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2000 DIGILAW 340 (KER)

Babu v. Food Inspector

2000-07-03

D.SREEDEVI

body2000
ORDER D. Sreedevi, J. 1. The above revision is directed against the judgment in Crl. A. No. 1/1992 of V Additional Sessions Judge, Ernakulam, which was filed against the judgment in S. T. No. 2366/1989 of the Judicial I Class Magistrate, N. Paravur. The petitioner is the first accused in S. T. No. 2366/1989. The first respondent Food Inspector filed a complaint against the petitioner and another for offences punishable under S. 2(ia)(m) and 7(i) read with S.16(1)(a)(i) of the Prevention of Food Adulteration Act, 1954, hereinafter referred to as "the Act". The trial court found the petitioner guilty of the offences charged against him and convicted and sentenced to undergo simple imprisonment for six months and to pay a fine of Rs.1,000/- and in default, to undergo simple imprisonment for one month more. On finding that the second accused was hot guilty, he was acquitted. On appeal by the petitioner, the appellate court confirmed the said conviction and sentence. Hence this revision. 2. The complainant's case is that at about 1.50 p.m. on 28-8-1989 he saw the first accused carrying milk belonging to the 2nd accused in an aluminium Can, fitted on the carrier of a cycle. After complying with the formalities, he purchased 750 ml. of milk from the first accused and sampled it according to law. The first accused told him that he received milk from Prince Dairy, run by the 2nd accused, for sale on commission basis. After analysing a part of the sample, the Public Analyst reported that the sample is adulterated. Hence the complainant launched prosecution against the accused persons. 3. After the filing of the complaint, the first accused filed a petition for analysing the second part of the sample and the court allowed the said petition and directed the Local (Health) Authority to produce the second part of the sample. Consequently, the Local (Health) Authority produced the second part of the sample and the same was forwarded to the Central Food Laboratory for analysis. After analysis, it was reported that the sample does not conform to the standards prescribed for cow's milk. As the accused pleaded not guilty, the prosecution examined four witnesses and marked 12 documents. The court below raised six points and held that the first accused sold 750 ml. After analysis, it was reported that the sample does not conform to the standards prescribed for cow's milk. As the accused pleaded not guilty, the prosecution examined four witnesses and marked 12 documents. The court below raised six points and held that the first accused sold 750 ml. of cow's milk to the Food Inspector; that the Food Inspector has complied with the formalities for sampling of the milk; that the milk involved in this case was adulterated as per the definition of S.2(ia)(m) and 7(i) read with S. 16(1)(a)(i) of the Act and he is convicted thereunder. He was sentenced to undergo simple imprisonment for six months and to pay a fine of Rs. 1,000/- and in default to undergo simple imprisonment for one month. The second accused was acquitted by the court below in the absence of any evidence to connect him. Aggrieved by the conviction and sentence passed by the trial court, the revision petitioner filed Crl. A. No. 1/ 1992 before the appellate court. The appellate court confirmed the conviction and sentence and dismissed the appeal. Hence this revision. 4. The learned counsel for the petitioner Mr. P. S. Santhosh challenged the conviction and sentence on various grounds. According to him, the Courts below believed the testimony of interested witnesses and also the Food Inspector and discarded the evidence of DWs 1 and 2. It is also submitted by the revision petitioner that the milk in question was not meant for sale and hence the courts below ought to have found that the taking of sample is illegal. He has also challenged the sampling done by the Food Inspector. 5. Heard both sides. 6. Admittedly 750 ml. of cow's milk was purchased by the Food Inspector from the revision petitioner on 28-8-1989 at about 1.50 p.m. Ext. P8 is the certificate of the Director of the Central Food Laboratory. This would go to show that the percentage of milk fat in the sample was 3.3 and that of milk solids not fat was 7, where the standard fixed in Appendix B to R.5 of he Prevention of Food Adulteration Rules, hereinafter referred to as "the Rules", in the cow's milk should contain a minimum of 3.5% of milk fat and 8.5% of milk solids not fat content. The sample is, therefore, adulterated within the meaning of S.2(ia)(m) of the Act. 7. The sample is, therefore, adulterated within the meaning of S.2(ia)(m) of the Act. 7. The learned counsel appearing for the revision petitioner submitted that the sampling done by the Food Inspector is not proper and is not in accordance with S.11 of the Act. R.14 of the Rules 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 shall be closed sufficiently, tight to prevent leakage, evaporation, or in the case of dry substance, entrance of moisture and shall be carefully sealed. R.15 provides for labelling and addressing the bottles. R.26 provides for packing and sealing the samples. R.20 enables the Food Inspector to add prescribed preservative to the sample. R.22 prescribes quantity necessary for analysis. S.11 prescribes the procedure to be followed by the Food Inspector. While dealing with an identical question, the Supreme Court in Food Inspector, Municipal Corporation, Baroda v. Madanlal Ramlal Sharma and another, (1983 FAJ 160), held as follows: "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 such 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. Common sense dictates that articles of food like milk and curd when churned with hand would properly mix up from top to bottom," A Full Bench of the Supreme Court in the decision reported in K. Harikumar v. Food Inspector, (1995 SCC (Cri) 933), held that stirring and churning of curds before taking sample is necessary and, if possible, curds must be given a vertical cut. The court held as follows: "In order to attain homogeneity in curds stirring and churning, as the case may be, becomes necessary for the ingredients of milk sold non fat and milk sold fat getting a uniform consistency in order To determine the percentage in their completeness". In that case, while purchasing samples, the Food Inspector has not mentioned that the curds were stirred and churned before the sample was taken or that it was given a vertical cut and was possible to do so be it at the behest of the appellant or that of the Food Inspector., 8. There is nothing in this case to show that the Food Inspector has made the milk homogeneous before taking the sample. There is also nothing to show that there was any churning. Therefore, the Food Inspector committed an error in sampling the milk. The finding entered on point No.2 by the court below is, therefore, not correct. Regarding point No.1, I accept the finding of the court below as there was evidence to show that the first accused sold milk to the Food Inspector. The chemical analysis report cannot be accepted as correct so far as the sample of milk involved in this case. The court below acquitted the second accused as the Food Inspector could not adduce any evidence to show that the first accused has received milk from the Dairy of the second accused. Therefore, that finding is upheld. In view of my finding on Point No.2, the first accused cannot be found guilty of the offence charged against him. In the result, this Criminal Revision Petition is allowed and the judgments under challenge are set aside. The revision petitioner first accused is acquitted. Release the revision petitioner first accused forthwith, if not required for any other case. The bail bond is cancelled.