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FOOD INSPECTOR, MUNICIPAL CORPORATION,

BARODA

MADANLAL RAMLAL SHARMA AND ANOTHER.

December 14, 1982

(D.A. DESAI AND R.~. t, flSRA, JJ.].

Prevent/on of Food Adultlralion Act, 1954-Pr~Paratin of sample for anoly1is-Milk and Milk preparations including curd-Churning by hand makes

sample homogeneous and representa'tiv~Law does not 'rtQuire ChuMing by any instrument.

The re-spondfut was convicted and seOtCDced rOr an offence under the Prevention of Food Adulteration Act, 1954 oil l! complaint that a sample of curd purchased from his shop had been found not to confotm to the standard prescribed. He preferred an appeal and the Sessions Judge acquitted him on the short ground that the sa:mple was not hoaiogeneous and representative of the Curd purchased as the curd had not been churned properly before i.t 'w8s sent for analysis. The High Court affirmed this conclusioD. and dismissed the 3ppeats filed against the order of acquittal.

The High Court, in preference to the evidence of the complainant that the churning of the sample had h"!t done with a spoon, placed reliance .on the evidence led by the defence that the churning had not been done by .any instrument but it had been done by the complainant wi.th his hand. The High Court stated that since the prosecution had not challenged the defence version that be churning of the SOfllple had been done by means of hand alone, it had failed to prove that the churning bad beeil done ioa t)roilCr manner. ·· · '

Declining to interfdro with the acquittal of the respondent by !he two

lower couris after a li!p!e Of lix years and dismissing the appeal,

HELD : In milk and milk preparations including curd, it is distinctly possiblejhat the fat settles .. on the top and in.orde.r to find out whether the milk G ot its pi'eparation such as curd has prescrihed' content, the Sim.pie must be homogeneous and representative so that:the analysis c:an furnish reliable proof of

nature and content of the article of food 4lDder analY.is. For this purpdse . churn, ing is one of the methods of makil)g th<; sample omoseneous and repre .. ntative. But, there is nothing in the Act w tho Rules which .prescribes tbat H churning must be done by some instrument and that churning done. by hand would not provide a homogeneous and representatives 'sample. Commonsense dictates that articles of food like milk and curd when churned with hand would

SUPIBMB COUIT HPOITS

(1983) 2 s.c.a.

A properly mi•UP from top to bottom. More so when the quantity is either 600 grams which was the quantity purchased or 2·1/2 kg. which was the quantity io the container. (14 C-EJ

In the instant case, there was evidence that the churning was done by spoon. But even if the High Court found that evidence unreliable and the evidence of defence witness so much reliable that it was prepared 10 act upon it disagreeing with the other evidence, the evidence of defence witness was that churning was done with band, and be did no_t SI)' that . the churning was not effective. It is therefore difficult to subscribe to the view or the High Court that the churning done by hand would nt meet with the requirements of making a sample homogeneous and representative.

There has to be a finding that the churning done with band was not_ adequate. There is no such finding.

The Hish Court was, tbertforC, .dot jUstifted i~ coD&i"Ot!oS tc acquittal on this ground. [14 FH; 1$ A]

CRIMINAL APPBLLATB JURISDICflON : Criminal Appeal No. 605 of 1981.

Appeal by special leave from the Judgment and Order dated the 8th April, 1980 of the Ahmedabad High Court in Criminal Appeal No. 218 of 1978 with Crl. Appeal No .. 603 of 1978.

M.C. Bhandtire, T. Sridharall, Mr8. S. Bhandare and Mi8s C.K.

Sauhantia for the Appellant.

Miss Maya Rao for Respondent No. 1.

J.L. Jain and R.N.- Poddar for Respondent No. 2.

The Judgment of the Court wa1 delivered by

. ' ·. . .

MISRA, J. lo this appeal by special leave the narrow questiou that this Court proposes to examine is whether the-High Court was right . in holding that churning of the curd of which a sample was taken, if done with hand, was done in a proper mao11cr so as to make the sample homogeneous and representative.

The few relevant facts arc that Shri G. A. Parikh Food Inspector attached to Baroda MuniCipaJ Corporation visited the shop of the respondent No. I accused Madaolal Ramlal Sharma on September 4, 1976 around 7.20 a.m.

He purchased curd from a container having 2 I /2 Kg of ctJrd for the purpose of analysis.

There was 'a bo_ard hanging on the outer side of the c<; miaioer that

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'FooD INSPECTOR v. MADAN LAL (Misra, J.) II

the curd is prepared from cow's milk.

The Food Inspector purchased 600 grams of curd and after churning the curd, he divided it in three equal parts and prepared three separate samples, each kept in a separate bottle.

After various formalities including obtaining the sanction for prosecuting the respondent-accused, a complaint was filed in the Court of the learned Judicial Magistrate, First Class (Municipality) at Baroda. In the course of trial at the request of the accused the third sample was sent to the Central Food Laboratory for analysis and report. It may also be mentioned that the Food Inspector himself had sent one sample to the public analyst attached to the laboratory set up by the Municipal Corporation, for analysis of article of food. The report of thb public analyst shows that the sample of curd contained 3 % milk fat and 1 J.7% milk solid non.fat.

On the other hand, the report of the Central Food Laboratory, Calcutta (Ex. 15) shows that milk fat was 2.9% and milk solid non-fat 10.8%. .It was opined that the sample of curd was adulterated.

The learned Magistrate held that the curd in question was prepared out of cow's milk, that it did not conform to the prescribed standard and reached the conclusion that the prosecution case was established beyond a shadow of reasonable doubt. Consequently, the learned Magistrate convicted the first respondent-accused for an offence under section 7 (I) read with section 16 (l)(a)(I) of the Prevention of Food Adulteration Act,

1954 and sentenced him to suffer rigorous imprisonlllent for four

/ months and to pay fine of Rs. 500 in default to suffer further rigorous imprisonment for two months.

The first respondent-accused preferred Criminal Appeal No. 46 Of 1977 in the Court of Sessions at Baroda.

The learned Additional Sessions Judge who beard the appeal, int~ alia, held that proper churning of the sample having not been done, the sample cannot be said to be homogeneous and representative of the curd in question so as to arrive at a proper conclusion on analysis of the sample and on the short ground acquitted .tbe accused.

Two appeals were preferre.d against the judgn1ent of the learned Sessions Judge. Criminal Appea1 N'o. 218 of 1978 was prefered by the State of Gujarat and Criminal Appeal No. 60'3 of 1978 was preferred by the complainant Food Inspector.

A divisfon Bench of the Gujarat High Court disposed of both the. appeals by a common judgment. The High Court affirmed the

SUPREME colJitt REPORTS

[1983] S.C.R.

A acquittal observing that 'the conclusion is inescapable that the prosecution has failed to prove that tbe churning was done in a proper manner so as to make the entire curd one and all the samples would be identical in themselves.' Hence this appeal by special leave by the complainant Food Inspector.

The sample of curd was taken on September 4, 1976.

Six years have passed and two courts have concurred in acquitting the accused, namely, the Sessions Judge and the High Court.

We are, therefore, reluctant to interfere with the order of acquittal.

But the learned couusel Mr. M. C. Bhandare for the appellant, Food Inspector and the learned connsel Mr. Naio appearing for the State of Gujarat second respondent supporting the appellant, urged that irregularity in churning the curd before sampiing the same in bottles, as found by the High Court, if allowed to remain unquestioned, it would have an adverse effect on a large number of pending cases.

We are, therefore,. only inclined to examine the legal submission and we may make it absolutely clear that we are disinclined to interfere after six years in what is found to be marginal adulteration by the learned Magistrate so as to send the respondent to jail, though we must make it abundantly clear that we do not look upon with equanimity on offences under the Prevention of Food Adulteration Act because these offences have the deleterious effect playing havoc with the health and well-being of a large segment of the Society. But the acquittal by two courts and delay of six years and coupled with the finding that there was marginal adulteration would certainly be a disincentive to interfere with the Order.

It is indisputable that curd is an article of food.

Rule 22 of the Prevention of Food Adulteration.Rules, 1955 (Rules for short) provides that in the case of curd, a quantity of 200 grams bas to be sent to the public analyst/Director of Central Food Laboratory for analysis.

The Standard for cow's milk for Gujarat as prescribed under the Rules is that it must contain 3.5% milk fat and 8.5% milk solids non-fat. Further provision is that the curd obtained from any kind of milk shall have the same content as the milk fat andmi!k solids non-fat as the milk from which it is prepared. Section 13 (3) of the Act, provides that the certificate issued by the Director of Central Food Laboratory under Section 2-B shall supersede the report given by the public analyst under

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 _sub•section (I}. The report of Central Food Labqtatoty shows that the sample contained 2.9% of milk fat. Therefore, the conclusion that the sample of curd was adulterated is unquestionable.

The learned Sessions Judge found that after purchasing the curd in order to make the sample homogeneous and representativei churning was not done as required and therefore the sample was not both homogeneous and representative and therefore the accused could not be said to have sold or stored for sale adulterated curd.

While affirming this conclusion the High Court has observed that the evidence of Ex. 49 Devsibhai Ramjibhai, a defence witness and the statement of the accused recorded under section 248 (2) Cr.P.C. would show that the churning was not done by an instrument but the complainant bad done it with his band and thereafter curd was divided into three parts, and three sample bottles were filled. The High Court then observed that on this point Devsibbai Ramjibhai bad not been cross examined. The High Court while proceeding to appreciate the evidence of Dcvsibhai Ramjibbai accepted it_in preference .lo the other eviden.ce of the. complainant who had stated that the churning was done with a spoon. Then comes.the observation of the High Court which clinches the matter. It reads as under:

."But fortunately for the prosecution when the spoon aspect becomes doubtful, and when the defence version clearly found by us on record is that the allegation is that the churning was done by means of hand alone, it was quite necessary for the prosecution to challenge this ' version 'of the def enc~ which has been given by the defence witness on oath. In the absence of that, unfortunately, we have come to the conclusion that the prosecution bas failed to prove that the churning. was done in a proper manner so as fo make the entire curd one and all the samples would be identical in themselves."

The High Court held that on this short ground alone the acquittal must be affirmed. With respect, we find it very difficult to subs_cribe to the view taken by the High Court. Rule 14 provides . that sample of food for the purpose of analysis shall be taken in clean dry bottles or jars or in other suitable containers which shi!ll

14 SUPIU!lft! COURT IU!POlTS • [1983) 2 s.c.tt.

be closed sufficiently, tight to prevent leakage, evaporation, or in the case of dry substance, entrance of moisture and shall be carefully sealed. Rule 15 provides for labelling and addressing the bottles.

Rule 16 provides for packing and sealing the samples.

Rule 20 enables the Food Inspector to add prescribed preservative B to the sample.

Rule 22 prescribes quantity necessary for analysis.

It may be recalled that section 11 prescribes procedure to be followed by Food Inspector,

Our attention was not drawn to any provision in the Act or the Rules making it obligatory that churning should be done with some machine so as to make a sample homogeneous and representative sample. We are conscious of the fact 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 snch 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. For this purpose churning is one of the methods of making the sample homogeneous and representative.

But having said this, there is nothing in the Act or the Rules which prescribes that churning must be done by some instrument, and that churning done by hand would not provide a homogeneous and representative sample.

Commonsense dictates that articles of food like milk and curd when churned with hand would properly mix-up from top to bottom. More so when the quantity is either 600 grams which was the quantity purchased.or 2-1/2 kgs. which was the 9.uantity in the container. There was evidence that the churning was done by spoon. But even if the High Court found that evidence unreliable and evidence of defence witness Devsibhai Ramjibhai so much reliable that it was prepared to act upon it disagreeing with the other evidence, the evidence of Devsibhai Ramjibhal was that churning was done with hand, and he did not say that the churning was not effective. We therefore find it difficult to subscribe to the view of the High Court that the churning is required to be done by some instru ment or that the churning done by hand would not meet with the requirements of making a sample homogeneous and representative.

There has to be a finding that the churning done with hand was not adequate. There is 110 such finding. We are, therefore, of the

opinion that the Hi*h /Conti was not justified in confirming the A acquittal on this ground.

Having made the position in law clear, as we understand. it, we deeline to set a:siile tlit cquitial. Subfect to above observation the appeal is di1miased.

H.L.C • Appeal dismissed.