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Showing contexts for: sample milk in Da vs . Mohd. Ahmad Page 1 Of 41 on 2 May, 2014Matching Fragments
If he sleeps himself over this right and does not make a prayer that the sample given to him should be sent to the Director, Central Food Laboratory, then he cannot make any grievance....... ."
Delay
49. It was also one of the arguments of the Ld. defence counsel that there was an inordinate delay in filing the complaint as though the sample was collected/lifted on 13.07.2005 the complaint was filed only on 06.10.2005 i.e. after a gap of almost 3 months. It was argued that the shelf life of the milk is only 1 month and even if the accused's application u/s 13(2) would have been allowed still due to lapse of almost 3 months the sample would have become deteriorated/decomposed by that time. It was argued that on account of the lapses/laches on the part of the prosecution the accused's right u/s 13 (2) was prejudiced. Reliance was placed upon State of Ramesh Chand 2010 (II) JCC 1250, Chanan Lal Vs. State 1972 FAC 282 , State Vs. Satish Kumar 2012 (4) JCC 2688 and State Vs. Vinod Kumar Gupta 2010 (II) JCC 957. However I do not agree with the contentions of Ld. Defence counsel. Firstly as discussed above the denial of right u/s 13 (2) was on account of the conduct of the accused and hence he cannot make any grievances. Secondly, the prosecution witnesses categorically stated that at the time of sampling 40 drops of formalin were added in the sample bottles as a preservative. Once formalin was added in the sample bottles and the bottles shaken properly for proper dispersion of formalin in the sample bottles/milk, the defence plea that the sample must have deteriorated looses merit. The Defence has not been able to prove anything to the contrary i.e. did not lead any evidence to show/prove that the sample would have deteriorated due to lapse of 3 months despite addition of formalin. Reliance may be placed upon the law laid down in Ajit Prasad Ram Kishan Vs. State of Maharashtra 19481997 FAC (SC) 294 .
62. In Municipal Committee Amritsar Vs. Jagat Ram 1974 FAC 455 the sample of milk was sent for analysis to Director, CFL after more than 1 year and and 5 months. The sample was opined by the Director to be fit for analysis. Upholding the conviction of accused the court observed:
"The accused had utilized his right under section 13(2) of the Act of sending the sample to the Director, Central Food Laboratory, whose certificate as mentioned above was against him. The sample did not deteriorate although it was sent about one year and five months after the taking of the sample. Therefore, no prejudice was caused to the accused and, therefore, there was no justification for the Additional Sessions Judge to set aside his conviction on the ground of delay".
66. However I do not agree with the contentions of Ld. Defence counsel. Firstly, it is specifically mentioned in Appendix B of The Prevention of Food Adulteration Rules, 1955 i.e. A.11.01.11 that "the standards of different classes and designations of milk shall be as given in the table below. Milk shall conform to both the parameters for milk fat and milk solids not fat, independently, as prescribed in columns (4) and (5) of the said table". Hence it is not open to raise any contention that the sample of milk conformed to the standards as a whole (total solids).
85. I have perused the report of PA dated 29.07.2005. As per the report of the PA, the PA used the Gerber method for the purpose of analyzing the sample of toned milk so collected by the Food Inspector. It is reflected in the report of PA that he used Gerber method for the purpose of calculating the percentage of milk fat in the sample of toned milk so analyzed and thereafter By difference calculated the contents of the milk solids not fat in the sample of toned milk. The said method is not a sure/accurate test for the purpose of analysis of milk so as to give a finding/report regarding the milk fat and milk solids not fat in sample of milk as held by the Hon. Apex Court in Corporation of City of Nagpur Vs. Neetam Manikraro Kature & Anr. 1998 SCC (Cri) 564. The Hon. Apex Court observed as under: