IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Revision No. 817 of 2002 Date of decision : 27-05-2009 Harwant Kumar .....Petitioner State of Punjab .....Respondent CORAM : HON'BLE MS. JUSTICE NIRMALJIT KAUR Present : Mr. H.K. Aurora, Advocate for the petitioner. Mr. J.S. Bhullar, A.A.G., Punjab for the State. ***** NIRMALJIT KAUR, J. The present criminal revision has been filed against the judgment of District and Sessions Judge, Hoshiarpur dated 04-04-2002 vide which the appeal against the judgment dated 10-11-2000 passed by the Chief Judicial Magistrate, Hoshiarpur, convicting the petitioner under Section 16 read with Section 7 of the Prevention of Food Adulteration Act, was dismissed. The petitioner was sentenced to undergo rigorous imprisonment for six months and to pay a fine of Rs.1000/- and in default of payment of fine to undergo further rigorous imprisonment for a period of one month. The first argument raised by learned counsel for the petitioner was that percentage of milk solids not fat, as per the Rules, should be 8.5%, whereas, it has been found to be 8.1%. Thus, the difference is only Criminal Revision No. 817 of 2002 -2- .4% and not 5% of the minimum prescribed standard, as concluded by the Public Analyst in his report dated 30-06-1999. According to learned counsel for the petitioner, this conclusion has been erroneously drawn and could be either typographical error or a wrong mathematical calculation. Learned State counsel, however, vehemently contested the claim of the petitioner and submitted that there was no mistake and it has been rightly concluded that there was deficiency by 5.0% of the minimum prescribed standard. He further asserted that there was no error. According to him, in case, it was a case of error, the petitioner would have raise this issue before the Courts below and issue should have been framed or at least the questions to this effect could have been put to the witnesses and they should have been cross-examined on this point. Taking up this argument of learned counsel for the petitioner, I find no merit in the same, in as much as, no evidence was led to show that the findings recorded by the Public Analyst that there was deficiency in milk solids by 5.0% instead of 0.4% was inaccurate. Rather, this objection was not raised anywhere either before the Trial Court or before the Appellate Court. No issue was framed. Even a question to this effect was not put to any of the witnesses. This ground has not even been taken in the grounds of the present Criminal Revision Petition before this Court. Not even an application for leading additional evidence or amendment of the pleadings was ever filed before the Appellate Court or this Court. This argument is, therefore, rejected and is, therefore, restrain from raisingthe same at this stage. Learned counsel for the petitioner, however, raised yet another argument. It was submitted that the evidence led by the prosecution in the shape of report of the Public Analyst goes to show that the milk fat was present in the Cow milk more than the required percentage prescribed under the Rule. Under the Rules, the milk Fats required to be present in Criminal Revision No. 817 of 2002 -3- the milk are 4%, whereas, it has been found to be 7.5% by the Public Analyst in his report Exhibit PG. Further, the percentage of milk solids not fat as per the rules should be 8.5%, whereas, it has been found 8.1% which is only a marginal difference. As such, when the milk fats have been found to be much more than what is required under the Rules and the milk solids not fat are deficient only by a small margin then it goes to show that the milk was not stirred and made homogeneous by the Food Inspector at the time of taking its sample. Reliance was placed on the judgment of Division Bench of this Court, rendered in the case of State of Punjab vs. Mohinder Singh 1991(3) R.C.R. (Criminal) 304. The Division Bench, while dismissing the appeal, filed by the State of Punjab, rejected the argument of the Deputy Advocate General and held that if in the sample of the milk, milk fat found to be excess but milk solids not fat is found to be slightly deficient, the milk is not said to be adulterated and only the inference that can be drawn, in such a situation is that the cow was not properly fed. While upholding the acquittal, reliance was placed on various other authorities of this Court as follows :- “ It was argued on behalf of the appellant that milk solids not fat found in the sample were 8 per cent which were deficient of the minimum prescribed standard and the milk was, thus, adulterated. The fact that the contents of milk fat were found in excess of the minimum prescribed standard did not absolve the respondent from his criminal liability of the offence of selling adulterated article. The percentage of various constituents of milk disclosed by the Public Analyst could not be added in order to deduce a conclusion therefrom about the over-all deficiency or otherwise of the milk from its prescribed standard. The argument addressed by the learned Deputy Criminal Revision No. 817 of 2002 -4- Advocate General, Punjab, is, however, devoid of merits as it has been held in various authorities of this High Court that when milk solids not fat constituents are slightly deficient and milk fat contents are in excess of the minimum prescribed standard then no inference can be drawn that the milk was not pure. In the case of Hans Raj v. The State of Punjab, 1980(2) Food Adulteration Cases 396, it was held :- “ When the fat content in the milk is much higher than the minimum prescribed standard, it has necessarily to be inferred that no water had been added to the milk and that no fatty solid contained below the standard prescribed could justify that either the cow from the udders of which the milk was drawn was not given the proper feed or that the Public Analyst's report was erroneous but not the inference that the milk in question was not pure.” Similarly in the case of Uagar Singh v. The State of Punjab, 1980(1) FAC 432 the Public Analyst found milk fat to extent of 5.3 per cent and milk solids not fat 7.5 per cent, it was observed : “ The percentage of milk fat and non-fatty milk solids depends on the proper feeding and health of the animal. 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 it. Apparently it is not possible to take out non fatty solids from milk without reducing or affecting the fact contents. As such in this case it cannot be said that the accused-petitioner intentionally effected any adulteration in the milk.” Admittedly, as per the provisions of Food Adulteration Act, Criminal Revision No. 817 of 2002 -5- cows' milk should contain milk fat 4% and milk solids not fat 8.5%. In this case, when the milk sample was analysed by the Public Analyst, he found that the sample contained milk fat 7.5% and milk solids not fat 8.1%. In the case of State of Punjab (supra), the sample contained milk fat 7.6% and milk solids not fat 8% and the same was held to be deficient in milk solids not fat by 6% of the minimum prescribed standard and the Division Bench upheld the acquittal on the ground that when the milk is found deficient in milk solids not fat, it cannot be said that the milk is adulterated. In the case of Darshan Lal v. State of Haryana 1995(1) F.A.C. 79, the milk was found deficient in milk-solids-not-fat only by 0.4 per cent, conviction and sentence imposed by the Courts below was set aside. Similarly, in the case of Hans Raj (supra) and in the case of Ujagar Singh (supra), which was further relied on by the Division Bench of this Court, similar view was held. In the present case, although no fault can be found with the procedure followed for collecting the sample, it is nevertheless a case where standard of milk fat is found to be in excess and the milk solids not fat is slightly deficient, it therefore falls within the parameters, as laid down, in the case of State of Punjab (supra), where, in similar circumstances, the milk was found to be not adulterated but the only inference that was drawn that the cow was not properly fed. Learned trial Court and the Appellate Court, in these circumstances, were therefore, not justified in arriving at a conclusion that the milk was adulterated. The judgment dated 10-11-2000 passed by the Chief Judicial Magistrate, Hoshiarpur and the judgment dated 04-04-2002 passed by the District and Sessions Judge, Hoshiarpur are, therefore, set Criminal Revision No. 817 of 2002 -6- aside and the revision petition is, accordingly, allowed. Benefit of doubt is hereby given to the accused-petitioner and he is acquitted of the said charge. (NIRMALJIT KAUR) JUDGE 27-05-2009 gurpreet Whether to be referred to the Reporter : Yes / No