CR.RA/68/1995 1/9 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL REVISION APPLICATION No. 68 of 1995 For Approval and Signature: HONOURABLE MR.JUSTICE A.L.DAVE ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ========================================================= BABUBHAI MAKANBHAI NAYKA - Applicant Versus STATE OF GUJARAT & 1 - Respondents ========================================================= Appearance : MR RD BHATT for DR BHATT for Applicant. MR UR BHATT, ADDL.PUBLIC PROSECUTOR for Respondent: 1-State, MR MB PARIKH for MR MC SHAH for Respondent : 2, ========================================================= CORAM : HONOURABLE MR.JUSTICE A.L.DAVE Date : 02/12/2008 ORAL JUDGMENT 1. This Revision Application arises out of the judgment and order rendered by the learned Additional CR.RA/68/1995 2/9 JUDGMENT Sessions Judge, Valsad at Navsari, in Criminal Appeal No.8/89, on 20.2.1995. The said appeal was preferred against the judgment and order rendered by the learned Judicial Magistrate, First Class, Navsari, on 26.12.1988, in Criminal Case No.1489/1984. 1.1 The revisionist was charged with an offence punishable under Section 16 of the Prevention of Food Adulteration Act, 1954 [“the Act” for short] and came to be convicted therefor. He was sentenced to undergo S.I for six months and to pay a fine of Rs.1000/-, in default, to undergo further S.I for two months. 2. According to the prosecution case, Food Inspector, Navsari took sample of buffalo milk from the revisionist, which was meant for sale, sent it to the Public Analyst and it was found that the milk contained lesser degree of Fat percentage than the minimum prescribed under the Prevention of Food Adulteration Rules, 1955. He, therefore, came to be prosecuted therefor, after obtaining the necessary sanction. On the basis of the evidence led by the prosecution, the trial Court came to the conclusion CR.RA/68/1995 3/9 JUDGMENT that the charge was proved against the revisionist and, therefore, recorded the conviction. 2.1 The judgment of the trial Court was challenged before the Sessions Court, Valsad at Navsari by preferring Criminal Appeal No.8/89, and the Sessions Court dismissed the appeal, confirming the judgment of the trial Court. Hence, this revision application. 3. This Court has heard the learned counsel for the parties, and also examined the record and proceedings. 4. The question that is raised before this Court by learned advocate Mr.Bhatt for the revisionist, is whether, the trial Court could have recorded conviction for insufficient fat percentage in the sample of milk, when it is not proved to be buffalo milk and when different standards are prescribed under the Rules for buffalo milk, cow milk and goat milk. The point, which is raised by the revisionist, is that the trial Court has proceeded on the CR.RA/68/1995 4/9 JUDGMENT presumption that the milk was buffalo milk; whereas there is not even an iota of evidence in the case that it was buffalo milk. What emerges from the record is that it was milk. The Food Inspector, who took the sample, did not inquire as to whether it was buffalo milk or cow milk or goat milk. It is nowhere inquired or investigated as to what type of milk it was and the complaint is lodged on a premise that it was buffalo milk. This point was raised before the trial Court and the trial Court has turned it down saying that it can be legally presumed that it was buffalo milk. 4.1 The second contention is that admittedly the stainless steel container, in which the sample was taken, was cleaned by the assistant/peon accompanying the Food Inspector. That assistant/peon has not been examined and, therefore, there is no positive evidence of compliance of Rule-14 of the Rules. 4.2 It was then contended that the Food Inspector, in his deposition, has accepted that the Public Analyst's report is not suggestive of any CR.RA/68/1995 5/9 JUDGMENT adulteration in the milk and, therefore, the Proviso to Section 2(ia) clause (m) would come into play, which aspect has not been considered by the Courts below. 4.3 It was also contended that freezing test is not shown to have been undertaken, which could have suggested addition of water to the milk and in absence of such evidence, the Courts below erred in convicting the revisionist only on account of deficit of fat contents in milk. Learned advocate Mr.Bhatt, therefore, submitted that the revision application may be allowed. 5. Learned A.P.P. Mr.U.R.Bhatt appearing for the State and learned advocate Mr.M.B.Parikh appearing on behalf of learned counsel Mr.M.C.Shah for Navsari Municipality, have opposed this revision application. It is pointed out that there is a legal presumption available under Item No.11.01.11 of Appendix `B' to the Prevention of Food Adulteration Rules, 1955 as per the note below the said Item. Therefore, no error can be said to have been committed by the Courts CR.RA/68/1995 6/9 JUDGMENT below. On non-examination of the assistant/peon, it was submitted that the cleaning was done under the supervision of the Food Inspector and, therefore, presumption may be drawn accordingly and the revision may, therefore, be dismissed. 6. Having regard to the contentions raised before this court, it may be noted that by virtue of foot- note below Item 11.01.11 to Appendix `B' of the Prevention of Food Adulteration Rules,1955, the standards prescribed for buffalo milk shall apply to milk which is offered for sale without indication of the class. Under the circumstances, when there is positive evidence that the milk, which was meant for sale by the revisionist, was not classified as belonging to a particular class, the standards prescribed for buffalo milk would be applicable. The Courts below, therefore, were justified in not accepting the contention raised before it by the revisionist. 7. However, the fact remains that the Food Inspector initially states that the stainless steel CR.RA/68/1995 7/9 JUDGMENT container was cleaned before taking the sample and in cross-examination, he admits that the cleaning was done by his peon. That peon has not been examined and, therefore, there is no primary evidence to show that the container was properly cleaned. Under such a situation, the benefit has to be given to the accused-revisionist for want of evidence about compliance of Rule-14. (See State of Gujarat v. Punabhai Ramabhai Machhi, 2005 Cri.L.J. 3631). 8. Another point that requires serious consideration is that the Public Analyst's report only speaks of the lesser standard than the minimum prescribed under the law. There is no evidence worth the name to show that this was result of some adulteration, addition or otherwise, at the hands of the accused-revisionist. The Proviso to clause (m)of sub-section (ia) of Section 2 of the Prevention of Food Adulteration Act provides that, where the quality or purity of the article, being primary food, has fallen below the prescribed standards or its constituents are present in quantities not within the prescribed limits of variability in either case, CR.RA/68/1995 8/9 JUDGMENT solely due to natural causes and beyond the control of human agency, then, such article shall not be deemed to be adulterated within the meaning of this sub-clause. 8.1 The position that emerges is that there is no evidence to show any addition or adulteration to the milk and in absence of said positive evidence, this Court cannot conclude that fall in purity standard was not because of natural causes or causes beyond the control of human agency. When there is no evidence to show any addition or adulteration by human agency, be it accused/revisionist or otherwise, the possibility of fall in quality standard cannot be ruled out. Such a conclusion, if it is not possible to be arrived at, the benefit has to go to the accused. This aspect has been overlooked by the Courts below. The benefit, therefore, must go to the accused-revisionist. 8. The conviction as is recorded by the trial Court and upheld by the appellate Court cannot be sustained here and deserves to be upset for the foregoing CR.RA/68/1995 9/9 JUDGMENT reasons, and other contentions are not now required to be gone into. 10. This Revision Application is, therefore, allowed. The judgment and order rendered by the learned Additional Sessions Judge, Valsad at Navsari, in Criminal Appeal No.8/89, on 20.2.1995 and the judgment and order passed by the learned Judicial Magistrate, First Class, Navasari, in Criminal Case No. 1489/1984, on 26.12.1988 are hereby set aside. The accused-revisionist is on bail and, therefore, his bail bond shall stand cancelled. Fine, if paid, shall be refunded to the revisionist. [A.L.Dave,J.] (patel)