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2000 DIGILAW 527 (PNJ)

Lal Chand v. State of Haryana

2000-05-16

V.S.AGGARWAL

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JUDGMENT V.S. Aggarwal, J. - The present revision petition has been filed by Lal Chand, hereinafter described as "the petitioner", directed against the judgment and order of sentence dated 12.4.1988 and 15.4.1988 respectively passed by the learned Chief Judicial Magistrate, Narnaul, and of the learned Sessions Judge, Narnaul, dated 8.8.1988. The learned trial Court had held the petitioner guilty of the offence punishable under Section 16(1)(a)(i) read with Section 7 of the Prevention of Food Adulteration Act, 1954 and sentenced the petitioner to undergo rigorous imprisonment for six months and to pay a fine of Rs. 1000/-. In default of payment of fine, he was to undergo rigorous imprisonment for three months. The appeal preferred by the petitioner was dismissed by the learned Sessions Judge, Narnaul. 2. The relevant facts are that on 17.7.1981 the petitioner was intercepted by Piare Lal, Govt. Food Inspector, in the presence of Dr. Ram Pal Singh, Medical Officer. It was 5.30 p.m. and the petitioner was near a place known as Nalapur in Narnaul town. He was carrying 7 Kgs of cows milk. A notice was serviced upon the petitioner by the Govt. Food Inspector showing his intention to take a sample. 660 mls of cows milk was taken as a sample after stirring the same. It was divided into three equal parts. Thereupon, formalin drops in accordance with the rules were added. They were converted into three different bottles which were properly sealed. One sample bottle was despatched to the Public Analyst, Chandigarh, who reported that the sample milk was 5% deficient in milk fat and 6.1% deficient in milk solids not fat. On these broad facts, the complaint as such was filed. 3. The learned Chief Judicial Magistrate relied upon he testimony of Piare Lal, Govt. Food Inspector, and of Dr. Ram Pal Singh and rejected the contention to the petitioner that the milk was only for domestic use. It also rejected the contention that the milk was not properly stirred. With these findings, the impugned judgment and order of sentence were passed by the learned trial Court. In appeal, the findings of the learned trial Court were approved. 4. The short question that arises for consideration is as to whether the milk was stirred and made homogeneous before the sample was taken or not. With these findings, the impugned judgment and order of sentence were passed by the learned trial Court. In appeal, the findings of the learned trial Court were approved. 4. The short question that arises for consideration is as to whether the milk was stirred and made homogeneous before the sample was taken or not. The principle of law cannot be disputed that before such a sample is taken the milk must be homogeneous. This is so because the fats settle on the top in the case of milk. 5. In the present case, in the complaint that has been filed, there is no mention that the milk was made homogeneous and was properly stirred. However, in the statement made by the Food Inspector such fact has been mentioned. 6. This statement is clearly an improvement and should not be allowed to make improvement on the complaint already made. A Division Bench of this Court in the case of The State of Haryana v. Rameshwar, 1987(1) RCR 215, has held as under :- "The law is well settled that before milk sample is taken, which is a liquid, it should be stirred and made homogeneous. The reason for this is that the milk which is liquid, contains various constituents in different forms. Some are very thoroughly mixed up in it but some though, are mixed in it, are lighter and do not have the same specific gravity and weight as the other constituents have. Fat, for example, is one which differs in some ways from the other constituents of the milk. It is lighter in weight and it does not remain mixed up with the remaining liquid for a very long time. If the milk is allowed to stand for some time its fat content rises to the top and accummulates there. If a sample is taken without mixing the milk thoroughly or, in other words, making it homogeneous then the fat being at the top, its contents will not be in the same quantity in the lower portions as those are in the upper part. It is for this reason that the Courts have laid down that before taking the sample it has to be made homogeneous so that the sample remains representative. ".....Necessary facts which constitute an offence have to be mentioned in the complaints. It is for this reason that the Courts have laid down that before taking the sample it has to be made homogeneous so that the sample remains representative. ".....Necessary facts which constitute an offence have to be mentioned in the complaints. If some essential facts or essential requirements which are a pre-requisite before doing an act are not mentioned in a complaint, then the accused in given cases, has the right to say that the prosecution has made an improvement in its case. It is a practice in the States of Punjab and Haryana that the Food Inspectors have got a form of complaint printed. They simply fill in the blanks in accordance with the facts of the cases before filing those in Courts..." "....Almost in every case, which we have come across the mention of the stirring of milk is singularly absent. In many circumstances, as in this case, this fact assumes importance to know whether the Food Inspector has performed his duties appropriately and in accordance with the accepted rules of taking samples. It is very easy for a witness to say a fact at the time of evidence. If this improvement is allowed in every case then a day will come when the Food Inspector will to mention in the complaints how the sample was taken, how and what type of preservative and what quantity of it, was added to the sample. We, therefore, do not feel inclined to grant this latitude to the Food Inspector to make improvements in the case under the Prevention of Food Adulteration Act as it has been done in this case by mentioning only at evidence stage about the stirring of the milk. On evidence, we find that it is a case of deliberate improvement." 7. This decision had been followed by this Court in the case of Labh Singh and others v. State of Haryana, 1997(3) Chandigarh Criminal Cases 106. One finds in respectful agreement with the view. Once the improvement is not allowed to be made in the statement so made, the conclusion is obvious that it cannot be held that the milk was properly stirred before the sample was taken. This would be a fatal lacuna because necessarily there would be deficiency in the contents if the other contents settle on the top. In these circumstances, the impugned judgment cannot stand scrutiny. 8. This would be a fatal lacuna because necessarily there would be deficiency in the contents if the other contents settle on the top. In these circumstances, the impugned judgment cannot stand scrutiny. 8. For these reasons, the revision petition is accepted. The petitioner is acquitted awarding him the benefit of doubt. Revision allowed.