Delhi District Court
Suresh Chand S/O Shri Ram Saran vs State (Delhi Administration) on 1 July, 2008
: 1 :
IN THE COURT OF SHRI S. K. SARVARIA
ADDITIONAL SESSIONS JUDGE
NEW DELHI
Criminal Appeal No. 11/1999
Suresh Chand s/o Shri Ram Saran
r/o Village Nadhala, Tehsil Baghpat
Distt. Meerut (UP)
...... Appellant.
versus
State (Delhi Administration)
...... Respondent.
Date of Institution : 9.1.1989
Date when the arguments
were heard : 24.5.08 & 2.6.08
Date of judgment : 1.7.08
JUDGMENT
This appeal is directed against the judgment dated 1/12/1988 passed by learned Metropolitan Magistrate convicting the appellant under sections 7/16 of the Prevention of Food Adulteration Act (in short PFA Act) and by : 2 : subsequent order dated 2/12/1980 the appellant was sentenced to undergo rigorous imprisonment for six months and to pay a fine of rupees 1000/ . In default payment of fine he was directed to undergo simple imprisonment for one month. Aggrieved by the judgment and order on the point of sentence passed by the learned Metropolitan Magistrate the appellant has preferred this appeal challenging the same. PROSECUTION CASE:
The prosecution case, in brief, is that on 10/6/1983 the food inspector Shri S. K. Nagpal along with other officials of the PFA department took the cow's milk from the appellant of the quantity of 660 ml and divided this milk in three samples in the bottles and poured 18 drops of Formaline in each of the three sample bottles. One of the sample bottle was sent to the public analyst who found milk fat 5% but milk solids not fat 8.08% in the sample sent to him. The public analyst gave his : 3 : report that the cow's milk did not confirm to the specification and solid not fat were 8.08% in place of minimum 8.5% required. Thereafter, the appellant with the permission of the learned trial court sent another sample taken by the food inspector to Director CFSL Pune whose report dated 17/10/1983 showed that the milk fat in the sample was 5.3% and milk solids not fat 7.8% so the sample was again not found to confirm to the specification of milk solids not fat of 8.5%, minimum required.
CHARGE AND PLEA OF THE ACCUSED:
The notice under section 251 Cr. P.C. for the offences under section 7/16 of the PFA Act was given to the appellant by the learned trial court to which he pleaded not guilty and claimed trial. In the statement under section 313 Cr. P.C. the appellant has denied the prosecution case in to to and has stated that he was not the milk vendor. He was employed in a : 4 : Transistor Manufacturing Company. The milk in fact belonged to Bagga Transport Company where they served tea to the employees. The officials of the PFA department came the and forcibly took the sample of the milk in spite of his protest . No Formaline was added to the sample bottles. His thumb impression was taken under threat and duress. The punchnama was never read over and explained to him and his signatures were obtained under coercion. He was neither the milk vendor nor he deals in the trade of the milk. He admitted that he moved application under section 13 (2) of PFA Act and the second counterpart of the sample was sent to Director Pune for analysis. He reiterated that he was employed in a Transister their manufacturing Company. On the date in question he visited one of his clients who was employed at Bagga Transport Company and there the food inspector forcibly took the sample, out of the milk which was : 5 : kept in the premises of Bagga Transport Company for preparation of the tea to be served to their employees.
EVIDENCE:
In support of its case the prosecution has examined three witnesses in all namely PW1 Shri S. K. Nagpal the food inspector, PW2 Sh S.K. Verma, PW3 Sh M.C. Verma and PW4 Sh C.P. Tripathi, Assistant Sales Tax Commissioner .
PLEA AND DEFENCE OF THE ACCUSED In his statement under section 313 CrPC appellant stated that no price was paid and inspector forcibly took the sample. No efforts were made to join any independent public witness. No formaline was added. No signatures were taken on the witness on the spot. Appellant further stated that neither the milk vendor nor he deal in the trade of the milk.
Institution of prosecution is bad and sanction was invalid.
FINDINGS:
: 6 : I have heard the learned counsel for the appellant in the learned Special Public Prosecutor for the State and have gone through the written arguments filed on behalf of the appellant, the record of the case and the authorities cited, carefully. Despite opportunity the written arguments were not filed on behalf of the respondent.
It is not disputed that the cow milk samples were taken by the food inspector in question in this case. As per report of the public analyst Ex PW2/C the milk fat contents of the sample were 5% as against 3.5 per cent specified. The milk solids not fat contents were 8.08% as against 8.5 per cent specified. But as per the Certificate of the Director CFL, Pune ExPX the milk fat contents in the second sample sent to CFL were 5.3% and milk solids not fat content 7.8%. Although both the reports of the public analyst as well as Certificate of Director CFL show that the milk was of better quality with : 7 : sufficiently above specifications minimum milk fat contents in both the samples but it was marginally inferior with regard to milk solids not fat content. Although the Certificate of Director CFL has superseded the report of the Public Analyst but there is variation in reports with regard to both milk fat content and the milk solids not fat content in analyses of counterpart milk sample is done at both ends. The question arises whether the said difference has any bearing on this case? Can such a difference between the report of Public Analyst is compared to the Certificate of Director CFL be looked into for collateral and ancillary purpose to ascertain whether the sample taken of the cow milk in question was of representative character?
The answer lies in the following case law:
In State v. Mahender Kumar and ors. 2008 (1) FAC 177 (Del), it was held as follows:
"11. While both reports have concurred in the conclusion that the sample was adulterated, the : 8 : variation in the material parameters in the sample sent to each of them is not insignificant.
In the sample sent to the Public Analyst the ash content is 4.04% whereas in the sample sent to the CFTRI it is 6%. The ash insoluble in dilute HCL is 2.55% in the sample sent to the Public Analyst whereas it is 1.95% in the sample sent to the CFTRI. The lead content is Nil in the first and 5.4 ppm in the second. These variations are more than by .3% which is stated to be the permissible limit. It cannot therefore be said that identical representative samples were sent to both the Public Analyst as well as the CFTRI.
In Kanshi Nath v. State even while certain other contentions of the accused were rejected, the contention concerning the samples sent to the two test labs not being representative was accepted and the accused were acquitted. In Kanshi Nath after referring to the judgment of the Supreme Court in Calcutta Municipal Corporation v. Pawan Kumar Saraf 1999 (1) FAC 1 and the judgment of the Full Bench of this Court in Municipal Corporation of Delhi v. Bishan Sarup 1972 FAC 273, this Court observed as under (PFA Cases, p. 227):
Therefore, on the facts of the present case, it can be said that the variation is beyond the acceptable range and would clearly imply that the samples were not representative. In view of this finding and in the background of the law which is well settled, no conviction can be sustained.
: 9 : Following the said judgment of this Court in Kanshi Nath, it is held that in the instant case the variation in the samples sent to the Public Analyst and the CFTRI is beyond the acceptable limits and renders the samples unrepresentative. The conviction of the Respondents can, therefore, not be sustained in law. Accordingly, the impugned order of the ASJ acquitting the Respondents calls for no interference."
In MCD v Jawahar Lal 1980 (II) FAC 145 (Del), it was observed as follows:
"6. Without expressing our opinion with regard to the representative nature of the sample, we are inclined to accept the second submission sought to be urged by Shri Soni. From the certificate of the Director it cannot be inferred that any water had been added to the milk. The nonfatty solid falling below the prescribed standard would only justify an inference that because of the excess in fat contents either the cow was not properly fed or the report of the Public Analyst was erroneous. Shri Randhir Jain, however, contends that to accept this contention would amount to holding as enquiry into the certificate of the Director. Further, no ground has been made out by leading evidence to challenge the correctness of the same which, in law, is : 10 : conclusive of the facts stated therein. That being so, this will be embarking upon the domain of conjectures in accepting the submission of Shri Soni. We do not agree. When asked to explain for the presence of large quantity of fat contents in the sample than the prescribed standard, Shri Jain had no answer. As a matter of fact a question was addressed to Shri .P. Sharma, Public Analyst who was examined as D.W. 1 by asking him to describe reasons for a sample containing 8.14 per cent milk solids not fat and at 5.1 per cent when tested in August 1976. On again being tested on or about 25th January, 1977 would be found to contain 4.8 percent fat and milk solids not fat 7.7 percent. Shri Sharma stated that he could not give any rationable or scientific reasons for such a difference.
7. Admittedly, the sample taken was that of cow's milk and that being so the fat contents ought to be 3.5 percent. Making allowance for marginal difference the fat contents could not be 4.8 percent in cow's milk. There is thus no escape from the inference that either the test conducted was erroneous or that there was imbalance in the fodder fed to the cow which resulted in the high percentage of fat present in it while giving lower percentage in solids not fats. In this view of the matter the question of law, including the one with regard the maintainability of the appeal, are not required be gone into."
: 11 : In MCD v. Lala Ram and anr, 1980 (II) FAC 147 (Del), it was held:
"3. It is true that the certificate of the Director supersedes the report of the Public Analyst and that the report of the Public Analyst cannot be made the basis for recording conviction or acquittal of an accused person, but in the instant case what has shocked us is that the two samples, one sent to the Public Analyst seeking his opinion and the other counterpart sent to the Director seeking his opinion, appear to be absolutely divergent and different from each other. The Learned counsel for the appellant was unable to explain the circumstances under which the divergent results were given by the two Competent authorities in examining the sample. It is for this reason that we have looked into the report of the Public Analyst more so when the consequences involved are penal and the minimum sentence of imprisonment to be awarded to a delinquent person found guilty of having committed an offence under the Act, is 6 months, Rigorous Imprisonment. As per his certificate dt. Dec. 3 1976, the Director found not only "a few dead and living insects" but also "excessive amount of foreign seeds" in the counterpart of the sample. Not only this, the Director did not find any rodent excreta as was found by the Public Analyst. As earlier noted in this judgment, the Public Analyst did not find : 12 : edible seeds other than cumin seeds in the sample and the remark given in his report against the column "Edible seeds other than cumin seeds" was "Nil". Similar remark was given by the Public Analyst in his report against the column "Insect infestation per 100 gms." It is really strange as to how, if the sample was the same, the Director was able to find a few dead and living insects besides noticing excessive amount of foreign seeds, more especially when the Director had certified that the seals of the sample sent to him were intact. We are conscious of the fact that in law the certificate of the Director supersedes the report of the Public Analyst and that it is the certificate of the Director alone which has to be taken into consideration for recording acquittal or conviction against an accused person, but in the circumstances noted above, we are compelled to look into the report of the Public Analyst as well. We may warn that this judgment not be taken as a precedent for comparing the certificate of the Director with the report of the Public Analyst, as in the peculiar circumstances of this case, we were, as noted earlier, compelled to look into the report of the Public Analyst, because it was pointed out by the learned Counsel for the respondents that the counterpart of the sample sent to the Director appeared to be sample of another person rather than of the respondent."
: 13 : The above case law shows that the noticeable difference between the results arrived at by Public Analyst and by Director CFL with regard to analyses of the counterparts of samples taken leads to the inference that at the time of taking sample the food product, i.e., the cow milk in this case was not representative of the bulk of milk present there at the time of taking sample.
On behalf of the respondent State it is argued that the Certificate of Director CFL having superseded the report of Public Analyst the former shall only needs to be looked into in the case and difference between the two in the sample analysis has no bearing in the case. Reliance is placed upon the authority "Jagdish : 14 : Prasad v. State of Delhi" AIR 1982 SC 57, wherein it was observed as follows:
"4. The offence took place nearly eleven years ago and there is no evidence on the record to show what was the extent of insect infestation in the sample when it was taken. A rather interesting feature of this case is that when, on the application of the prosecution, the report of the Director of Central Food Laboratory was brought on the record of the case, the earlier report of the analyst was replaced by that report. The result is that though there is evidence on the record to show that the sample was "highly insect infested" on September 10, 1971 when the Director of the Central Food Laboratory gave his report there is no evidence on the record to show as to what was the state of the sample on October 3, 1970. Shri Bawa Gurcharan Singh argues that in this state of affairs the appellant is entitled to an acquittal but we are not inclined to accept that submission. The evidence on the whole can be accepted as justifying the conclusion that on the date on which the sample was taken, it was insect infested within the meaning of section 2 (ia) (f) of the Act."
In Mathukutty v. State of Kerala , AIR 1988 Kerala : 15 : 60, also relied upon on behalf of respondent State, it was observed as follows:
"15. We are not impressed by the argument that because there is disparity in the results declared by the public analyst and by the Director of Central Food Laboratory and living insects were present at the time of analysis, it has to be assumed that sample contained only eggs or larvae at the time of the sale or that there was rapid growth of insects after the date of sale or that the sample was not insect infested at the time of sale and the percentage of insect damaged matter could have been below 5% or even negligible at the time of sale. The report of the public analyst is superseded by the certificate of the Director. Even if there is wide variation between the Director's certificate and analyst's report, the former supersedes the latter and the superseded report cannot be revived for any purpose. The difference in the percentage of insect infested matter as reported in Ext. P6 and Ext. D1 cannot be an indication of any steady growth of insects or increase in infestation after the sale. One of us in Food Inspector v. Hameed, 1983 Ker LT 901 : (1983 Cri LJ NOC 224), after considering practically the entire case law on the point, including the decisions in Abdul Hameed v. Food Inspector, 1969 Ker LR 922, State of Kerala v. Vasudevan Nair, 1974 Ker LT 617 : (1975 Cri LJ 97) (FB), : 16 : State of Kerala v. P.K. Chamu, 1975 Ker LT 411 and State of Kerala v. K.C. John, 1978 Ker LT 738 : (1979 Cri LJ NOC 48), observed in para 23 :
".....it is settled law that the report of the Public Analyst is superseded by the certificate of the Director which has conclusive effect also. Analysis in the two cases is done by different persons at different laboratories. It would not be surprising if, assuming the best conditions, there is some difference in the results of the two analyses. Even in cases where sampling and analysis is done to the satisfaction of the most exacting standards, there could be variation in the percentage of different components arrived at in the two laboratories. But, once the report of the Public Analyst is superseded by the report of the Director of Central Food Laboratory, there is no report of the Public Analyst available in the eyes of law for comparison with the certificate issued by the Director. The court cannot, therefore, legitimately make such a comparison and conclude that there are divergences and therefrom draw an inference that the sampling must have been done improperly. To arrive at such a conclusion would amount to flying in the face of settled position of the law and the terms of SubSecs. (3) and (5) of S.13 of : 17 : the Act."
We hold that the above is the correct position of law. The divergences in the report and the certificate cannot be used to contend that the number of insects or the percentage of insect damaged seeds have increased during the interval between the analysis by the Public Analyst and the Director. Hence we cannot draw an inference that on the date of sampling, number of insects or percentage of insect damaged seeds would have been much less than what is shown in the report or the certificate."
In Jagdish Prasad's case (supra) the food item was not milk or milk product. The sample taken was of Amchoor Sabat made from peals of unripe mangoes Further the report of the Director CFL was obtained on the request of the prosecution and not by the accused , like in the present case, to challenge the report of public analyst.
: 18 : The report of Director CFL was obtained by the prosecution in that case as the extent of insect infestation was not mentioned in the report of the public analyst. Therefore, the Jagdish Prasad's case (supra) is distinguishable on facts and inapplicable to the present appeals. The observations of Kerala High Court in Mathukutty's case (supra) being in conflict with the consistent view of our Hon High Court in Lala Ram's case (supra), Jawaharlal's case (supra) and the recent Mahender Kumar's case (supra) does not help the respondent State in these appeals.
It is argued on behalf of the appellants that the milk present at the spot was not properly homogenised before taking the sample by the Food Inspector and therefore representative sample was not taken. This argument is strongly of little on behalf of the respondent State.
: 19 : In Dayal Chand v Harbhajan Singh 1999 (1) CC Cases HC 44 (P&H), relied on behalf of the appellant it was observed as follows:
"12. In this case there is only the evidence of the Food Inspector and that Dr. B.S Chaudhary PW that milk had been properly stirred and homogenized but they do not state about the manner in which milk was properly stirred and homogenized so purchased could be representative of the entire bulk milk in the drum. Omission on their part in this regard could have been ignored if the sample had not been deficient in milk solids not fat content only marginally. Higher percentage of milk fat content and less percentage of deficiency in milksolids not fat content only marginally. Higher percentage of milk fat content and less percentage of deficiency in milk solids not fat content should, in my opinion, be attributable to improper, sampling on the part of the Food Inspector."
In The State of Punjab v. Balwant Singh 1992 (II) Recent Criminal Report (R.C.R.) 57 (P & H), it was observed : 20 : as follows:
"9. Another equally important infirmity in the complainant's case is that there is no cogent and convicing evidence on record to show that the contents of the milk were stirred and made homogenous before taking of the sample. Of course, there is usual recital in the complaint and halfheartedly statement had been made by the Food Inspector Shri S. L. Lamba (PW1). His deposition has already been found incredible. Even if the allegations in the complaint and statement of the Food Inspector are taken on their face value, yet it has not been proved that stirring was done carefully to make the sample a representative one of the whole quantity of milk contained in the drum. 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 antclockwise 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. Of course, subsequent report dated 28101985 Ext. PH of the Central Food Laboratory is to supersede the earlier report : 21 : dated 2671985 (Ext PD) of the Public Analyst. But these two reports can certainly be used to show that difference between the two could be because of lack of proper stirring of milk, Standard of purity of cows's milk has been laid down in the Act under item No A. 11.01.11 (as applicable to Punjab), wherein minimum milk fat should be 4% and milk solids not fat should be 8.5%. In both the reports, no deficiency was found of the contents of milk fat as in Ext. PD presence of milk fat was found to be 5.9% and in report Ext. Pt milk fat was found to be 6.2%. It is clear that contents of fat got accumulated on the upper layer of the milk and that is why it was found much in excess of the minimum prescribed standard. Deficiency of milk solids not fat was found to be 8.1% and 7.8% in Exts. PD and PH, respectively. This is again evidence of the fact that the milk was not completely made homogenous further reading of the two reports, again indication nonhomogeneousness of the contents of milk in the drum. Undeniabbly there is statutory duty case upon the Food Inspector under the Act to take sample of the material after taking all steps to make it homogenous, and representative in nature so that guilt may be fastened upon the accused with certainly. Because of this infirmity in the persecution case, : 22 : the accused is entitled to the benefit of doubt."
In Ramesh G. Bendkar Food Inspector v. Sehumal S. Virvani 2008(II) Crimes 25 (Guj), it was observed as follows :
"9. ........... In the instant case, on close perusal of the Panchnama and the testimony of the Food Inspector original complainant go to show that sample of catechu (edible) collected on a polythene and it was poured into glass bottles. Now the cleaning, of glass bottles in due compliance with mandatory provisions of Rule 14 has not come out in any evidence on record. This Court in case of M.B. Risaldar v. Radlaeshyam Ramdhar Agarwal & Anr, has held that when the Food Inspector while leading evidence merely stated that sample food article was placed in clean bottles and did not lead any evidence as to who cleaned or washed the bottles or as to whether the battles were cleaned in his presence, the compliance with mandatory provisions of Rule 14 was not established . In another judgment in case of State of Gujarat v. Bhupendra M. Mehta (1992 (II) FAC 201, this Court had given benefit of doubt when it was not : 23 : cogently proved by prosecution that there was due compliance with mandatory provision of Rule 14 of the PFA Rules. In the instant case, as it is stated hereinabove, the Food Inspector in his deposition has merely stated that the used cleaned dry glass bottles but he has not stated that bottles were cleaned in his presence nor ha the prosecution examined the person, who actually cleaned the bottles and therefore, it can well be said that the prosecution could not establish due compliance with provisions of Rule 14 of the PFA Rules.
10. It also deserves to be noted that employment of polythene for collecting the sample food article in first instance itself also, was not warranted in as much as there is no evidence regarding cleanliness of the polythene, which was employed to collect the sample food a article in the first instance. The sample article was collected with the help of ladle. There is absolute silence in respect of the cleanliness of ladle, which was employed to collect the sample food article and there is also a doubt about compliance of Rule 14 of the Rules in using the ladle.
11. In view of this, there is scope for reasonable doubt in case of the prosecution so far as the compliance with mandatory provisions of Rule 14 : 24 : is concerned. The benefit of doubt, therefore, must go to the accused."
The question again arises as to how the sample of liquid food item or milk should be taken?In State (Delhi Admn.) v. Khem Raj 2007 I AD (Cr.) (DHC) 605, our Hon'ble High Court has held as follows:
"3. Whenever there is some liquid in some container, the law of gravity acts on the liquid and heavier particles of the liquid settle down, while the lighter particles of the liquid remain on the upper layers. Similarly, a still liquid normally does not have uniform temperature. The temperature is different in different layers of the liquid. The hotter layer is always on the top and the cooler particles keep going down. The hotter layer is always lighter in weight and the cooler is heavier. It is for this reason that while taking sample of any liquid food article, it is necessary that before taking sample the liquid is stirred thoroughly clockwise and anti clockwise, up and down so that, the entire contents of the liquid are uniformly spread throughout the liquid. If proper stirring is not done and sample is taken, the sample cannot be said to be the representative sample of the liquid.
4. In the present case, the sample of milk was : 25 : taken but there was no conclusive evidence that before taking sample the milk had been thoroughly stirred clockwise and anti clockwise, up and down with a plunger to bring the entire milk in homogenised state so that the representative sample of the milk could be taken. The learned Trial Court, on the basis of evidence doubted that the plunger was carried and used for stirring the milk and the sample was taken after making the milk thoroughly homogenised. The learned Sessions Judge, therefore, gave benefit of doubt to the respondent.
5. I find no infirmity in the order of the Additional Sessions Judge. The appeal is hereby dismissed."
In State of Himachal Pradesh v. Joginder Singh 2006(I) FAC 274 (HP), it was observed as follows:
"10. However with regard to the milk being made homogeneous the prosecution, in my opinion, has failed to prove its case. It is well settled law that before the Food Inspector takes a sample for the purpose of analysis he should ensure that the sample is a proper representative of the entire milk. For doing so, the milk must be stirred and made homogeneous. In the present case the Food Inspector in his examinationinchief did not even state a single word as to whether he had : 26 : made the milk homogeneous or not. An ill advised suggestion was made to this witness in crossexamination that he had not properly shaken the milk before taking the sample. In fact there was no need to make this suggestion. Obviously, the Food Inspector denied the suggestion. However, this also does not prove that the milk was made homogeneous. Merely shaking the milk will not make it homogeneous. As per the case of the prosecution itself there was 20 kg. milk being carried by the accused. Such a large quantity could not have been made homogeneous merely by shaking it. It had to be properly stirred with a rod or a ladle. There is no evidence to show that this was done in the present case. In fact PW2' Vinod Kumar, who was an eyewitness, has also not supported the prosecution case. According to him when he reached the spot the sample had already been taken by the Food Inspector. It is no doubt true that there is no rule of law that conviction under the Act cannot be based on the sole testimony of the Food Inspector. The Apex Court in Prem Ballab and another v. The State (Delhi Administration), 1976 (2) FAC 53 : 1977 SC 56, has clearly held as follows:
"There is no rule of law that conviction cannot be based on the sole testimony of a : 27 : Food Inspector. It is only out of a sense of caution that the Courts insist that the testimony of a Food Inspector should be corroborated by some independent witness. This is a necessary caution which has to be borne in mind because the Food Inspector may in a sense be regarded as an interested witness, but this caution is a rule of prudence and not a rule of law; if it were otherwise, it would be possible for any guilty person to escape punishment by resorting to the device of bribing panch witnesses."
However, in the present case even the statement of Food Inspector does not satisfy the conscience of this Court and it does not reveal that the sample was made homogeneous.
In Food Inspector, Municipal Corporation, Baroda v. Madanlal Ramlal Sharma and another 1982 (2) FAC 372 :(1983) 1 SCC 135, it was found that proper churning of the sample of the curd was not done. In this context, Their Lordships observed :
"...........We are conscious of the fact that in milk and milk preparations including curd, it is distinctly possible that the fat settles on the top and in order to find out whether the milk or its preparation such as curd has prescribed content, the sample must be : 28 : homogeneous and representative so that the analysis can furnish reliable proof of nature and content of the article of food under analysis. For this purpose churning is one of the methods of making the sample homogeneous and representative. But having said this, there is nothing in the Act or the rules which prescribes that churning must be done by some instrument, and that churning done by hand would not provide a homogeneous and representative sample. Common sense dictates that articles of food like milk and curd when churned with hand would properly mix up from top to bottom."
It is thus apparent that the Food Inspector is duty bound to ensure that the sample he takes is a representative and homogeneous sample of the entire milk preparation and such a sample can only be taken after proper churning or stirring of the entire contents. The evidence in the present case is totally lacking in this behalf. Even if the suggestion which the Food Inspector has denied is taken into consideration all that it shows is that he shook the vessel containing the milk. This would not amount to stirring or churning the milk. Therefore, the sample taken by the Food Inspector by no stretch of imagination can be said to be homogeneous or of : 29 : representative character. Therefore, the acquittal of the accused on this ground is justified." In State (Delhi Administration) v. Kasturi Lal 1986 All India Prevention of Food Adulteration Journal (AIPFAJ) 105 (Del), it was observed as follows:
"7. .........According to item A.11.01.11 of Appendix B to the prevention of food Adulteration Rules, 1955, standard of cow milk prescribed is that it should contain nonfatty solids to the extent of 8.5 per cent and fat to the extent of 3.5 per cent. NO doubt in this case nonfatty solids being 7.1 per cent fell short of the standard mentioned above, yet the aggregate of the fat and the nonfatty solids in this case comes to 13.1 per cent (in accordance with the report of Central Food Laboratory) as against aggregate of the standard of both nonfatty solids and fat of 12 per cent. The contention of the learned counsel for the respondent is that the milk was not properly stirred before taking sample and was thus not homogenised which meant that the sample which was taken was not proper repr3esentative of the milk being sold by the respondent. Learned counsel relied upon the following statement of R. P. Singh (P.W. 2) who : 30 : took the sample :
"The milk contained in the drum was properly homogenised before taking the sample at about 5 P.M. and then 660 ml. of cows milk was paisa against a vendor's receipt Ex. P.W. executed by the accused and signed by him at point A attested by me and the accompanying witness.
I agree with the learned counsel that although the witnesses have stated that the milk was properly homogenised before taking sample, yet has not been told as to what was the process used for that homogenising. P.W. 2 has not disclosed as to w at was the contrivance or device by which the whole milk was properly stirred so as to become homogeneous. Mere saying that the milk was homogenised is an opinion of the witness and not ' a statement of fact on the basis of which the court can form opinion.
Even otherwise there is an authority of this High Court (by Prithvi Raj, J.) in M. C. I. v. Jawahar Lal.[1980 (II) F.A.C. 145 (Del)]. In that case it was held that when percentage of fat was higher than standard and percentage of solids not fat : 31 : was slightly lower, and the aggregate of the two was more than the aggregate of the standard, the inevitable inference was that her the test was erroneous or that there was imbalance in the fodder fed to Z cow which resulted in high percentage of fat while giving lower percentage in solids not fat and that, therefore, the accused was rightly acquitted, in that case reliance was placed on a number of authorities."
In the present case the presence of sufficiently more than minimum required milk fat contents in the samples collected by Food Inspector and the difference in report of Public Analyst and the Certificate issued by Director CFL shows that the sample taken was not of representative character of the whole of the milk at the time of taking the samples. Since the upper layer of the milk is rich in contents and fat contents in the milk has more value the same being used for making butter, cream and ghee which are far more : 32 : precious than the milk, it cannot be said that the appellant has adulterated the milk to make it more rich in fat contents than the minimum required in the specification and in the process to make it marginally below the prescribed standard of minimum milk solids not fat contents, particularly when there is no evidence on record to show that the appellant was selling the milk at a higher than normal rate of the milk in those time. The inference may also arise that the sample was taken improperly from or near the upper layer of the whole milk which resulted in more of fat contents and less solid not fat contents in the sample. The fact that the samples should be of representative character of the food item has attained judicial recognition and in case the representative sample is not taken the accused is entitled to benefit of doubt , is also now a settled law. Therefore, the appellant/convict in this case is entitled to benefit of doubt : 33 : and acquittal.
RESULT OF APPEAL:
In view of discussion made above, the appeal is allowed. The judgement of conviction followed by order on sentence passed by the learned trial court is setaside. The appellant is acquitted of the charges under sections 7/16 of the PFA Act levelled by the learned trial court by view of Notice under section 251 caps it CrPC. The bail bonds furnished in the appeal are cancelled. The fine if already paid by the appellant in terms of the trial court judgement and order on sentence be refunded to him by the learned trial court. The trial court record be returned alongwith the copy of this judgment. The judgment be sent to the server (www.delhidistrictcourts.nic.in). The appeal filed be consigned to the record room.
Announced in the open court on : 34 : 1st day of , July 2008 ( S K Sarvaria ) Additional Sessions Judge Patiala House Court New Delhi