CIVIL APPEAL 91 of 2004 on 19 December 2003

Criminal Revision No.91 of 2004(O&M) [1]

IN THE HIGH COURT FOR THE STATES OF PUNJAB &HARYANA AT CHANDIGARH

...

Criminal Revision No.91 of 2004 (O&M)

Decided on : October 14, 2010

Bhagel Singh

... Petitioner

VERSUS

State of Haryana

... Respondent

CORAM :HON'BLE MR.JUSTICE A.N.JINDAL

Present:Mr.J.S.Toor,

Advocate for the petitioner.

Mr.J.S.Rattu, Deputy Advocate General, Haryana.

-A.N.JINDAL, J.

Challenge is to the judgment dated 19.12.2003 passed by theAppellate Court dismissing the appeal, preferred by the accused – petitioner(herein referred as `the accused') against the judgment dated 27.11.1999passed by the Trial Court convicting and sentencing him to undergorigorous imprisonment for six months and to pay fine of Rs.1000/- underSection 16(1)(a)(i) read with Section 7 of the Prevention of FoodAdulteration Act, 1954 (for brevity `the Act').

The prosecution case in brief, is that on 25.2.1992, Yashpal Kalra, Government Food Inspector intercepted the accused, who was foundcarrying 30 kg of cow milk. After disclosing his identity and afterassociating Dharampal Singh an eye-witness, the Food Inspector servednotice (Ex.PA) upon the accused. After stirring the milk, he purchased 750ml out of it on payment of Rs.4.50 paise. Then he divided the purchasedmilk in three equal parts; poured the same in three dry and clean bottles;added necessary preservative; duly labeled, stoppered and sealed the same,and sent one sample bottle to the Public Analyst, Haryana, Chandigarh foranalysis. The remaining bottles were deposited with the Local HealthAuthority. He completed the other legal formalities. The Public Analystvide his report (Ex.PD) found milk fat to the extent of 4.6% and milk solidsnot fat 7.6%, and as such, he opined that milk solids not fat deficient by1.1% of the minimum prescribed standard.

On service of notice under Section 13(2) of the Act, on therequest of the accused, the second part of the sample was sent to theDirector, Central Food Laboratory for analysis, who vide his report Ex.PFagain found the sample to be adulterated, inasmuch as deficiency of milksolids not fat to the extent of 1%.

After recording the preliminary evidence, the accused wassummoned. He was charged for the aforesaid offence, to which he pleadednot guilty and opted to contest.

In the after charge evidence, the prosecution examined YashpalKalra (PW1), Dr.B.B.Lala (PW2) and Balwant Singh (PW3).

The accused in his statement under Section 313 of the Code ofCriminal Procedure, 1973 denied all the incriminating circumstancesappearing against him and further pleaded that he was not carrying the milk for public sale, but was taking it for `Akhand-path' in the Gurudwara. Indefence, he examined Kuljit Singh (DW1). The trial ended in conviction.His appeal also failed.

Heard.

The counsel has urged that since there are divergent reportsmade by Public Analyst, Haryana (Ex.PD) as well as by Central FoodLaboratory (Ex.PF), therefore, due to the variations therein, the same cannotbe believed. No doubt, the report made by Public Analyst, Haryana (Ex.PDindicates milk solids not fat to the extent of 7.6% and milk fat to the extentof 4.6%, whereas, the report made by the Central Food Laboratory pointsout that milk fat was found to be 4.5% and milk solids not fat was found tobe 7.53%, but it is settled by now that the report made by Central FoodLaboratory supersedes the report made by Public Analyst and on receipt ofthe report of the Central Food Laboratory, the report made by PublicAnalyst loses its existence. The Kerala High Court in caseFood Inspector,Corporation of Cochin, Cochin-II vs. Hameed,1983 Kr LT 901 : (1983Cri LJ NOC 224 KER), after considering practically the entire case law onthe point, including the decisions inAbdul Hameed vs. Food Inspector,1969 Ker LR 922, State of Kerala vs. Vasudevan Nair, 1974 KrLT617,State of Kerala vs. P.K.Chamu,1975 Ker LT 411 and State ofKerala vs. K.C.John, 1978 Ker LT 738, observed in para 23 as under:-“it is settled law that report of the Public Analyst supersededby the certificate of the Director which has conclusive effectalso. Analysis in the two cases is done by different persons atdifferent laboratories. It would not be surprising if, assuming the best conditions, there is some difference in the results ofthe two analysis. Even in cases where sampling and analysis isdone to the satisfaction of the most exacting standards, therecould be variation in the percentage of different componentsarrived at in the two laboratories. But once the report of thePublic Analyst is superseded by the report of the DirectorCentral Food Laboratory, there is no report of the PublicAnalyst available in the eyes of law for comparison with thecertificate issued by the Director. The court cannot, therefore,legitimately make such a comparison and conclude that thereare divergences and therefrom draw an inference that thesampling must have been done improperly. To arrive at such aconclusion would amount to flying in the face of settledposition of law and the terms of sub sections (3) and (5) ofSection 13 of the Act.”

The aforesaid observation were later on considered by A Full Bench ofKerala High Court in case Mathukutty vs. State of Kerala and another,AIR 1988 Kerala 60, whereupon, they observed as under:- “We hold that the above is the correct position of law. Thedivergences in the report and the certificate cannot be used tocontend that the number of insects or the percentage of insectdamaged seeds have increased during the interval between theanalysis by the Public Analyst and the Director. Hence, wecannot draw an inference that on the date of sampling, number of insects or percentage of insect damaged seeds would havebeen much less than what is shown in the report or thecertificate.”

Thus, in the light of the aforesaid decision, no importancecould be attached to the report of the Public Analyst when the report of theCentral Food Laboratory has been requisitioned and proved on the record.

Ratio decidendi

Now, coming to the other argument that the complaint does notcontain the precise allegations and none of the witnesses have also statedabout the yardsticks applied by the Food Inspector for stirring the milk fortaking out the samples. In this regard, both the prosecution witnesses,namely; Yashpal Kalra (PW1) and Dr.B.B.Lala (PW2) have consistentlystated that the accused was found in possession of 30 kg of cow milk andthe sample was taken out by Yashpal Kalra, Government Food Inspector(PW1) after properly mixing and stirring the whole milk. Similarly, thecomplaint also clearly indicates that the milk was stirred and madehomogeneous before making purchase of sample milk out of the bulk milk.

There is nothing in the Act, which may be indicative of themeasures to be taken at the time of drawing the sample. The rules onlyprescribe for stirring and making the milk homogeneous. Similar view wastaken by the Supreme Court in case Food Inspector, MunicipalCorporation, Baroda vs. Madan Lal Ram Sharma,1982(2) FAC 372,wherein, it was observed that there is nothing in the Act or Rules, whichprescribed that churning of food like milk and curd must be done withsome instrument. Further, this High Court in case Gobind Ram vs.

State of Haryana and another,2001(2) FAC 218 observed that it was theduty of the vendor to have stirred the milk and make it homogeneous beforegiving the sample to the Food Inspector. In any case, no undue importancecould be given to the stirring and making the milk homogeneous beforetaking the sample, to be sent for analysis. Similar observations were madeinState of Punjab vs. Ramesh Kumar, 1992(1) PFA Cases (P&H)120, wherein, it was observed that no undue importance can be given to thenon-mention of the fact of stirring in the complaint even while evaluatingthe evidence of the prosecution on that point.

As regards the argument that the Food Inspector did notmention in the complaint with regard to stirring of the milk with his ownhand and the printed words do indicate that he did not apply his mind, it isobserved that it has been usually seen that Food Inspectors, who aredeputed to take the samples, get the forms printed and they are well-awareof the contents mentioned therein. Therefore, they complete the form beingalive of the contents mentioned therein and, as such, the Food Inspector didnot write in his own hand about the stirring of the milk and making ithomogeneous. However, they carefully fill in the blanks, mention thenames of the parties, the time and place of sampling, the names of thewitnesses, nature of the article and such other things whichever happen,therefore, it does not necessarily make the court to draw an inference thatthe Food Inspector did not apply his mind.

As regards the next argument that the deficiency is marginalone and, therefore, the same could be, because of other reasons, but itcannot be said to be adulterated, it may be observed that the Legislature

after long years of experience was well within its wisdom to make theparameters in order to assess the purity of the food articles and if the articleis found to be less than the required standard, then even a negligible or amarginal deviation from the prescribed standard would render the sameadulterated. It was observed in Municipal Committee, Amritsar vs.Hazara Singh,1948-1997 SCPFA cases 131 that no law can be laid downholding that minimal deficiencies in the milk components justified acquittalin all food adulteration cases.

It was observed by the Full Bench of this High Court inState of Punjab vs.

Teja Singh,1977 FAJ 237 that it is not permissible to add the percentageof various constituents of milk disclosed by the Public Analyst and todeduce a conclusion therefrom about the over-all deficiency or otherwise ofthe milk. The Court is not entitled to assume a slight or reasonable marginof error in the conclusion recorded by the Public Analyst. Negligible ormarginal deviation from the prescribed standard cannot be ignored. Thus,the argument that since the percentage of the milk fat was in excess of theprescribed standard, would be said to be persuasive to take the case out ofthe term of `adulterated food article'. It may be mentioned that according tothe definition of “adulterated” as given in Section 2 of the Act, if the qualityor purity of the article falls below the prescribed standards or itsconstituents are present in quantities not within the prescribed limits ofvariability, the same is “adulterated”. Hence, while deriving the ratio fromthe observations made by the Full Bench judgment, as referred to above, themilk in question being not in conformity with the prescribed standard can Criminal Revision No.91 of 2004(O&M) [8]

certainly be said to be adulterated.

No other point has been raised.

The menace of adulteration is on the increase these days. Thebusiness men of the day in an endeavour to become rich over-night findeasy ways and means to earn money even at the cost of the health of thepublic, therefore, no leniency in the sentence can be shown.

Dismissed.

October 14, 2010

`gian'

( A.N.JINDAL ) JUDGE