IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Revision No. 1064 of 1997 Date of Decision : January 08, 2010 Ram Niwas ....Petitioner Versus State of Haryana .....Respondent CORAM : HON'BLE MR. JUSTICE T.P.S. MANN Present : None for the petitioner. Mr. Manmohan Sikka, Deputy Advocate General, Haryana T.P.S. MANN, J. (Oral) The petitioner was tried under Section 7 read with Section 16(1)(a)(i) of the Prevention of Food Adulteration Act, 1954 on the ground that the sample of mixed milk seized from him was found deficient by 3.5% in respect of milk solids not fat. Accordingly, vide judgment and order dated 1.9.1987, Chief Judicial Magistrate, Sonepat, convicted him for the said offence and sentenced him to undergo RI for a period of six months and to pay a fine of Rs.1000/-. In default of payment of fine, he was required to undergo RI for four months. Aggrieved of the same, the petitioner filed an appeal, which was accepted by Additional Sessions Judge, Sonepat on 6.7.1988. His conviction and sentence were set aside and the case remanded for de novo trial. Pursuant thereto, warrant trial was ordered on 22.7.1992. Pre-charge evidence was, thereafter, recorded and the charge framed Crl. Revision No. 1064 of 1997 -2- against the petitioner on 26.8.1992 to which he pleaded not guilty and claimed trial. Vide judgment dated 12.5.1994, Additional Chief Judicial Magistrate, Sonepat, once again, convicted the petitioner for offence punishable under Section 7 read with Section 16(1)(a)(i) of the Act and vide order dated 16.5.1994 sentenced him to undergo RI for six months and to pay a fine of Rs.1000/-. In default thereof, he was required to undergo further RI for two months. Aggrieved of the same, the petitioner filed an appeal, which has been dismissed by Additional Sessions Judge, Sonepat, on 10.11.1997. Under these circumstances, the petitioner is now before this Court by way of a revision filed under Sections 397/401 Cr.P.C. According to the case of the prosecution Shri S.K.Sharma, Govt. Food Inspector alongwith Dr. Baldev Datta, Deputy Chief Medical Officer, was present near Geeta Bhawan chowk, Sonepat, on 26.7.1982. The accused while carrying three drums containing about 50 kgs of mixed milk was intercepted. The milk was meant for public sale. The Food Inspector demanded a sample of mixed milk by serving notice Ex.PA upon the accused and 660 mls of mixed milk was purchased after its contents were thoroughly mixed and made homogenous. The purchased milk was divided into three equal parts and 18 drops of formalin 40% were added to each of the three bottles in which the purchased milk was put. The bottles were stoppered, tagged and securely fastened. One sealed bottle with specimen impression of seal used was sent to the Public Analyst. Two sealed sample bottles were Crl. Revision No. 1064 of 1997 -3- deposited with the Local Health Authority, Sonepat. After receipt of report Ex.PD from the Public Analyst whereby it was found that milk solids not fat were deficient by 3.5% of the minimum prescribed for mixed milk, the Government Food Inspector filed the complaint Ex.PE in the Court. In support of its case, the prosecution had examined Dr.Baldev Datta, Deputy Senior Medical Officer, Sonepat as PW1, Sh.A.N.Sharma, Government Food Inspector as PW2 and Sh.S.K.Sharma, Government Food Inspector as PW3. When examined under Section 313 Cr.P.C., the petitioner pleaded false implication. According to him, he was not selling the milk at the relevant time. One of his neighbour Dhammo had requested him to bring cow's milk for him. Accordingly, he was bringing the milk for him, which was not meant for sale. It was for the personal use of Dhammo. In support of his plea, the petitioner examined Dhammo as DW1. As per the requirement of law, the mixed milk in question was required to contain a minimum of 4.5% fat and 8.5% milk solids not fat. Against the prescribed standard, the sample of milk taken from the petitioner was found to contain 5.2% fat and 8.2% milk solids not fat. As the milk solids not fat were found to be deficient by 3.5%, sample of milk taken from the petitioner was found to be adulterated. None has appeared for the petitioner. However, with the assistance of the State counsel, I have perused the records. Crl. Revision No. 1064 of 1997 -4- The Government Food Inspector was required to state in the complaint that the sample was taken after stirring the milk. The complaint Ex.PE is nothing but a printed proforma and the blanks filled in by the complainant in his hand. No where in the same is mentioned that all the pre-requisites, which were required to be taken while taking the sample, were taken. What is mentioned is that 660 mls. of milk was taken after mixing the whole properly and making it uniform for analysis. No mention was made as to what was the instrument used or procedure adopted in mixing the contents. In Chhajju Ram V The State of Haryana 1993(2) Prevention of Food Adulteration Cases 78, the Court held that if a sample was taken without mixing the milk thoroughly or making it homogenous, then the fat being at the top, its contents would not be in the same quantity in the lower portion as those in the upper part. The relevant observations are as follows:- “…. The law is well settled that before Milk sample is taken, which is a liquid, it should be stirred and made homogenous. The reason for this is that the milk, which is liquid, contains various constituents in different forms. Some are very thoroughly mixed up in it but some 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 Crl. Revision No. 1064 of 1997 -5- fat content rises to the top and accumulates 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 portion 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. In the case in hand, the evidence of both the witnesses is that the sample before it was taken, was homogenous. The complaint does not contain any reference about the stirring of the milk. It was argued before me that if it is not mentioned in the complaint that the milk was stirred before the sample was taken, then the accused is entitled to acquittal. The circumstances are to be proved by the complainant. There is no proforma prescribed for the drafting of the complaints. Necessary facts which constitute an offence have to be mentioned in the complaint. If some essential facts or essential requirement which are pre- requisite before doing an act are not mentioned in a complaint, then the accused, in given cases, has the right to say that the prosecution has made an improvement in its case. It is the practice in the States of Punjab and Haryana that the Food Inspectors have got a form of complaint printed. They simply fill in the blanks in accordance with the facts of the cases before filing those in Courts. Such a practice is not healthy, as such proformas are not comprehensive to contain all the facts of every conceivable case. It is high time that the Food Inspectors realize that such printed proformas which are deficient in certain aspects should not be Crl. Revision No. 1064 of 1997 -6- used for filing the complaints. Almost in every case, which I have come across, the mention of the stirring of the milk is singularly absent. In many circumstances, as in this case, this fact assumes importance to know whether the Food inspector has performed his duties appropriately and in accordance with the accepted rules of taking samples. It is very easy for a witness to say such a fact at the time of evidence. If this improvement is allowed in every case then a day will come when the Food Inspectors will omit to mention in the complaints how the sample was taken; how and what type of preservative and what quantity of it was added to the sample. I, therefore, do not feel inclined to grant this latitude to the Food Inspectors to make improvements in the case under the Prevention of Food Adulteration Act as it has been done in this case by mentioning only at evidence stage about the stirring of the milk. On evidence, I find that it is a case of deliberate improvement”. In Hans Raj V The State of Punjab 1980(II) Prevention of Food Adulteration Cases 396, the Court considered the factum of milk solid not fat being less than minimum prescribed and the milk fat much higher, either on account of the cow from the udders of which milk was drawn was not given the proper feed or that the Public Analyst’s report was erroneous but not that the milk in question was not pure. It was held as follows:- “….it had necessarily to be inferred that no water had been added to the milk and in such a case the mere circumstance that non-fatty solid contained below the Crl. Revision No. 1064 of 1997 -7- standard prescribed by the rules could justify the inference either that 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 that the milk in question, was not pure”. Similarly in Ujagar Singh V The State of Punjab 1980(1) Prevention of Food Adulteration Cases 432, it was observed as follows:- “The fat contained in the sample was 1.3% more than the prescribed standard but the solids not fat were less by 1%. The percentage of milk fat and non-fatty milk solids depends on the proper feeding and the 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 fat contents. As such in this case it cannot be said that the accused-petitioner intentionally affected any adulteration in the milk”. In State of Punjab V Mohinder Singh 1991(3) Recent Criminal Reports 304, a Division Bench of this Court approved the judgments in the cases of Hans Raj (supra) and Ujagar Singh (supra) by observing as under:- “In view of the above authorities, it is clear that when the milk is found deficient in milk solids not fat it cannot be said that the milk is adulterated but the only inference that can be drawn is that the cow was not Crl. Revision No. 1064 of 1997 -8- properly fed. The learned trial Court in these circumstances was justified in arriving at a conclusion that the respondent could not be held liable for selling adulterated milk”. In Administrator of the city of Nagpur V Laxman and another 1995 Supp (1) Supreme Court Cases 247, the Hon’ble Supreme Court also approved the view of this Court by observing as follows:- “…..The whole question is whether the sample of cow milk is adulterated so as to attract the penal provision of the Act. Learned Magistrate who acquitted the respondent who was a small milk vendor noted that the fat percentage is 6% as against 3.5% which is more than the standard prescribed for cow milk. The only shortfall was that S.N.F. was 7.3% where it ought to have been 8.5%. Further, it noted that the total solids are 13.37 which is again more than the satisfying standard of cow milk. Under these circumstances, we cannot say that Courts below have erred in acquitting them giving the benefit of doubt to the respondents. The appeal is, therefore, dismissed. However, other questions of law which have been debated by the Courts below do not really matter, therefore, we do not propose to examine the same”. In the present case also the percentage of the fat was higher than the minimum prescribed while the milk solids not fat were deficient by only 3.5%. The only inference that can be drawn is that either the sample was not properly taken or analyzed or that the cattle was not properly fed. The Courts below did not take care of the aforesaid factors. Therefore, the conviction of the petitioner cannot be sustained. Crl. Revision No. 1064 of 1997 -9- Resultantly, the revision is accepted, conviction and sentence of the petitioner is set aside and he is acquitted of the charge against him. The amount of fine, if already recovered from the accused, be refunded to him. ( T.P.S. MANN ) January 08, 2010 JUDGE ajay-1 Whether referred to the Reporters : YES