Swaminath Singh v. State of U. P — 1981 DIGILAW 467 (ALL)

JUDGMENT R.B. Lal, J. - Swaminath Singh has filed this revision against his conviction for an offence under section 7(l)/16(l)(a)(I) of the Prevention of Food Adulteration Act (briefly the Act) and sentence of rigorous imprisonment for six months and a fine of Rs. 1000/-. 2. On 3rd August 1977 at about 3.20 P.M. Food Inspector Sri M.S. Som visited the shop of the applicant and found milk in a Bhagauna. The Food Inspector purchased a sample of this milk for analysis and complied with the relevant rules. One part of the sample was sent to the Public Analyst, who reported that the sample of milk was deficient by 42% in fat and by 32% in non-fatty solids. 3. In the beginning the applicant denied the prosecution story in full. Later on he took-up the stand that he was running a tea stall and the milk was skimmed milk and this fact was conveyed to the Food Inspector. At that stage even, the applicant said that he was not paid the price of the sample milk and it was not put in phials in his presence. He examined two witnesses in defence. 4. The magistrate did not accept the defence case. He found the prosecution case fully established and, therefore, convicted and sentenced the applicant as stated earlier. An appeal to the Sessions Judge, Rampur, was also unsuccessful. Hence this revision. 5. The first point urged by the learned counsel for the convict-applicant is that the milk was skimmed milk and this information was conveyed to the Food Inspector when he took the sample. The stand of the prosecution was that the applicant had not given out that the milk was of any particular animal or of any particular description. He had maintained silence on these points. The trial court accepted this case of the prosecution and held that the story set up by the accused was an after thought. This finding was not upset by the lower appellate court as well. Thus, it is a finding of fact recorded by the courts below which cannot be interfered with in revision, unless shown to be perverse. There is no perversity in this conclusion of the courts below. The Food Inspector M.S. Som (P.W. 1) and Bhagwat Saran, Peon (P.W.3) both said that the accused had not given any special description of the milk. There is no perversity in this conclusion of the courts below. The Food Inspector M.S. Som (P.W. 1) and Bhagwat Saran, Peon (P.W.3) both said that the accused had not given any special description of the milk. They denied the defence suggestion that the accused had given out that the milk was skimmed milk Ram Bharosey a public witness who was present at the shop at the time of the taking the sample, was also taken as a witness by the Food Inspector. This witness was examined by the accused as a defence witness. This witness said that at the time of taking the sample the accused had informed the Food Inspector that the milk was separata' milk. The witness admitted that he was known to the accused since before. The trial court rightly refused to prefer the statement of this witness to that of P.Ws. 1 and 3. The Public Analyst found that the sample milk contained 3.5% fat and 6.1% solids non-fat. According to the prescribed standard, skimmed milk should not have fat in excess of 0.5% and should have non-fatty solids 8.7% minimum. Had the milk of which sample was taken, been skimmed milk, its fat content would not have been as high as 3.5%. Hence the applicants contention that he had informed the Food Inspector that the milk was skimmed milk was rightly rejected. 6. The learned counsel for the applicant made a submission connected with the first submission; he contended that since there was no charge regarding skimmed milk the whole trial was vitiated. The applicant was greatly prejudiced on account of non-framing of a proper charge. In this connection, the learned counsel has referred to the decisions Khedu v. State. 1971 Allahabad Weekly Reporter 370; Bhim Sen v. State of Punjab, 1975 (II) FAC 242, and Ajodhiya Prasad v. State, 1977 (II) FAC 26. 7. In view of the finding that the accused had not represented to the Food Inspector that the milk was skimmed milk, the above-mentioned connected contention of the learned counsel loses force. 8. A word may be said about the aforesaid three decisions cited by the learned counsel. In Khedu's case the sample milk met the standard prescribed for cows milk but it was found slightly deficient by the standard of she-buffalo milk. The stand of the accused was that the milk was cows milk. 8. A word may be said about the aforesaid three decisions cited by the learned counsel. In Khedu's case the sample milk met the standard prescribed for cows milk but it was found slightly deficient by the standard of she-buffalo milk. The stand of the accused was that the milk was cows milk. In these circumstances it was held that no offence was committed by the accused. In Bhim Sen's case the charge was with regard to aerated water and not with regard to sweetened aerated water. The sample met the standard prescribed for aerated water. There was a different standard for sweetened aerated date F. In these circumstances, their Lordships of the Supreme Court said that the sample could not be condemned as adulterated. In Ajodhiya Prasads case the general principle that the charge framed against an accused must be specific enough so as to give proper notice of the case to be met, was emphasised. The charge framed by the magistrate in that case was not set out in the decision but it appears that in the charge simply this much was said that the article of food namely mustard oil was adulterated. Further details were not given and in this context it was said that the charge was not properly framed and had caused prejudice to the accused. In the instant case, the deficiency in the contents of the sample milk was set out in the charge clearly. 9. The next contention of the learned counsel for the applicant is that the sanction by the Chief Medical Officer was not legal. It has been contended that the Food Inspector sent a letter dated 28th February 1978, Ex. Ka-5 to the Chief Medical Officer, Rampur requesting for accord of sanction under section 20 of the Act. In that letter the milk was described as Milawati Doodh Adhoshit'. In the complaint dated 15-4-78, Ex. Ka-7 the Food Inspector described the article of food as "Milawati Doodh Adhoshit" "misbranded". The contention of the learned counsel for the applicant is that the Food Inspector treated the milk as misbranded and not as adulterated. The Chief Medical Officer had accorded sanction for prosecution under section 7/16(D(iii) of the Act. The charge framed by the magistrate was not with regard to misbranded or adulterated milk and, therefore, the charge was illegal on this score. 10. The Chief Medical Officer had accorded sanction for prosecution under section 7/16(D(iii) of the Act. The charge framed by the magistrate was not with regard to misbranded or adulterated milk and, therefore, the charge was illegal on this score. 10. I have given careful consideration to the above submissions of the learned counsel and, in my opinion, both the submissions have no substance. In the letter Ex. Ka-5 the article of food was described as Milawati Doodh Adhoshit and it was further said that an offence under section 7(i)(iii) punishable under section 16 of the Act had been committed by the applicant. In the complaint this was said and the only addition was of the word misbranded However, it is note-worthy that in the letter and the complaint it was clearly mentioned that the sample milk was deficient in fat content by 42% and in non-fatty solids content by 32% according to the prescribed standard. The Public Analyst adopted the standard for buffalos milk for analysis, as it was not declared that the milk was of a particular animal. Judged by this standard, the sample disclosed the above-mentioned deficiency. The statement of P.W. 2 shows that papers Exs. Ka-1 to Ka-4 were sent with the letter Ex. Ka-5 to the Chief Medical Officer, Rampur. Ex. Ka-4 was the report of the Public Analyst. Rest were the papers prepared at the time of taking the sample. On a consideration of all these documents, the Chief Medical Officer accorded sanction Ex. Ka-6. There is nothing in the sanction to indicate that the sanction was granted with regard to an article of food which was misbranded and not adulterated. Since the sanction was given on a perusal of the papers it shall be taken that the sanction was with regard to the deficiency in the contents of the milk which brought the sample within the definition of adulterated. The addition of word misbranded in the complaint would not, in these circumstances, render the sanction invalid. 11. In the charge the magistrate did not use the word adulterated. The addition of word misbranded in the complaint would not, in these circumstances, render the sanction invalid. 11. In the charge the magistrate did not use the word adulterated. He mentioned that the sample which was taken from the accused was analysed by the Public Analyst, Lucknow, and was found deficient in fat content by about 42% and in non-fatty solids content by about 32% and thus, the accused had committed the breach under section 7 of the Act punishable under section 16 of the Act. This kind of charge was legally correct and met with the requirements of sections 211 and 212 of Cr. P.C. There was no omission or vagueness in the charge. The contents of the charge were sufficient to put the accused on notice of the offence which he was supposed to have committed. Hence, there was no question of any prejudice to the accused in his defence or failure of justice. 12. No other submission has been made by the learned counsel for the applicant. 13. The conviction of the applicant does not suffer from legal defect. 14. The revision application has no merit and is dismissed. The applicant shall surrender in the trial court to serve out the sentence according to law. He shall also pay the fine, if not already paid.