Rajasthan High Court - Jodhpur
Chenaram vs State on 12 July, 2017
Author: Chief Justice
Bench: Chief Justice
1 HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Criminal Revision No.533/1996 Chenaram s/o Ratanlal Aajna resident of Bagadri Tehsil Choti Sadri Dist Chittorgarh.
----Petitioner Versus The State of Rajasthan.
----Respondent _____________________________________________________ For Petitioner(s) : Mr.B.S.Rathore For Respondent(s) : Mr.J.P.Bhardwaj, Public Prosecutor. _____________________________________________________ HON'BLE THE CHIEF JUSTICE Judgment 12/07/2017
1. Convicted vide judgment dated 8.2.1994 by the learned Magistrate for having committed an offence punishable under Section 7/16 of the Prevention of Food Adulteration Act, 1954, vide an order of even date the petitioner has been sentenced to undergo SI for six months and to pay fine in sum of ₹1000/-; in default of payment of fine to undergo SI for one month.
2. Appeal filed by the petitioner against the conviction and sentence imposed has been dismissed by the learned Court of Session vide impugned order dated 7.12.1996.
3. Counsel for the parties have been heard and the record has been perused.
4. The version of the prosecution is that the Food Inspector Brij Mohan (PW1), stopped the petitioner on the road on 11.9.1987 at 2 6.45 AM and purchased 750 ml. of milk. At that time Ganpat Lal (PW2), an employee at a Public Health Centre was with him. The sample purchased was put in three separate bottles and sent to the Public Analyst at the Public Health Laboratory. Report Ex.P/7 opines that the sample was adulterated inasmuch as milk fat content was 6%. Milk solids not fat content was 6.5%.
5. The stand of the petitioner was that he was not engaged in the business of sale of milk. On the relevant date, at the asking of Manohar Lal (DW1) he had picked up the milk from one Ramnarayan and when he was proceeding to the house of Manohar Lal the Food Inspector lifted the milk sample from him.
6. Pertaining to the milk sample I find from the record of the learned trial court that the prosecution has filed a report from the Central Food Laboratory as per which the milk fat content detected was 5.6% and milk solids not fat 7.3%. The two impugned judgments have not taken note of the report submitted by the Central Food Laboratory.
7. At the forefront of the argument of the learned counsel for the petitioner was that the courts below have ignored admission made by Ganpat Lal during cross examination that he was on duty at the Public Health Centre from 8.00 PM of the previous night till 8.00 AM on 11.9.1987.
8. Indeed if this be so, Ganpat Lal could not have witnessed the lifting of the sample by the Food Inspector at 6.45 AM and thus the report prepared at the spot by the Food Inspector gets tainted.
9. The Food Inspector admitted during cross examination that at 3 the time when he was taking the milk sample people had gathered at the spot. The prosecution has not attempted to associate any one in the lifting of the sample as a witness. Brij Mohan has attempted to get over this handicap by stating that no person at the spot was willing to become a witness. Concededly the Panchnama Ex.P/3 does not mention this fact.
10. From the fact that as per admission made by Ganpat Lal he was on duty at the Public Health Centre at 6.45 AM and the fact that the Panchnama does not record that no public person was willing to act as a witness, casts a doubt in the version of the prosecution regarding the case as set up by the prosecution. However, it has to be kept in mind that the petitioner admitted that as a matter of fact 750 ml. milk sample was picked up from him.
11. I have noted hereinabove the variation in the report of the Public Health Laboratory and the Central Food Laboratory concerning milk fat and milk solids not fat detected in the two samples sent to the two Laboratories. Unfortunately the prosecution has not brought out whether the milk was that of buffalo or a cow. As per entry A.11.01.11 in Appendix-B to the Prevention of Food Adulteration Rules, 1955, in the State of Rajasthan, for buffalo milk the prescribed minimum content of fat has to be 5% and milk solids not fat 9%. For cows milk the respective content has to be 3.5% and 8.5%.
12. In both samples milk fat content would be above the minimum prescribed limit if the milk was cow milk. It would also be above the prescribed limit if the milk was buffalo milk. The problem would relate to milk solids not fat.
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13. This raises the question as to how was the sample lifted. There is a discrepancy in the statement of Brij Mohan and Ganpat Lal. The former states that sample was initially put in a utensil of capacity of one litre and thereafter 750 ml. therefrom was equally put in three dried bottles. Ganpat Lal has stated that the samples were directly put in the bottles.
14. It assumes importance to note that no measuring instruments being carried by the petitioner have been noted or recorded in the Panchnama Ex.P/3.
15. As noted above Manohar Lal (DW1) has deposed that there was a marriage in his house and at his asking the petitioner was bringing milk from one Ramnarayan. Brij Mohan has admitted during cross-examination that he did not make any enquiry about milk being sold by the petitioner.
16. There is thus no reason to disbelieve the testimony of Manohar Lal which corroborates the version of the petitioner.
17. Unfortunately these aspects have been over-looked by the courts below.
18. The revision petition is thus allowed. Impugned judgments of both the courts below are set aside. The petitioner is acquitted of the charge under Section 7/16 of the Prevention of Food Adulteration Act. The bail bond and surety bonds furnished by the petitioner when he was admitted to bail are discharged.
(PRADEEP NANDRAJOG)CJ.
Parmar