IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Criminal Revision No. 91 of 2002. Judgment reserved on : 2.4.2009. Date of decision: April 6, 2009. Chhotu Ram …Petitioner. Versus State of Himachal Pradesh ....Respondent. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting ? Yes. For the Petitioner : Ms. Sweta Julka, Advocatel. For the Respondent : Mr. Anshul Bansal, Additional Advocate General. __________________________________________________________ Kuldip Singh, Judge The petitioner was prosecuted for having committed offence punishable under Section16 (1) (a) (i) read with Section 7 of the Prevention of Food Adulteration Act, 1954 (for short ‘Act’). The learned Chief Judicial Magistrate, Hamirpur on 29.10.1999 in P.F.A. Act case No. 2-III of 1994 convicted and sentenced the petitioner to rigorous imprisonment for six months and to pay a fine of Rs.1000/- and in default of payment, he shall further undergo simple imprisonment for two months. In Criminal Appeal No. 23 of 1999 decided on 9.4.2002, learned Sessions Judge, Hamirpur maintained the conviction and sentence of the petitioner. ______________________ 1 Whether reporters of Local Papers may be allowed to see the Judgment ? Yes. 2. The prosecution case against the petitioner is that on 28.2.1994 at about 1.45 p.m. at Barru, Tehsil and District Hamirpur, PW-1 K.S.Verma, Food Inspector after disclosing his identity and serving a notice on petitioner purchased 750 mls. cow boiled milk for the purpose of analysis on payment of Rs.6/-, which on analysis by Public Analyst was found to be adulterated as per minimum prescribed standard under the Act. The Food Inspector obtained written consent from the Chief Medical Officer, Hamirpur and thereafter filed complaint in the Court. The notice of accusation under Section 16 (1) (a) (i) read with Section 7 of the Act was put to accused to which he pleaded not guilty. The prosecution has examined four witnesses. The statement of petitioner was recorded under Section 313 Cr.P.C., he examined DW-1 Shankar Singh in defence. The learned Chief Judicial Magistrate, convicted and sentenced the petitioner which was maintained by the learned Sessions Judge, Hamirpur, as noticed above, hence this revision. 3. I have heard Ms. Sweta Julka, Advocate, learned counsel for the petitioner and Mr. Anshul Bansal, learned Additional Advocate General for the State and have also gone through the record. It has been submitted on behalf of the petitioner that two Courts below have misconstrued, mis-interpreted the evidence on record. The public analyst report Ex.PW-1/H and Panchnama Ex.PW-1/C have been misconstrued. The sample was allegedly taken on 28.2.1994. The statement of PW-1 K.S. Verma was recorded in the Court on 6.2.1998 nearly after four years. He made improvement in the statement made in the court regarding the manner the sample was taken. The milk was not made homogeneous before taking the sample and, therefore, the sample was not representative sample and petitioner cannot be convicted and sentenced. The learned Additional Advocate General has supported the impugned judgment and has submitted that two courts below have recorded a finding of fact which cannot be disturbed in revision. 4. The two courts below have convicted the petitioner on the ground that Public Analyst found the sample to be adulterated as the contents of the sample were found deficient in milk fat by 10% and in milk solid not fat by 12%. In written consent Ex.PW-3/A, it has been stated that the contents of the sample are deficient in milk not solid by 12 percent of the minimum prescribed standard. In Ex.PW-3/A, it has not been stated that the sample was found deficient in milk fat. The learned Sessions Judge in paragraph 18 of the judgment has noticed Public Analyst report Ex.PW-1/H and has observed that in Ex.PW-1/H the milk was found deficient in milk fat by 10% and in milk solid not fat by 12% of the minimum prescribed standard. 5. The notice of accusation was put to the petitioner that the contents of the sample were deficient in milk fat by ‘X’% and milk solid not fat by 12% of the minimum prescribed standard. It appears while putting notice of accusation that the contents of the sample are deficient in milk fat, ‘X’% was taken up from Public Analyst report Ex. PW-1/H by reading X% as ten percent. In fact X% in Public Analyst report denotes nil and not ten percent. X% is equivalent to nil is clear from the fact that in Ex.PW- 3/A written consent, there is no mention of X% or ten percent. In these circumstances, the written consent to prosecute petitioner was given only on the ground that the sample was found deficient in milk solid not fat by 12%. The two Courts below have wrongly proceeded against the petitioner on the ground that the sample was deficient in milk fat by X (ten) percent. In these circumstances, conviction and sentence of the petitioner on the ground of deficiency in milk fat in the sample is not sustainable. 6. The connected question is whether the prosecution has proved that the sample of milk was deficient in milk solid not fat by 12% also. In order to establish this, the prosecution was required to prove the other essential ingredients to bring home the guilt of the petitioner. Ex.PW- 1/C is the panchnama prepared by the Food Inspector at the time of taking of the sample. Ex.PW-1/C is on printed proforma in which blanks have been filed in. In main body of panchnama Ex.PW-1/C dated 28.2.1994 there is no mention that the milk was homogeneously mixed and thereafter, sample was taken. There is a writing mark ‘A’ to ‘A’ on panchnama Ex.PW-1/C which refers to mixing of milk at the time of taking sample, but who has written mark ‘A’ to ‘A’ on Ex.PW-1/C is to be seen. 7. PW-1 K.S.Verma, retired Food Inspector has stated that after giving notice Ex.PW-1/A, he had shown his intention to take sample from petitioner from a container containing about 10 kg. boiled milk. He has also stated that the milk was stirred with one kg. measure and the milk was made homogeneous and thereafter 750 mls. milk was taken and panchnama Ex.PW-1/C was prepared. Ram Lal and Kuldeep Singh witnesses were on the spot. PW-1 has nowhere stated in his statement that mark ‘A’ to ‘A’ was written by him on panchnama Ex.PW- 1/C at the time of taking the sample. PW-2 Ram Lal has stated that after stirring the milk with measure 750 mls. milk was taken. He has not stated what was written in Ex.PW-1/C. In cross-examination, he has stated that stirring was done with ½ kg. measure, he does not know what was written by Kuldeep on Ex.PW-1/C. He has stated that he is not on speaking terms with petitioner for the last 18 years. PW-4 Kuldeep Singh did not support the prosecution and he was declared hostile. He was cross- examined by the Food Inspector. In cross-examination, he has denied that the container was stirred by Food Inspector. He has denied that ‘A’ to ‘A’ on Ex.PW-1/C was written by him. 8. PW-1 K.S.Verma, has projected the case by way of statement in the court that boiled milk was stirred before taking sample. He made improvement in his statement in the Court regarding the stirring of milk and making it homogeneous before taking the sample. Statement of PW-1 K.S.Verma was recorded in the court after about four years of the taking of sample. It can be reasonably inferred that after four years the witness cannot be expected to remember the sequence exactly in the manner the events have happened. Panchnama Ex.PW-1/C is the most important document in which Food Inspector has unfolded the process of taking of the sample. Therefore, in case of conflict between the statement in the court which was recorded after about four years, it is safe to rely upon panchnama Ex.PW-1/C which was prepared at the time of taking of the sample. In main body of Ex.PW-1/C there is no reference that the milk was stirred and made homogeneous before taking the sample. There is some reference of stirring of milk and making it homogeneous in mark ‘A’ to ‘A’ in Ex.PW-1/C. 9. The prosecution has given positive suggestion to PW-4 that mark ‘A’ to ‘A’ was written by him. It has not been explained why PW- 4 should write mark ‘A’ to ‘A’ on panchnama Ex.PW-1/C and why mark ‘A’ to ‘A’ was not written by PW-1 Food Inspector. It is not the case of the prosecution that PW-1 Food Inspector did not know Hindi. PW-4 has denied that mark ‘A’ to ‘A’ on Ex.PW-1/C was written by him. PW-2 Ram Lal has stated that he is not on speaking terms with Chotu Ram for the last 18 years. It means his relations with petitioner are not good. In these circumstances, it is not safe to rely on the statement of PW-2 that milk was stirred and made homogeneous before taking the sample when in the main body of Ex.PW-1/C, it has not been stated by PW-1 that the milk was stirred and made homogeneous before taking the sample, mark ‘A’ to ‘A’ on Ex.PW-1/C has not been proved. 10. In Food Inspector Municipal Corporation, Baroda, Vs. Madanlal Ramlal Sharma and another, AIR 1983 S.C. 176, it has been held 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. In State of Punjab vs. Paramjit Singh, 1996 (2) F.A.C., 310, with regard to report of Public Analysis showing that milk solid not fat was found deficient whereas the contents of milk fat above the minimum standard, it has been held that it is a matter of common knowledge that if sample is taken without stirring the milk and making it homogeneous, then such deficiency usually occurs. In State of Himachal Pradesh Vs. Prem Chand, 1990 (1) S.L.C. 267, a learned Single Judge of this Court after noticing Food Inspector Municipal Corporation, Baroda has held that it cannot be doubted that before a sample of milk can be treated to be representative sample, it should be established on the record that the quantity of milk was properly churned to make it homogeneous. 11. In the present case on facts, it has not been proved that the milk was properly stirred and made homogeneous before taking sample and, therefore, it cannot be said that the sample taken by the Food Inspector was representative. This is further fortified by the fact that sample was not found deficient in milk fat rather it was found deficient in milk solid not fat. This is possible when the milk is not stirred and made homogeneous, in that situation the fat would go up and milk solid not fat settles down. The sample was not deficient in milk fat meaning thereby the sample was taken from the top layer of the container and not by stirring and mixing the milk after making the entire contents of the container homogeneous. The prosecution has not led clear cut evidence of stirring of milk and making it homogeneous, inasmuch as in Ex.PW-1/C, the stirring of the milk and making it homogeneous has not been stated and mark ‘A’ to ‘A’ in Ex.PW-1/C which refers to stirring and making of the sample homogeneous has not been proved. 12. In Krishnan and another vs. Krishnaveni and another, 1997 (4) S.C.C. 241, the Apex Court has held that when the High Court notices that there has been violation of justice or misuse of judicial mechanism or procedure, sentence or order is not correct, it is but the salutary duty of the High Court to prevent the abuse of the process or miscarriage of justice or to correct irregularities/incorrectness committed by inferior criminal court in its juridical process or illegality of sentence or order. In the present case, two Courts below have misconstrued, mis- interpreted Public Analyst report Ex.PW-1/A, panchnama Ex.PW-1/C, statements of PW-1 K.S.Verma, retd. Food Inspector, PW-2 Ram Lal and PW-4 Kuldeep Singh in returning the finding that milk was stirred and made homogeneous before taking sample, hence conviction and sentence imposed by the two Courts below are not sustainable. The impugned judgment is liable to be set-aside. 13. No other point was urged. 14. The result of above discussion, the revision is allowed, the judgment dated 9.4.2002 passed by the learned Sessions Judge, Hamirpur in Criminal Appeal No. 23 of 1999 affirming the judgment dated 29.10.1999 passed by the learned Chief Judicial Magistrate, Hamirpur in P.F.A. Act case No. 2-III of 1994 convicting and sentencing the petitioner under Section 16(1)(a)(i) read with Section 7 of the Prevention of Food Adulteration Act,1954 is set-aside, the petitioner is acquitted of the accusation, fine amount if deposited be refunded to petitioner, his bail bonds are discharged. April 6, 2009. ( Kuldip Singh ), (GR) Judge.