Punjab-Haryana High Court
State Of Haryana vs Rajinder on 5 August, 2009
Author: Kanwaljit Singh Ahluwalia
Bench: Kanwaljit Singh Ahluwalia
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
Criminal Appeal No. 557-SBA of 1999
Date of decision: 5th August, 2009
State of Haryana
... Appellant
Versus
Rajinder
... Respondent
CORAM: HON'BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA
Present: Mr. Anil Rathee, Additional Advocate General, Haryana
for the appellant.
KANWALJIT SINGH AHLUWALIA, J.
Rajinder son of Bal Ram was tried by the Court of Sub Divisional Judicial Magistrate, Palwal in a complaint instituted by Government Food Inspector under Section 7 read with section 16(1)(a)(i) of the Prevention of Food Adulteration Act (hereinafter referred to as, 'the Act'). He was acquitted by the Sub Divisional Judicial Magistrate, Palwal vide impugned judgment dated 10th October, 1998. Aggrieved against his acquittal, State of Haryana has preferred the instant appeal.
Rajinder accused, on 29th November, 1990 at about 9.30 a.m. at Hodal, was found in possession of two drums containing 30 kg of cow milk for sale. At that time, Government Food Inspector, R.D. Goel accompanied by Dr.H.K. Mishra, Medical Officer, Civil Hospital, Hodal, purchased 750 gm of cow milk for the purpose of sample. The printed proforma of the complaint states that 750 gm of cow milk was purchased and after mixing the whole contents properly, the same was made uniform for analysis. The sample was thereafter divided into three equal parts and bottled in three dry clean empty bottles as per the rules prescribed. One sample was sent to the Public Analyst, Haryana, Karnal, for analysis Criminal Appeal No. 557-SBA of 1999 2 through Railway parcel, while other two samples were deposited with Local Health Authority, Faridabad.
The Public Analyst, Karnal opined that the sample contained 3.8 per cent of the milk fat contents against the specified limit of 4 per cent. Thus, it was concluded by the Government Food Inspector that the accused respondent was in possession of adulterated milk. A complaint to this effect was instituted on 31st January, 1991. The accused respondent caused appearance before the Court on 11th March, 1991. He made a request on 19th August, 1991 for analysis of the second sample and the sample was sent to the Central Food Laboratory. As per the report, the sample was not in consonance with the standards prescribed and was found adulterated. The Court decided to try the case of the accused respondent as a warrant case. Thereafter, pre-charge evidence was concluded and accused respondent was charged under Section 7 read with section 16(1)(a)(i) of the Act. The accused pleaded not guilty and claimed trial. Prosecution examined R.D. Goel, Government Food Inspector as PW-1; Dr.H.K. Mishra, Medical Officer, who was present at the time when sample was taken, as PW-2; and Ashok Kumar, Clerk of Local Health Authority, Palwal as PW-3.
Argument was advanced by the defence counsel before the trial Court that the minimum percentage of milk fat should be 4 percent, while the milk solid not fat should be 8.5 percent. The defence counsel submitted before the trial Court that the total percentage of milk fat and milk solid not fat for the cow milk should be 13.5 percent. Relying upon the report of Public Analyst, Ex.PT, it was submitted that milk fat found was 3.8 percent, while milk solid not fat found was 9.4 percent. Taking the total to be 13.2 percent, it was urged that it was a case of marginal deficiency in milk fat to the extent of 0.02 percent.
Criminal Appeal No. 557-SBA of 1999 3
The Court relied upon 'Administrator of City Nagpur v. Laxman' 1996 (2) FAC 1997 to say that the accused is entitled to acquittal. The trial Court had concluded as under:
"12. In the present case also, the total percentage of milk solids and SNF found by public analyst Haryana in his report Ex.PD as well as Central Food Laboratory in its report Ex.PF is 13.2%, which is more than the minimum satisfying standard of 12.5%. In these circumstances, the authority of Hon'ble Supreme Court (cited supra) is fully applicable to the facts of the present case so as to give the benefit of doubt to the accused."
The reasoning, and the approach adopted by the trial Court, cannot be sustained. In 'M.V. Joshi v. M.U. Shimpi' 1961 AIR (SC) 1494, Hon'ble Apex Court held as under:
"7. At the outset it would be convenient to consider the ingredients of the offence alleged to have been committed by the appellant. Section 2(i) of the Act defines the word "adulterate" and it says that an article of food shall be deemed to be adulterated if it satisfies one or other of the conditions prescribed in sub-cls. (a) to (1). We are concerned in this appeal with sub- cl. (1) where under an article of food shall be deemed to be adulterated if the quality or purity of the article falls below the prescribed standard or its constituents are present in quantities which are in excess of the prescribed limits of variability. Section 2(xii) defines "prescribed" to mean "prescribed by rules made under this Act". In exercise of the powers conferred by sub-sec. (2) of S. 4 and sub-sec. (1) of S. 23 of the Act, the Central Government made rules prescribing, inter alia, the standards of quality of different articles of food. Rules 5 says that standards of quality of the various articles of food specified in Appendix B to the Rues are as defined in that appendix. Rule A. 11.05 of Appendix B to the Rules defines "butter" to mean "the product prepared exclusively from the milk or cream of cow or buffalo, or both, or without the addition of salt and annatto and shall contain not less than 80 per cent. of milk fat and not more than 16 per cent, of moisture" and no Criminal Appeal No. 557-SBA of 1999 4 preservative is permissible in butter. Therefore, if the quality or purity of butter falls below the standard prescribed by the said rule or its constituents are in excess of the prescribed limits of variability, it shall be deemed to be adulterated within the meaning of S. 2 of the Act. If the prescribed standard is not attained, the statute treats such butter, by fiction, as an adulterated food, though in fact it is not adulterated. To, put it in other words, by reason of the fiction, it is not permissible for an accused to prove that, though the standard prescribed is not attained, the article of food is in fact not adulterated. The non- conformity with the standard prescribed makes such butter an adulterated food. Section 7 of the Act prohibits the manufacture, sale, storage or distribution of such food. Section 16 provides a penalty for the contravention of the provisions of S. 7. The first question, therefore, that falls for consideration is whether the butter seized from the appellant was butter as defined by rule A. 11.05 of Appendix B to the Rules.
Having observed so, Their Lordships of Hon'ble Apex Court noticed the contention of the counsel for the appellant as under:
11. Learned counsel for the appellant contends that the rule being a part of a penal statute, it should be construed in favour of the accused. When it is said that all penal statutes are to be construed strictly it only means that the court must see that the thing charged is an offence within the plain meaning of the words used and must not strain the words. To put it in other words, the rule of strict construction requires that the language of a statute should be so construed that no case shall be held to fall within it which does not come within the reasonable interpretation of the statute. It has also been held that in construing a penal statute it is a cardinal principle that in case of doubt, the construction favourable to the subject should be preferred. But these rules do not in any way affect the fundamental principles of interpretation, namely, that the primary test is the language employed in the Act and when the words are clear and plain the court is bound to accept the expressed intention of the legislature."Criminal Appeal No. 557-SBA of 1999 5
In Jagdish Prasad v. State of West Bengal, AIR 1972 SC 2044 Supreme Court observed :
".....standards having been fixed as aforesaid any person who deals in articles of food which do not conform to them contravenes the provisions of the Act and is liable to punishment thereunder."
A full bench of this Court, in 'State of Punjab v. Teja Singh' 1976 CLJ 1648, held that it is not permissible to add the percentage of the various constituents of milk disclosed by the Public Analyst and thereafter to deduce a conclusion therefrom about the overall deficiency is not allowed and there can be no deviation from the standard prescribed. Courts also cannot presume a slight or marginal error in the conclusion drawn by the Public Analyst. Argument that there is marginal deficiency, therefore accused is entitled to acquittal, is not available.
In view of the settled legal position, the view taken by trial Court in recording the acquittal, cannot be sustained. However, the trial Court had noticed only this argument to acquit the accused respondent and ignored the other arguments, which could be urged by the accused to earn acquittal. In the complaint, which was in a printed proforma, the Food Inspector had stated that 750 gm of cow milk was purchased after mixing the whole contents properly and sample was made uniform for analysis. In the Court, Food Inspector, R.D. Goel appeared as PW-1. In the examination in-chief, he stated that the drum of the milk was shaken (ek drum gaye doodh achhi trah se hila jula kar 750 gm bator namuna hasil kiya). In cross-examination also, he repeated what was stated in the examination in-chief. Dr.H.K. Mishra also stated similarly that the milk was shaken. The requirement of law is that the milk should be stirred and the sample should be made homogeneous. A Division Bench of this Court, in Criminal Appeal No. 557-SBA of 1999 6 'State of Haryana v. Rameshwar' 1987 (1) RCR (Criminal) 216, stated as under:
"5. The law is well settled that before Milk sample is taken, which is a liquid, is should be stirred and made homogenous. The reasons for this is that the milk which is liquid, contains various constituents in different forms. Some are very thoroughly mixed up in it but sum 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 accummulates there. If a sample is taken without mixing the milk thoroughly or, in other words, making it homogenous then the fat being at the top, its contents will not be in the same quantity in the lower portions 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 homogenous so that the sample remains representative."
This calls for this Court to consider as to how the milk should be stirred to make the sample homogeneous. In various judicial pronouncements, the Courts have granted due sanctity to the procedure of general sampling mentioned in "A Laboratory Mannual of Milk Inspection by, A.C. Aggarwal and R.N. Sharma". Reference can be made to the same by relying upon a judgment of this Court rendered in 'Lekh Rai v. U.T. Chandigarh' 1990(1) R.C.R.(Criminal) 479. Para 5 of the judgment reads as under:
"5. There is no plausible explanation on the file as to how fat contents will be more than the prescribed Standard for tonned milk, while at the same time milk-solids not fat would be lesser than the prescribed standard, because a milk vendor is not expected to add fats in the milk contents, being, costlier than the milk itself. If a milk vendor adds water to milk, it will Criminal Appeal No. 557-SBA of 1999 7 result in reducing fat-contents also, provided the sample is taken after proper stirring. This situation is explainable on reasonable hypothesis that milk-contents of the Patila, containing 10 kg of milk, were not property stirred before taking the sample, as in that case only the fat contents being lighter that the milk solids would be more than the prescribed standard if the sample of milk is taken from the upper layers of milk in the Patila without properly stirring it. The assertion of the Govt. Food Inspector that he had stitted the contents of Patila with a milk-measure is not sufficient to conclude that the milk was properly stirred unless the milk is stirred with a deep probe or by transferring the milk in the Patila to another vessel and stirring it in the said process. On the other hand, the stirring of the milk with a milk measure would result in blowing it and separating the fat contents from the milk solids. It appears that the lower appellate Court had wrongly appreciated this controversy by holding that it was for the accused petitioner to stir the milk properly before giving the sample. Thus, the appellate Court instead of giving benefit of doubt to the petitioner has given it to the prosecution agency. The aforesaid view is supported by a decision of Division Bench of the Rajasthan High Court in State of Rajasthan v. Kachab, 1979 (11) FAC 359. In that case also the sample was found to contain more. fats than the proscribed, while it was deficient in milk-solids not fat. Under these circumstances, it was held that the sample of milk was not taken after properly stirring it. Thus it cannot be said that the milk which was being sold by the petitioner was found deficient in milk-solids qua the prescribed standard. In that case, reference was made to "A Laboratory Mannual of Milk Inspection by, A.C. Aggarwal and R.N. Sharma, Fourth Edition, 1961, it page 115, as under:
"General Sampling : The careful and accurate sampling of milk is of utmost importance in all analysis of milk. Probably more errors are ensued through careless preparation of samples than in the actual performance of the tests. The most important thing is to bear in mind in this connection is that the whole body of milk from which a sample is to be Criminal Appeal No. 557-SBA of 1999 8 drawn should be uniform throughout in its composition, and any sample of milk drawn out or it for analysis must necessarily be a true representative of the whole body of milk. The factors disturbing the uniformity of composition of milk are mainly the separation and churning of fat. Through mixing of milk must first be ensured either by stirring with a long handled dipper if the container is big, or by pouring from one vessel to another or by shaking gently."
To conclude, the ground of acquittal taken by the trial Court that there was a marginal deficiency in milk fat, though milk solids were more than the standard prescribed, cannot be accepted as valid ground for acquittal. However, as mentioned above, the milk was not stirred in the manner prescribed, acknowledged and recognized in various judicial pronouncements, therefore, on the ground that there was no proper stirring of the milk and the sample was not representative of the whole milk and was not homogeneous, it is held that the accused respondent is entitled to acquittal and the acquittal recorded by the trial Court is not required to be disturbed.
Hence, the present appeal is dismissed.
[KANWALJIT SINGH AHLUWALIA] JUDGE August 05, 2009 rps