Criminal Revision No. 116 of 1994 (O&M) -1- IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH Criminal Revision No. 116 of 1994 (O&M) Date of decision : October 20, 2008 Isham Singh ....Petitioner versus State of Haryana ....Respondent Coram: Hon'ble Mr. Justice Pritam Pal Present : Mr. Arun Sharma, Advocate for Mr. Bansal, Advocate for the petitioner Mr. Ajay Ghangas, DAG, Haryana Pritam Pal,J. (Oral) This revision by Isham Singh petitioner is directed against judgment and order dated 12.11.1992 and 13.11.1992 passed by Chief Judicial Magistrate, Kurukshetra, whereby he was convicted under section 7 read with section 16(1)(a)(i) of Prevention of Food Adulteration Act, 1954 (for short 'the Act') and sentenced to undergo RI for a period of six months and to pay a fine of Rs 1000/- and in default of payment of fine to further undergo simple imprisonment for three months and judgment of the Criminal Revision No. 116 of 1994 (O&M) -2- learned Additional Sessions Judge, Kurukshetra dated 10.2.1994 affirming the aforesaid judgment and order of learned trial Magistrate. In nutshell, the facts culminating to the commencement of this revision may be recapitulated thus:- On 12.8.1986 at about 10.30 AM, Pyare Lal, Food Inspector accompanied by Dr. TR Girdhar and one Sanjiv Kumar intercepted the petitioner and found him having in his possession about 16 kgs of cow's milk contained in a drum for public sale. A notice (Ex. PA) was served upon him and 750 ml. of milk was purchased on payment of Rs 3/- vide receipt Ex. PB. The milk so purchased was converted into three sample bottles and after using preservative, the sample bottles were sealed and and one sealed bottle was sent to the Public Analyst, Haryana, Chandigarh for examination. The Public Analyst, Haryana, Chandigarh gave his report Ex. PF, according to which the sample of milk was declared to be adulterated for the reason that the same was found to have contained milk solids not fat 3.5% deficient of the minimum prescribed standards. Consequently, complaint Ex. PG was instituted before the learned trial Magistrate. After evaluating pre-charge evidence and finding prima-facie case against the petitioner, he was charge-sheeted under section 16(1)(a)(i) read with section 7 of the Act, to which he pleaded not guilty and claimed trial. Ultimately, he was tried, convicted and sentenced, as indicated in the opening part of this judgment. In appeal filed by the petitioner, judgment of conviction and order of sentence passed by the trial Magistrate were also maintained. Criminal Revision No. 116 of 1994 (O&M) -3- This is how feeling aggrieved, he has come up in this revision. Learned counsel for the petitioner has now put forth his two fold arguments. At the first place, he submits that in the case in hand the milk was not properly stirred at the time of taking the samples, which is the main cause for deficiency of solids not fat to the extent of 3.5% in the sample of cow milk. No plausible explanation has been forwarded by the Food Inspector to show as to how only the milk solids not fat were lesser than the prescribed standards, because if any adulterant substance is added, then certainly the milk fat will also come down, but there is no such allegation, as the milk fat found in the sample as 7.3% against the prescribed standards of 3.5% or 4%. So it clearly proves that the milk fat is much more than the prescribed standards, impliedly showing that there is no addition of water or any other thing, as with the adding of water or anything in the milk, the milk fat will naturally come down. In this case, there is no such allegation. The net result is that the sample was not properly stirred and moreover, nothing has been mentioned in the complaint, as to how the milk was stirred by the Food Inspector. In the Form Ex. PA, it is not mentioned that the whole contents of the drum were mixed, made homogenous with a long rod before taking the sample. So for that reason, the sample is not to be considered as adulterated. In support of this argument, reliance has also been placed on State of Punjab vs Mohinder Singh, 1991(3) Recent Criminal Reports (Criminal) 304. Criminal Revision No. 116 of 1994 (O&M) -4- His second point of argument is that in the present case the milk fat as per the report of the Public Analyst is found to be 7.3% as against 3.5% or 4% which is more than the prescribed standard for cow's milk. The only shortfall was that solids not fat was found 8.2% where it ought to have been 8.5%. So, the deficiency is less than .3 which is very negligible and further creates doubt about the taking of sample in a proper manner. Against this, learned State counsel submits that according to the report of the Public Analyst, there is a deficiency of 3.5% in the milk solids not fat so the sample is to be taken below the prescribed standard. I have given my thoughtful consideration to the above submissions put forth on behalf of the parties and have also gone through the aforesaid ruling relied upon by the learned counsel for the petitioner and found merit in the above points raised on behalf of the petitioner. Inasmuch as here in the case in hand, it is an admitted fact that there was no deficiency in the milk fat and deficiency found is only in the milk solids not fat that too is negligible inasmuch as the percentage of milk solids not fat as per Public Analyst report was to the extent of 8.2% whereas as per rules of the Act, the same should have been to the extent of 8.5%. In this regard, it can be safely observed that 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 Criminal Revision No. 116 of 1994 (O&M) -5- 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 effected any adulteration in the milk. In Mohinder Singh's case (supra) also, it was observed 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 properly fed. Under these circumstances, it cannot be said that the courts below have not erred in convicting and sentencing the petitioner. In view of my fore-going discussion, the impugned judgments of conviction and orders of sentence passed by the courts below are un- sustainable in the eyes of law. It appears that the courts below have erred in ignoring the aforesaid aspects of the case which have caused serious prejudice to the rights of the petitioner. In the result, the present petition is allowed. The impugned judgments and orders are set aside and the petitioner is acquitted of the charge framed against him. The fine, if deposited, shall be refunded to him. ( Pritam Pal ) October 20, 2008 Judge 'dalbir'