found deficient in milk solids not fat only by 0.4 per cent, conviction and sentence imposed by the Courts below was set aside.
16. In Baldev Raj's case (supra) there was no evidence that the Director, Central Food Laboratory had shaken the milk contained in the bottle before analysing it. On that count accused claimed acquittal. Repelling that contention the learned Judge held that if the sample is not stirred properly, only the fat contents come to the top as the milk cools down. Thus, if the sample is taken from the top without stirring the milk thoroughly, the sample might be very high in fat contents, but no authority has been cited to show that milk solids not fat also come to the top as milk cools down or those settle at the bottom. He also observed that the report of the Public Analyst and that of the Director cannot be doubted merely on the ground that they have not mentioned in their respective reports that they had shaken the sample thoroughly. If the petitioner wanted to prove that the sample had not been properly analysed, he could have summoned the Director, Central Food Laboratory and could have examined him. Otherwise, the presumption can be raised that the analysis was done according to the procedure. This authority is distinguishable on facts because in that case this was not the plea that the sample of the milk was not properly taken. The objections were raised with regard to the reports of the Experts on the ground that they have not mentioned in their reports that before analysing the sample they had made it hornogeneous.
17. Under the provisions of the Act as well as the Rules framed there under, it is the duty of the Food Inspector not only to mention in the complaint but also to state on oath how he made the milk homogeneous before taking the sample there from. Under the rules a representative sample of the milk is required to be taken so that on analysis it can be determined as to what were the contents of the milk. In this case the milk was being carried by the accused in three drums. He was having 65 litres of milk with him. The complainant has not stated as to what was the circumference of the mouth of the drum from which sample was taken and what was the weight of the measure. He has simply stated in the cross- examination that he stirred the milk with the measure which the accused was carrying. If it was a big measure and the circumference of the mouth was small, then the conclusion is inevitable that he could not have stirred the milk properly. For proper stirring of the milk and making it homogeneous, it is essential that it should be stirred clockwise or anti-clockwise or it should be poured in a different utensil and then stirred properly, so that it can be said to be a representative sample.
18. The Public Analyst as well as the Director, Central Food Laboratory, found that the sample contained more fat than prescribed percentage of fat. As per Public Analyst's report, which stands superseded by the report of the Director, Central Food Laboratory, milk-solids-not fat were found as 7.5 per cent. The Director found the same as 8.2 per cent. Thus, it was deficient only by 3'/2 per cent (sic) as per Director's report. This deficiency can be attributed to the wrongful method of taking the sample of milk.
19. Accordingly, revision is allowed, benefit of doubt is hereby given to the accused petitioner and he is acquitted of the said charge. Fine, if deposited, be refunded to him.