N Criminal Appeal No 605 of 1981
Appeal by special leave from the Judgment and Order dated the 8th April 1980 of the Ahmedabad High Court in Criminal Appeal No 218 of 1978 with Crl
Appeal No 603 of 1978
MC Bhandare T Sridharan Mrs section Bhandare and Miss CK Sauhantia for the Appellant
Miss Maya Rao for Respondent No 1
JL Jain and RN Poddar for Respondent No 2
The Judgment of the Court was delivered by MISRA J
In this appeal by special leave the narrow question that this Court proposes to examine is whether the High Court was right in holding that churning of the curd of which a sample was taken if done with hand was done in a proper manner so as to make the sample homogeneous and representative
The few relevant facts are that Shri GA Parikh Food Inspector attached to Baroda Municipal Corporation visited the shop of the respondent No1 accused Madanlal Ramlal Sharma on September 4 1976 around 720 am
He purchased curd from a container having 2 12 Kg of curd for the purpose of analysis
There was a board hanging on the outer side of the container that 11 the curd is prepared from cow s milk
The Food Inspector purchased 600 grams of curd and after churning the curd he divided it in three equal parts and prepared three separate samples each kept in a separate bottle
After various formalities including obtaining the sanction for prosecuting the respondent accused
a complaint was filed in the Court of the learned Judicial Magistrate First Class Municipality at Baroda
In the course of trial at the request of the accused the third sample was sent to the Central Food Laboratory for analysis and report
It may also be mentioned that the Food Inspector himself had sent one sample to the public analyst attached to the laboratory set up by the Municipal Corporation for analysis of article of food
The report of the public analyst shows that the sample of curd contained 3 milk fat and 117 milk solid non fat
On the other hand the report of the Central Food Laboratory Calcutta exhibit 15 shows that milk fat was 295 and milk solid non fat 108
It was opined that the sample of curd was adulterated
The learned Magistrate held that the curd in question was prepared out of cow s milk that it did not conform to the prescribed standard and reached the conclusion that the prosecution case was established beyond a shadow of reasonable doubt
Consequently the learned Magistrate convicted the first respondent accused for an offence under section 7 1 read with section 16 1a1 of the and sentenced him to suffer rigorous imprisonment for four months and to pay fine of Rs 500 in default to suffer further rigorous imprisonment for two months
The first respondent accused preferred Criminal Appeal No46 of 1977 in the Court of Sessions at Baroda
The learned Additional Sessions Judge who heard the appeal inter alia held that proper churning of the sample having not been done the sample cannot be said to be homogeneous and representative of the curd in question so as to arrive at a proper conclusion on analysis of the sample and on the short ground acquitted the accused
Two appeals were preferred against the judgment of the learned Sessions Judge
Criminal Appeal No 218 of 1978 was preferred by the State of Gujarat and Criminal Appeal No 603 of 1978 was preferred by the complainant Food Inspector
A division Bench of the Gujarat High Court disposed of both the appeals by a common judgment
The High Court affirmed the 12 acquittal observing that the conclusion is inescapable that the prosecution has failed to prove that the churning was done in a proper manner so as to make the entire curd one and all the samples would be identical in themselves  Hence this appeal by special leave by the complainant Food Inspector
The sample of curd was taken on September 4 1976
Six years have passed and two courts have concurred in acquitting the accused namely the Sessions Judge and the High Court
We are therefore reluctant to interfere with the order of acquittal
But the learned counsel Mr M C Bhandare for the appellant Food Inspector and the learned counsel Mr Nain appearing for the State of Gujarat second respondent supporting the appellant urged that irregularity in churning the curd before sampling the same in bottles as found by the High Court if allowed to remain unquestioned it would have an adverse effect on a large number of pending cases
We are therefore only inclined to examine the legal submission and we may make it absolutely clear that we are disinclined to interfere after six years in what is found to be marginal adulteration by the learned Magistrate so as to send the respondent to jail though we must make it abundantly clear that we do not look upon with equanimity on offences under the because these offences have the deleterious effect playing havoc with the health and well being of a large segment of the Society
But the acquittal by two courts and delay of six years and coupled with the finding that there was marginal adulteration would certainly be a disincentive to interfere with the Order
It is indisputable that curd is an article of food
Rule 22 of the Prevention of Food Adulteration Rules 1955 Rules for short provides that in the case of curd a quantity of 200 grams has to be sent to the public analystDirector of Central Food Laboratory for analysis
The Standard for cow s milk for Gujarat as prescribed under the Rules is that it must contain 35 milk fat and 85 milk solids non fat
Further provision is that the curd obtained from any kind of milk shall have the same content as the milk fat and milk solids non fat as the milk from which it is prepared
Section 13 3 of the Act provides that the certificate issued by the Director of Central Food Laboratory under section 2 B shall supersede the report given by the public analyst under 13 sub section 1
The report of Central Food Laboratory shows that the sample contained 29 of milk fat
Therefore the conclusion that the sample of curd was adulterated is unquestionable
The learned Sessions Judge found that after purchasing the curd in order to make the sample homogeneous and representative churning was not done as required and therefore the sample was not both homogeneous and representative and therefore the accused could not be said to have sold or stored for sale adulterated curd
While affirming this conclusion the High Court has observed that the evidence of exhibit 49 Devsibhai Ramjibhai a defence witness and the statement of the accused recorded under section 248 2 Cr
PC would show that the churning was not done by an instrument but the complainant had done it with his hand and thereafter curd was divided into three parts and three sample bottles were filled
The High Court then observed that on this point Devsibhai Ramjibhai had not been cross examined
The High Court while proceeding to appreciable the evidence of Devsibhai Ramjibhai accepted it in preference to the other evidence of the complainant who had stated that the churning was done with a spoon
Then comes the observation of the High Court which clinches the matter
It reads as under But fortunately for the prosecution when the spoon aspect becomes doubtful and when the defence version clearly found by us on record is that the allegation is that the churning was done by means of hand alone it was quite necessary for the prosecution to challenge this version of the defence which has been given by the defence witness on oath
In the absence of that unfortunately we have come to the conclusion that the prosecution has failed to prove that the churning was done in a proper manner so as to make the entire curd one and all the samples would be identical in themselves
 The High Court held that on this short ground alone the acquittal must be affirmed
With respect we find it very difficult to subscribe to the view taken by the High Court
Rule 14 provides that sample of food for the purpose of analysis shall be taken in clean dry bottles or jars or in other suitable containers which shall 14 be closed sufficiently tight to prevent leakage evaporation or in the case of dry substance entrance of moisture and shall be carefully sealed
Rule 15 provides for labelling and addressing the bottles
Rule 16 provides for packing and sealing the samples
Rule 20 enables the Food Inspector to add prescribed preservative to the sample
Rule 22 prescribes quantity necessary for analysis
It may be recalled that section 11 prescribes procedure to be followed by Food Inspector Our attention was not drawn to any provision in the Act or the Rules making it obligatory that churning should be done with some machine so as to make a sample homogeneous and representative sample
We are conscious of the fact that in milk and milk preparations including curd it is distinctly possible that the fat settles on the top and in order to find out whether the milk or its preparation such as curd has prescribed content the sample must be homogeneous and representative so that the analysis can furnish reliable proof of nature and content of the article of food under analysis
For this purpose churning is one of the methods of making the sample homogeneous and representative
But having said this there is nothing in the Act or the Rules which prescribes that churning must be done by some instrument and that churning done by hand would not provide a homogeneous and representative sample
Commonsense dictates that articles of food like milk and curd when churned with hand would properly mix up from top to bottom
More so when the quantity is either 600 grams which was the quantity purchased or 2 12 kgs
which was the quantity in the container
There was evidence that the churning was done by spoon
But even if the High Court found that evidence unreliable and evidence of defence witness Devsibhai Ramjibhai so much reliable that it was prepared to act upon it disagreeing with the other evidence the evidence of Devsibhai Ramjibhal was that churning was done with hand and he did not say that the churning was not effective
We therefore find it difficult to subscribe to the view of the High Court that the churning is required to be done by some instrument or that the churning done by hand would not meet with the requirements of making a sample homogeneous and representative
There has to be a finding that the churning done with hand was not adequate
There is no such finding
We are therefore of the 15 opinion that the High Court was not justified in confirming the acquittal on this ground
Having made the position in law clear as we understand it we decline to set aside the acquittal
Subject to above observation the appeal is dismissed
HLC Appeal dismissed


Summary:
The respondent was convicted and sentenced for an offence under the on a complaint that a sample of curd purchased from his shop had been found not to conform to the standard prescribed
He preferred an appeal and the Sessions Judge acquitted his on the short ground that the sample was not homogeneous and representative of the curd purchased as the curd had not been churned properly before it was sent for analysis
The High Court affirmed this conclusion and dismissed the appeals filed against the order of acquittal
The High Court in preference to the evidence of the complainant that the churning of the sample had been done with a spoon placed reliance on the evidence led by the defence that the churning had not been done by any instrument but it had been done by the complainant with his hand
The High Court stated that since the prosecution had not challenged the defence version that the churning of the sample had been done by means of hand alone it had failed to prove that the churning had been done in a proper manner
Declining to interfere with the acquittal of the respondent by the two lower courts after a lapse of six years and dismissing the appeal  HELD In milk and milk preparations including curd it is distinctly possible that the fat settles on the top and in order to find out whether the milk or its preparation such as curd has prescribed content the sample must be homogeneous and representative so that the analysis can furnish reliable proof of nature and content of the article of food under analysis
For this purpose churning is one of the methods of making the sample homogeneous and representative
But there is nothing in the Act or the Rules which prescribes that churning must be done by some instrument and that churning done by hand would not provide a homogeneous and representatives sample
Commonsense dictates that articles of food like milk and curd when churned with hand would 10 properly mix up from top to bottom
More so when the quantity is either 600 grams which was the quantity purchased or 2 12 kg
which was the quantity in the container
14 C E In the instant case there was evidence that the churning was done by spoon
But even if the High Court found that evidence unreliable and the evidence of defence witness so much reliable that it was prepared to act upon it disagreeing with the other evidence the evidence of defence witness was that churning was done with hand and he did not say that the churning was not effective
It is therefore difficult to subscribe to the view of the High Court that the churning done by hand would not meet with the requirements of making a sample homogeneous and representative
There has to be a finding that the churning done with hand was not adequate
There is no such finding
The High Court was therefore not justified in confirming the acquittal on this ground
14 F H 15 A