Criminal Revision No.1808 of 2005 IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Revision No.1808 of 2005 Date of Decision: December 13, 2010 Raghbir Sharma …Petitioner Versus The State of Haryana …Respondent CORAM: HON’BLE MR. JUSTICE A.N. JINDAL Present: Mr. Jagdish Manchanda, Advocate for the petitioner. Mr. J.S. Rattu, Dy. Advocate General, Haryana. **** A.N. Jindal, J. (Oral) Assailed in this petition is the judgment dated 16.09.2005 passed by Addl. Sessions Judge, Kurukshetra against the judgment dated 01/02.03.2004 passed by Sub-Divisional Judicial Magistrate, Pehowa convicting and sentening the accused to undergo rigorous imprisonment for a period of one year and to pay a fine of Rs.2000/- under Section 7 read with Section 16(1)(a)(i) of the Prevention of Food Adulteration Act, 1954 (for brevity the ‘Act’). Factual matrix of the case is that on 27.10.1997 Rajinder Singh, Government Food Inspector, Kurukshetra, inspected the premises of the petitioner known as “Saraswati Misthan Bhandar”, Pehowa run by Raghbir Sharma and found him in possession of 10 kilograms of boiled buffalo milk contained in a Patila for public sale. After serving notice in form VI upon him and stirring the milk in the container, he purchased 750 mls. of the said milk. After stirring and making it homogeneous, he divided the same into three equal -1- Criminal Revision No.1808 of 2005 parts and put in three dryclean bottles. Then sealed parcel along with memorandum in Form No.VII were sent to public analyst, whereas remaining two parts were deposited with local health authority. On the report dated 28.10.1997, it revealed that the sample was adulterated inasmuch as the milk fat was found to be 5% and milk solids not fat were found to be 7.8%. Thereafter, the complaint was filed. The accused also availed the right of re-analysis by getting the same examined through Director, Central Food Laboratory, Pune, who also found the sample to be adulterated inasmuch as milk fat was found to be 4.3% whereas milk solids not fat as 9.2% as against the minimum prescribed standard of 6.0% and 9.0% respectively. After recording the preliminary evidence the accused was summoned. Thereafter, the case was tried as warrant case and was recorded pre charge evidence and then charge under Section 7/16 of the Act was framed against the accused, to which they pleaded not guilty and claimed trial. When examined under Section 313 Cr.P.C. the accused denied the allegations and pleaded their false implication. The trial Court while acquitting Om Parkash, convicted the petitioner and sentenced him accordingly. The appeal preferred by him was also dismissed. The learned counsel for the petitioner has contended that there is big variation in the two reports which indicates that the milk was not properly stirred as such the benefit should be extended to the petitioner. It was further urged that the sample was taken from the sweet shop. The milk from which the sample was taken was not meant for sale. Since boiled buffalo milk in itself is a food, therefore, there is a bar under Section 10(2) of Act in taking the sample of any article of food being a primary food. To the contrary Mr. J.S. Rattu, Dy. Advocate General, Haryana has urged that the sample was meant for sale and there is no bar to take the sample and the milk was stirred and made -2- Criminal Revision No.1808 of 2005 homogenous before taking the sample. Having heard the rival contentions, no merit could be found in the arguments advanced by the counsel for the petitioner. The record reveals that there is a definite evidence that the sample was duly stirred and made homogenous before pouring the same into bottles. It was not essentially required to state in the examination in chief and that was not sufficient to hold that the sample was not properly stirred. Actually, Rajinder Singh PW-1 in his cross-examination has categorically stated that the milk was made homogenous with the milk measure of ‘1 kilogram’. There is categoric recital in the complaint that the milk was duly stirred and mixed and made uniform before taking the sample. Dr. S.K. Nagpal PW-3 has also categorically stated that it was duly stirred and made homogeneous before taking the sample. As regards the minor discrepancies between the statements of Dr. S.K. Nagpal PW-3 and Rajinder Singh PW-1, it may be observed that minor discrepancies are bound to occur in the statements of truthful witnesses. The said discrepancies as pointed out by the counsel for the petitioner do not go to the root of the case. The witnesses have clearly deposed that the milk was duly stirred and made homogenous before taking of the sample. As regards, the argument regarding the mixing of the sample clockwise or anti clockwise, it may be observed that there is no such rule prescribing such mode for mixing the milk but it is rule of prudence so that the proper report could be received. The quantity of the milk in the Patila was not so much that the sample could not be stirred with the measure. Under these circumstances, this Court concurs with the view taken by the Courts below that the milk was properly stirred and made homogeneous before taking the sample. As regards the two reports i.e. Exhibit-PF given by Public Analyst, Haryana and the Exhibit-PL given by the Director, Central Laboratory, Pune. Both the reports indicate that the sample drawn from the -3- Criminal Revision No.1808 of 2005 petitioner was found not confirmed with the standard prescribed under the Act. The milk fat contents were found to be 4.3% as against the prescribed standard of 6%. The variation in the reports cannot be taken to belie the second report which has superseded the first report. It is settled by now that the report made by Central Food Laboratory supersedes the report made by Public Analyst and on receipt of the report of the Central Food Laboratory, the report made by Public Analyst loses its existence. The Kerala High Court in case Food Inspector Corporation of Cochin, Cochin-II Vs. Hameed, 1983 Kr. LT 901: (1983 Cri LJ NOC 224 KER), after considering practically the entire case law on the point, including the decision in Abdul Hameed Vs. Food Inspector 1969 Ker LR-922, State of Kerala Vs. Vasudevyan Nair, 1974 KR LT 617, State of Kerala Vs. P.K. Chamu, 1975 Ker LT -411 and State of Kerala Vs. K.C. John, 1978 Ker LT-738, observed in para 23 as under: “...it is settled law that report of the Public Analyst superseded by the certificate of the Director which has conclusive effect also. Analysis in the two cases is done by different persons at different laboratories. It would not be surprising if, assuming the best conditions, there is some difference in the results of the two analysis. Even in cases where sampling and analysis is done to the satisfaction of the most exacting standards, there could be variation in the percentage of different components arrived at in the two laboratories. But once the report of the Public Analyst is superseded by the report of the Director Central Food Laboratory, there is no report of the public analyst available in the eyes of law for comparison with the certificate issued by the Director. The Court cannot, therefore, legitimately make such a comparison and conclude that there are divergences and therefrom draw an -4- Criminal Revision No.1808 of 2005 inference that the sampling must have been done improperly. To arrive at such a conclusion would amount to flying in the face of settled position of law and the terms of sub sections (3) and (5) of Section 13 of the Act.” The aforesaid observation were later on considered by A Full Bench of Kerala High Court in case Mathukutty Vs. State of Kerala and another, AIR 1988 Kerala-60, wherein, they observed as under:- “We hold that the above is the correct position of law. The divergences in the report and the certificate cannot be used to contend that the number of insects or the percentage of insect damaged seeds have increased during the interval between the analysis by the public analyst and the Director. Hence, we cannot draw an inference that on the date of sampling, number of insects or percentage of insect damaged seeds would have been much less than what is shown in the report or the certificate.” Thus, in the light of the aforesaid decision, no importance could be attached to the report of the public analyst when the report of the Central Food Laboratory has been requisitioned and proved on the record. No rule prescribing the mode of standard. Similar view was taken by the Apex Court in case Food Inspector, Municipal Corporation, Baroda Vs. Madan Lal Ram Sharma, 1982 (2) FAC-372, wherein, it was observed that there is nothing in the Act or Rules, which prescribed that churning of food like milk and curd must be done with some instrument. Further, this High Court in case Gobind Ram Vs. State of Haryana and another 2010(2) FAC-218 observed that it was the duty of the vendor to have stirred the milk and make it homogenous before giving the sample to the Food Inspector. In any case, no undue importance could be given to the stirring and making the milk homogeneous -5- Criminal Revision No.1808 of 2005 before taking the sample, to be sent for analysis. Similar observations were made in State of Punjab Vs. Ramesh Kumar 1992(1) PFA cases (P&H)-120, wherein, it was observed that no undue importance can be given to the non- mention of the fact of stirring in the complaint even while evaluating the evidence of the prosecution on that point. As regards the next argument that the deficiency is marginal one and, therefore, the same could be, because of other reasons, but it cannot be said to be adulterated, it may be observed that the Legislature after long years of experience was well within its wisdom to make the parameters in order to assess the purity of the food articles and if the article is found to be less than the required standard, then even a negligible or a marginal deviation from the prescribed standard would render the same adulterated. It was observed in Municipal Committee, Amritsar vs. Hazara Singh, 1948-1997 SCPFA cases 131 that no law can be laid down holding that minimal deficiencies in the milk components justified acquittal in all food adulteration cases. It was observed by the Full Bench of this High Court in State of Punjab vs. Teja Singh, 1977 FAJ 237 that it is not permissible to add the percentage of various constituents of milk disclosed by the Public Analyst and to deduce a conclusion therefrom about the over-all deficiency or otherwise of the milk. The Court is not entitled to assume a slight or reasonable margin of error in the conclusion recorded by the Public Analyst. Negligible or marginal deviation from the prescribed standard cannot be ignored. Thus, the argument that since the percentage of the milk fat was in excess of the prescribed standard, would be said to be persuasive to take the case out of the term of `adulterated food article'. It may be mentioned that according to the definition of “adulterated” as given in Section 2 of the Act, if the quality or purity of the article falls below the prescribed standards or its constituents are present in -6- Criminal Revision No.1808 of 2005 quantities not within the prescribed limits of variability, the same is “adulterated”. Hence, while deriving the ratio from the observations made by the Full Bench judgment, as referred to above, the milk in question being not in conformity with the prescribed standard can certainly be said to be adulterated. Now, I advert to the other argument that the sample was not meant for sale, it may be observed that no such evidence has been led by the accused which may indicate that he represented to the Food Inspector that the milk was kept by him only for preparing the sweets and it was not for public sale. It is also a matter of common experience that on the sweet shops milk is sold for human consumption along with the sweets. It is not the primary food like cereals it is consumed as such food, Section 2(xii)(a) of the Act provides the definition of primary food, which means any article or food being a produce of agricultural or horticulture in its natural form. It was held in case of Krishan Lal Vs. State of Punjab, 1982 (1) Prevention of Food Adulteration Cases -15 (PB&Hry) that the dairy products cannot be fall within the definition of produce of agriculture or horticulture in its natural form and under these circumstances milk cannot be said to be a primary food. Thus, in that event when the milk cannot be termed as a primary food, there is no bar in taking the sample of such food. The trial Court rightly took note of the judgment in case of New Delhi Municipal Committee Vs. Hardev Singh and others 1980(1) PFA cases- 472 West Delhi, wherein it was observed that there was no bar on the powers of the Food Inspector to lift the sample of Atta stored by restaurant keeper for preparation of Chapati and not for sale as such because the word ‘Food’ includes any article which ordinarily enters into or is used in composition or preparation of human food. As regards the last contention that the accused could be extended benefit of probation, I do not approve the same. There is a specific provision -7- Criminal Revision No.1808 of 2005 with regard to extending of probation in particular cases in which the accused is less than 18 years of age but the accused does not fulfill the condition as provided under the Act, as such no benefit of probation could be extended to him. Even otherwise, the menace of adulteration in the food articles is spoiling the society as a whole. As such, if probation is granted in such cases then it is likely to send a wrong signals to the society. No other argument has been advanced. Resultantly, this petition being devoid of any merit, is dismissed. 13.12.2010 (A.N. JINDAL) vcgarg JUDGE -8- Criminal Revision No.1808 of 2005 IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Revision No.1938 of 2004 Date of Decision: December 07, 2010 Inder Singh …Petitioner Versus State of Haryana …Respondent CORAM: HON’BLE MR. JUSTICE A.N. JINDAL Present: Mr. J.S. Thind, Advocate for the petitioner. Mr. J.S. Rattu, Dy. Advocate General, Haryana. **** A.N. Jindal, J. (Oral) Inder Singh was convicted and sentenced to undergo rigorous imprisonment for a period of three years and to pay a fine of Rs.2500 under Section 409 IPC and further rigorous imprisonment for six months and to pay a fine Rs.2000/- under Section 420 IPC. The appeal preferred by him was also dismissed by learned Addl. Sessions Judge, Sirsa on 27.08.2004. The learned counsel for the petitioner has informed that the petitioner has expired. Even otherwise, having scrutinized the impugned judgment, this Court observed that there is sufficient evidence for holding the accused guilty for the offences for which he has been charged. The testimony of Jai Parkash PW-2 and Sham Lal PW-4 coupled with the admission made by the petitioner himself, duly proved the offence against him. No plausible -9- Criminal Revision No.1808 of 2005 defence has been led. No such argument has been advanced, which may incite this Court to interfere with the concurrent findings returned by the two courts below. No grounds for interference. Dismissed. 07.12.2010 (A.N. JINDAL) vcgarg JUDGE -1 0