Himachal Pradesh High Court
______________________________________________________________________ vs State Of H.P. And Another on 29 September, 2016
Author: Ajay Mohan Goel
Bench: Ajay Mohan Goel
1
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Cr. Revision No.: 05 of 2007
Reserved on: 22.09.2016
.
Date of Decision: 29.09.2016
______________________________________________________________________
Abdul Gani .....Petitioner.
Vs.
State of H.P. and another .....Respondents.
of
Coram:
The Hon'ble Mr. Justice Ajay Mohan Goel, Judge
Whether approved for reporting?1 Yes.
For the petitioner:
rt Mr. Umesh Kanwar, Advocate.
For the respondent: M/s. Vikram Thakur, Parul Negi and
Puneet Rajta, Deputy Advocate Generals.
Ajay Mohan Goel, Judge:
By way of this revision petition, the petitioner has challenged the judgment passed by the Court of learned Sessions Judge, Chamba in Criminal Appeal No. 1 of 2006 dated 04.12.2006 vide which, learned appellate Court while dismissing the appeal filed by the present petitioner upheld the judgment of conviction passed against the present petitioner by the Court of learned Chief Judicial Magistrate, Chamba in Criminal Case No. 302-III of 2004 whereby the petitioner was convicted for commission of offence punishable under Section 16(1)(a)(i) of the Whether the reporters of the local papers may be allowed to see the Judgment?
::: Downloaded on - 15/04/2017 21:19:31 :::HCHP 2Prevention of Food Adulteration Act, 1954 and was sentenced to undergo simple imprisonment for six months and to pay a fine of `1000/-.
2. The case of the prosecution, in brief, was that a complaint .
was instituted by Food Inspector Shri M.D. Sharma against the present petitioner to the effect that on 01.03.2004, the complainant was on inspection of milk as well as milk vendors when he found accused possessing about 60 Kg. of milk in galvanized tins which was kept for the sale and consumption of general public. The complainant disclosed his of identity to the accused for the purpose of inspection of galvanized tins and one witness was also called by him as he intended to lift a sample of rt the said milk. Accordingly, he gave a notice on Form No. VI in the presence of independent witness Pushp Nath to the accused. The complainant was duly notified as Government Food Inspector for District Chamba and was authorized to this effect vide Notification No. HFW(B) A-
2-1/82 part dated 23.09.2009. As per the prosecution, before lifting the sample, the complainant stirred the entire milk clockwise and thereafter anti-clockwise. Thus, after making the milk homogeneous, he purchased 3.5 mls. milk from the accused on payment of `10/- against receipt. The sample so purchased by the complainant was divided into three parts and poured into three clean dry bottles mixing 40 drops of formalin and thereafter each bottle of sample was labelled with a labelling slip and wrapped externally by a thick wrapping paper followed by thread. After completion of formalities, thumb impression of the accused was taken on each sample and one part of the sample was sent to Public Analyst, ::: Downloaded on - 15/04/2017 21:19:31 :::HCHP 3 Kandaghat in a sealed wooden box through registered parcel and a separate copy of Form No. VII was sent to Public Analyst by registered letter. The remaining two parts of the sample and two copies of Form No. .
VII were handed over to LHA, Chamba for further action. Further as per the prosecution, the sample of milk which was sent was found to be damaged as communicated vide letter No. CTL(F) 4-1(2)/2004-1690, dated 11.03.2004. Thereafter, second sample was sent through Jaram Singh and this sample was handed over against receipt at CTL, of Kandaghat on 22.03.2004. The report of Public Analyst disclosed the sample of milk to be "adulterated" as it was found containing 8.24% of rt "milk solids-not-fat" against minimum of 9%. The report of the Public Analyst was placed before Chief Medical Officer, Chamba alongwith relevant documents, who after going through the records, accorded his written consent vide letter No. M-PW (Food)/04-100-101, dated 30.06.2004 for launching prosecution against the accused. Accused was accordingly summoned and after consideration of allegations as were contained in the complaint, as there existed a prima facie case, notice of accusation under Section 16(1)(a)(i) of the Food Adulteration Act, 1954 was put to the accused to which he pleaded not guilty and claimed to be tried.
3. On the basis of material produced on record by the prosecution, learned trial Court came to the conclusion that against the minimum prescribed standard of 9% as shown in the report of Public Analyst Ex. PW1/M, "milk solids-not-fat" found in the sample of the ::: Downloaded on - 15/04/2017 21:19:31 :::HCHP 4 complainant was 8.24% and it was held by the learned trial Court that though the difference may be insignificant, but the same cannot be ignored which was below the prescribed standard. On these basis, it was .
concluded by learned trial Court that the sample which was taken by the complainant from the accused was "adulterated" within the meaning of Section 2 (i)(m) of the Act. Accordingly, learned trial Court convicted the accused for commission of offence punishable under Section 16(1)(a)(i) of the Prevention of Food Adulteration Act, 1954 and sentenced him to of undergo six months simple imprisonment and also to pay a fine of `1000/- and in default of payment of fine, the accused was ordered to rt undergo further conviction for a period of one month.
4. Feeling aggrieved by the said judgment passed by learned trial Court, the petitioner filed an appeal which was dismissed by the learned appellate Court vide judgment dated 04.12.2006. Learned appellate Court while upholding the judgment of conviction passed by learned trial Court held that it was fully proved on record that the accused was found selling adulterated milk meant for sale to the general public, i.e. for human consumption. Learned appellate Court further held that Food Inspector while collecting the sample from the accused had made it homogeneous after stirring it in clockwise and anti clockwise and only thereafter the sample was taken from the same. It was further held by learned appellate Court that Section 2(i)(m) of the Prevention of Food Adulteration Act, 1954 provided that food is adulterated if the quality or purity of the article falls below the prescribed standard or its constituents ::: Downloaded on - 15/04/2017 21:19:31 :::HCHP 5 are present in quantities not within the prescribed limits of variability, but which does not render it injurious to health. On these basis, it was held by the learned appellate Court that the sample collected from the .
accused was adulterated as was evident from the report of Public Analyst Ex. PW1/M. On these points, learned appellate Court upheld the judgment of conviction passed by learned trial Court and dismissed the appeal so filed by the accused.
5. Mr. Umesh Kanwar, learned counsel appearing for the of petitioner has argued that both the judgments passed by learned Courts below were perverse and not sustainable in the eyes of law. Mr. Kanwar rt argued that both the learned Courts below failed to appreciate that before collecting the sample of milk from the accused, the milk was not made homogeneous and the sample which was taken from the same was also thus not homogeneous. According to Mr. Kanwar, it was not proved by the prosecution that the milk was properly stirred and made homogeneous before the same was taken from the accused and, therefore, it could not be said that the sample taken by the Food Inspector was representative. He submitted that this very important aspect of the matter had not been appreciated in its correct perspective by both the learned Courts below and, therefore, judgments passed by both the Courts below were liable to be set aside on this count alone. Mr. Kanwar further argued that even otherwise the judgment of conviction passed against the accused was not sustainable in law because both the learned Courts below failed to appreciate that there was a marginal ::: Downloaded on - 15/04/2017 21:19:31 :::HCHP 6 deficiency of .76% in "milk solids-not-fat" and the same could be for number of reasons including the reason that Food Inspector might not have stirred the milk properly so as to make it homogeneous and on this .
ground, the accused could not have been convicted. Accordingly, he prayed that as there was perversity in the judgments passed by both the learned Courts below, the same be set aside in exercise of its revisional jurisdiction by this Court and the petitioner be acquitted for commission of offence for which he has been convicted by learned trial Court.
of
6. Mr. Vikram Thakur, learned Deputy Advocate General, on the other hand argued that there was neither any perversity nor any infirmity rt with the judgments passed by both the learned Courts below. It was contended on behalf of the State that it stood proved from the report of Public Analyst that "milk solids-not-fat" found in the sample taken from the accused was 8.24% as against the minimum of 9%, therefore, it could not be said that the finding of conviction returned by both the learned Courts below was either perverse or not borne out from the records of the case. On these basis, it was argued on behalf of the State that judgment of conviction passed by learned trial Court and affirmed by learned appellate Court did not warrant any interference.
7. I have heard the learned counsel for the parties and also gone through the records of the case as well as judgments passed by both the Courts below.
8. Before proceeding further in the matter, it is relevant to take note of the scope of revisional jurisdiction of this Court. It is settled law ::: Downloaded on - 15/04/2017 21:19:32 :::HCHP 7 that the scope of revisional jurisdiction of this Court does not extend to re-appreciation of evidence. It has been held by the Hon'ble Supreme Court that the High Court in exercise of its revisional power can interfere .
only if the findings of the Court whose decision is sought to be revised is shown to be perverse or untenable in law or is grossly erroneous or glaringly unreasonable or where the decision is based on no material or where the material facts are wholly ignored or where judicial discretion is exercised arbitrarily or capriciously. It has been held by Hon'ble Supreme of Court in Sanjaysinh Ramrao Chavan Versus Dattatray Gulabrao Phalke and Others, (2015) 3 Supreme Court Cases 123, that unmerited rt and undeserved prosecution is an infringement of guarantee under Article 21 of the Constitution of India. In this case, Hon'ble Supreme Court has further held that the purpose of revision jurisdiction is to preserve the power in the Court to do justice in cases of criminal jurisprudence.
9. In the backdrop of the scope of revisional jurisdiction of this Court, hereinafter this Court shall deal with the respective contentions of the parties.
10. The factum of "milk solids-not-fat" having been found to be 8.24% in the sample of milk which was taken from the accused by the Food Inspector is a matter of record. The factum of the said percentage of 8.24 being below 9% minimum fixed in this regard is also a matter of record. This is evident from Ex. PW1/M, which is the report of Public Analyst. This factual position is not disputed even by the petitioner. The ::: Downloaded on - 15/04/2017 21:19:32 :::HCHP 8 argument of the petitioner is that deficiency of .76% as has been found in the report by the Public Analyst could not have been made the basis of conviction of the accused.
.
11. Before touching this aspect of the matter, I will first deal with the contention of learned counsel for the petitioner that the sample of milk which was taken from the accused by the Food Inspector was not a representative one as there was no proper stirring of milk. Admittedly, there are neither any provisions under the Food Adulteration Act nor of under the Rules framed thereunder as to how sample of milk is to be taken. Therefore, it is required to be found as to whether or not the rt procedure which was adopted by the Food Inspector in the present case when he took the sample could have brought the milk to its homogeneity or not.
12. Sh. M.D. Sharma, Food Inspector entered the witness box as PW-1 and he stated in his testimony that he took the samples from a can in which there was 10 kg. of milk. He further stated that before he took the sample, he stirred the entire milk from right to left direction and also shook it upwards and downwards. It is settled law that in order to ensure that sample is a representative one, proper stirring of milk is required and if the same is not churned and stirred and thereafter the sample is taken, the same cannot be called a representative sample.
13. This Court relying upon the judgment of the Hon'ble Supreme Court in Food Inspector, Municipal Corporation, Baroda Vs. Madan Lal Ram Lal Sharma and another (1983) 1 SCC 135 has held in ::: Downloaded on - 15/04/2017 21:19:32 :::HCHP 9 State of Himachal Pradesh Vs. Prem Chand, 1990(1) PFA 68 that before a sample of milk can be treated to be a representative sample, it should be established on record that quantity of the milk was properly churned .
to make it homogeneous.
14. In State of Himachal Pradesh Vs. Joginder Singh, Latest HLJ 2006 (HP) 712, this Court has held that merely by shaking 20 kg.
milk in its container will not make it homogeneous and the milk is to be properly stirred with a rod or a ladle.
of
15. Coming back to the facts of the present case, a perusal of the testimony of the Food Inspector demonstrates that it is nowhere rt mentioned therein that as to what method was adopted by him to ensure that the entire milk in the milk container could be churned/stirred and mixed up from top to bottom. Use of rod or ladle for the same has not been established. The Food Inspector was duty bound to ensure that the sample which he took was representative and homogeneous sample of the entire milk. In my considered view, in the present case, statement of Food Inspector failed to prove that the milk was made homogeneous by him.
Therefore, on the basis of evidence on record, prosecution had failed to prove that the Food Inspector in fact had properly churned and stirred the milk and had made it homogeneous and that the sample which was collected by him was in fact a representative sample. This very important aspect of the matter has been ignored by both the Courts below.
::: Downloaded on - 15/04/2017 21:19:32 :::HCHP 1016. Now coming to the second aspect of the matter, the Hon'ble Supreme Court in P.S. Sharma Versus Madan Lal Kasturichandanji and another (2009) 16 Supreme Court Cases 276 has held:
.
"2. On the basis that the samples of the milk taken from the respondents contained 6.6% of milk fat and 7.5% of milk solids non-fat, the proceedings were initiated. As per the report of the Public Analyst, the sample contained 3.01% milk fat and 11.02 milk solids non-fat. The difference of ultimately came down to only one percent from the standard quantity. On this aspect, the contention put forth on behalf of the respondents is that the rt difference in percentage is on account of the circumstance that the distribution of fat in the milk in separate sample bottles will not be even as a result of violent churning of the milk. When marginal difference like one percent was noticed by the Public Analyst or by the Central Food Laboratory, the courts have taken the view that it is possible that there may be some error creeping in the conclusion reached thereto. In somewhat similar circumstances, this Court has upheld the orders of the courts below acquitting the accused in Aministrator of the City of Nagpur Vs. Laxman. The view taken by the High Court of Gujarat in State Vs. Bhagubhai Ramjibhai followed by the High Court is also on the same lines."::: Downloaded on - 15/04/2017 21:19:32 :::HCHP 11
17. The Hon'ble Supreme Court in Aministrator of the City of Nagpur Vs. Laxman and another 1995 Supp (1) Supreme Court Cases 247 has held:
.
"2. This appeal against acquittal arises under Prevention of Food Adulteration Act. 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 of the fat percentage is 6% as against 3.5% which is more than the standard prescribed for cow milk. The only shortfall was that S. N. F. was 7.3% where it rt ought to have been 8.5%. Further, it noted that the total solids are 13.37 which is again more than the satisfying standard of cow milk. Under these circumstances, we cannot say that courts below have erred in acquitting them giving the benefit of doubt to the respondents. The appeal is, therefore, dismissed."
18. The percentage of milk fat and non-fatty milk solids depends on the proper feeding and the health of the animal. It cannot be disputed that there is a problem of non-availability of nourishing and sufficient quantity of food for the cattle, both green and otherwise. The quantity of food given to an animal affects to certain extent, the quantity and quality of milk produced by said animal. Thus, it is not possible to take non fatty solids from milk without reducing or affecting the fat contents.
::: Downloaded on - 15/04/2017 21:19:32 :::HCHP 1219. In my considered view, on these basis, it cannot be said that the accused intentionally effected any adulteration in the milk. When milk is found deficient in milk solids not fat, it cannot be said that milk is .
not pure but only inference which can be drawn is that the buffalo/cow was not properly fed.
20. Learned counsel for the petitioner has also drawn the attention of this Court towards the judgment passed by the High Court of Punjab and Haryana in Balkar Singh Vs. State of Haryana, Criminal of Revision No. 37 of 2006 dated 21.04.2011, in which Hon'ble High Court of Punjab and Haryana has held:
"4.
rt The solitary submission counsel for the petitioner is that there was a of learned marginal deficiency of 0.46 percent in the milk solids not fat and for the same there could be number of reasons, viz. that (i) Food Inspector might not have stirred properly so as to make it homogeneous (ii) same taken was not found deficient in milk-fat; and
(iii) when milk-fat was 5.3 percent and fulfilled the prescribed standard, therefore, the marginal deficiency of 0.46 percent in the milk solids not fat could be due to poor feed of the cow.
5. To support the submissions, reliance has been placed upon P.S. Sharma Vs. Madanlal Kasturichandji and another 2002(2) FAC 224, Bhal Singh Vs. State of Haryana 2003 (1) FAC 207 and Administrator of City of Nagpur Vs. Laxman and another 1996(2) FAC 297.
6. In P.S. Sharma's case (supra), there was a marginal difference of only 1 percent from the ::: Downloaded on - 15/04/2017 21:19:32 :::HCHP 13 minimum prescribed standard. It was observed by the Hon'ble Supreme Court that when marginal difference of 1 percent was noticed by the Public Analyst or Central Food Laboratory, it is possible .
that there may be some error creeping in the conclusion reached thereto. Hon'ble Supreme Court also relied upon its earlier decision in Laxman's case (supra). In that case, the only shortfall was that milk solids not-fat was 7.3 percent, whereas it ought to have been 8.5 percent and the accused-respondent of (therein) was acquired by the Courts below and the Hon'ble Supreme Court dismissed the appeal filed by Administrator of the City of Nagpur.
7. rt In Darshan Singh Vs. State of Haryana 1995(1) FAC 79, the milk was found deficient only by 0.4 percent in milk solids not-fat of the minimum prescribed standard. This Court set-aside the conviction and sentence imposed by the Courts below. To the same effect is the decision of this Court in Sawaran Singh Vs. State of Haryana 1997(3) RCR (Criminal) 546.
8. As observed above, in this case, per the Central Laboratory's report (Exhibit PF), milk solids not-fat was found deficient only to the extent of 0.46 percent. So, possibility cannot be ruled out of an error creeping in particularly because the reports of the two laboratories did not tally.
9. Above being the factual and legal position, this Court is of the opinion that both the Courts below fell in error in convicting and sentencing the petitioner. Thus, revision petition is accepted and the judgments of conviction and order of sentence ::: Downloaded on - 15/04/2017 21:19:32 :::HCHP 14 passed by the Courts below are set aside. The petitioner is acquitted of the charges framed against him."
.
21. In my considered view, it is apparent from the material which has been produced on record by the prosecution that it had not been established on record that the sample taken by Food Inspector of milk from the accused was a representative one as the prosecution failed to prove that the entire milk was properly churned/stirred and mixed up of from top to bottom by the Food Inspector before he took the sample from the same. Similarly, both the learned Courts below erred in convicting the rt accused on the ground that the sample of milk taken from the accused by the Food Inspector was adulterated as "milk solids-not-fat" was present to the extent of 8.24% against minimum prescribed 9% without appreciating that whereas the fats were found almost in conformity with the prescribed standard and, therefore, looking to this marginal difference in solids not fat the possibility of uncommon distribution of fat in the sample so taken could not be ruled out. Keeping in view the fact that the difference was not more than 1%, therefore, the principles laid down by the Hon'ble Supreme Curt in P.S. Sharma Vs. Madanlal Kasturichandiji and another, (2009) 16 Supreme Court Cases 276 applied and the accused was entitled for acquittal.
22. Therefore, in view of the discussion held above, in my considered view, both the learned Courts below erred in convicting and ::: Downloaded on - 15/04/2017 21:19:32 :::HCHP 15 sentencing the petitioner for commission of offence punishable under 16(1)(a)(i) of the Prevention of Food Adulteration Act, 1954.
23. Present revision petition is therefore allowed and the .
judgment of conviction and order of sentence passed by learned trial Court in Criminal Case No. 302-III of 2004 dated 02.09.2005 and upheld by learned appellate Court in Criminal Appeal No. 1 of 2006 dated 04.12.2006 are set aside and the petitioner is accordingly acquitted of the charges framed against him.
of (Ajay Mohan Goel) Judge September 29, 2016 rt (bhupender) ::: Downloaded on - 15/04/2017 21:19:32 :::HCHP