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2003 DIGILAW 1276 (PNJ)

State of Haryana v. Girdhari Lal

2003-09-10

V.M.JAIN

body2003
JUDGMENT V.M. Jain, J. - This appeal has been filed by the State of Haryana, against the acquittal of the accused-respondent for the offence under Section 16(1)(a)(i) of the Prevention of Food Adulteration Act, 1954 (for short the Act), by the Chief Judicial Magistrate, Rohtak, vide judgment dated 9.6.1993. 2. The facts which are relevant for the decision of the present case are that on 10.5.1989 at about 11 a.m. Kali Ram, Govt. Food Inspector accompanied by Jagbir Singh had gone to the shop of the accused situated near District Courts, Rohtak, for taking sample. At that time the accused was found having 7 kgs of cows milk in his possession contained in a Patila meant for public sale and the Food Inspector after disclosing his identity and after serving notice Exhibit PA had purchased 750 ml of cows milk after properly stirring the same, against the payment of Rs. 3.50 vide receipt Exhibit-PB. The sample so purchased was divided into three equal parts and the bottles were properly sealed etc. after putting preservative therein. Spot memo Exhibit-PC was prepared at the spot. Thereafter, one part of the sample was sent to the Public Analyst through registered post along with memo in Form VII vide postal receipt dated 11.5.1989 and the remaining two parts of the sample were deposited in Local Health Authorities, Rohtak. On receipt of the report from the Public Analyst that the sample was adultered on the ground that milk solids not fat were deficient to the extent of 20% of the minimum prescribed standard, a criminal complaint was instituted in the Court and a copy of the report of the Public Analyst was sent to the accused as required under Section 13 of the Act. After the filing of the complaint, the accused had put in appearance and the case was tried as a warrant case. After recording pre-charge evidence, formal charge under Section 16(1)(a)(i) of the Act was framed against him to which charge he pleaded not guilty and claimed to be tried. After the filing of the complaint, the accused had put in appearance and the case was tried as a warrant case. After recording pre-charge evidence, formal charge under Section 16(1)(a)(i) of the Act was framed against him to which charge he pleaded not guilty and claimed to be tried. After recording prosecution evidence, the statement of the accused under Section 313 Criminal Procedure Code was recorded in which he denied the prosecution allegations against him and stated that the milk was not for sale and was meant for tea and coffee and that the Food Inspector had not taken the samples in accordance with the Rules and that no witness was present. 3. After hearing both sides and perusing the record, the learned Chief Judicial Magistrate, vide judgment dated 9.6.1993 acquitted the accused of the charge framed against him. Aggrieved against the same, the State of Haryana filed the present appeal against the acquittal of the accused- respondent in this Court. 4. I have heard the learned counsel for the parties and have gone through the record carefully. 5. The learned Chief Judicial Magistrate while acquitting the accused- respondent of the charge under Section 16(1)(a)(i) of the Act, found that the Food Inspector was not competent to take the sample and to lodge the prosecution against the accused-respondent without any valid notification of the State Government in his favour. It was found that in the initial notification Exhibit-DA, the name of the Food Inspector was mentioned as Kaji Ram and later on it was rectified, retrospectively by the Government and the notification was issued in the name of Kali Ram. It was found that in this manner Kali Ram, Food Inspector was not authorised to take the sample and to lodge the prosecution. On this ground alone, the learned Magistrate had acquitted the accused-respondent of the charge framed against him. 6. After hearing the learned counsel for the parties and perusing the record, in my opinion, the reasoning given by the learned Magistrate in acquitting the accused-respondent is not borne out from the record and the acquittal of the accused-respondent on this ground cannot be upheld. The prosecution in this case was lodged by Sh. Ajmer Singh, Food Inspector in whose favour, there was a notification, Exhibit-PG. The prosecution in this case was lodged by Sh. Ajmer Singh, Food Inspector in whose favour, there was a notification, Exhibit-PG. Exhibit-DA is the copy of the notification dated 21.7.1978, which was published in the Haryana Government Gazette, giving the powers under Section 9(1) of the Act read with Rule 8 of the Rules framed thereunder, in favour of Kaji Ram Dhanday, Govt. Food Inspector. Another copy of the notification dated 21.7.1978 published in the Haryana Government Gazette, is also available on the record, on which it is mentioned "to be substituted bearing the same number and date". In this notification, the name has been correctly mentioned as Sh. Kali Ram Dhanday Govt. Food Inspector. Once it is found that the earlier notification giving wrong name had been substituted by another notification issued by the State Government giving the correct name as Kali Ram with a direction that the same be substituted bearing the same number and date, in my opinion, it could not be said that there was any defect in the notification. The reasoning given by the learned Magistrate in this regard, in my opinion, cannot be accepted, when he stated in the judgment that it does not appeal to common sense as to how there could be two notifications with the same number and to the same effect. If another notification has been issued substituting the earlier notification in the form of corrigendum and the subsequent notification is ordered to carry the same number and date, the subsequent notification would replace the earlier notification, especially when it was issued in the form of corrigendum. Thus, in my opinion, the learned Magistrate had erred in law in acquitting the accused-respondent of the charge framed against him under Section 16(1)(a)(o) of the Act on the ground that the Kali Ram, Food Inspector was not notified as Govt. Food Inspector. 7. The learned counsel appearing for the accused-respondent submitted before me that on another ground, the accused-respondent is entitled to acquittal. It was submitted that as per the report of the Public Analyst, Exhibit PF, the milk fat was 5.5.% whereas milk solids not fact were 6.8% and in this manner, the milk solid not fact was 20% deficient of the minimum prescribed standard. It was submitted that as per the report of the Public Analyst, Exhibit PF, the milk fat was 5.5.% whereas milk solids not fact were 6.8% and in this manner, the milk solid not fact was 20% deficient of the minimum prescribed standard. It was submitted that in Haryana, cows milk is required to contain 4% milk fat and 8.5% milk solid not fat, as per Clause A.11.o1.11 of Appendix B of the Prevention of Food Adulteration Rules, 1955. It was submitted that in this case the milk fat was 5.5% instead of 4% whereas milk solids not fat were found to be 6.8% instead of 8.5%. It was submitted that in fact accuse-respondent had kept the milk for preparing tea and coffee and that in view of the marginal deficiency in the milk solid not fat and milk fat being more than the minimum prescribed standard, no case for convicting the accused-respondent is made out, especially when he had already been acquitted by the learned Magistrate, though on some other ground. Reliance has been placed on 1983 FAJ 372 (DB), State of Haryana v. Om Parkash, 1985(II) FAC 39 (DB) State of Haryana v. Sewa Ram and 1948-1997 Supreme Court on Food Adulteration Cases page 8, Administrator of the City of Nagpur v. Laxman and another. 8. After hearing the learned counsel for the parties and perusing the record, in my opinion, there is considerable force in the submissions made before me by the learned counsel for the accused-respondent. As per the case of the prosecution itself, the accused was having his shop at Court complex, Rohtak. PW-3 Dr. Jagbir Singh had stated during cross-examination that the accused had disclosed before them that the milk was meant for preparing tea. Even PW-1 Kali Ram, Food Inspector during his cross-examination had admitted the suggestion that the accused had the milk with him for preparing the coffee and tea. Furthermore, as referred to above, as per the report of the Public Analyst, the milk fat was 5.5% and milk solids not fat were 6.8%. Under the Rules, in Haryana the cows milk is required to contain milk fat 4% and milk solids not fat 8.5% as per Clause A.11.01.11 of Appendix-B of the Prevention of Food Adulteration Rules, 1955. Furthermore, as referred to above, as per the report of the Public Analyst, the milk fat was 5.5% and milk solids not fat were 6.8%. Under the Rules, in Haryana the cows milk is required to contain milk fat 4% and milk solids not fat 8.5% as per Clause A.11.01.11 of Appendix-B of the Prevention of Food Adulteration Rules, 1955. In this manner, the milk fats were more than the required percentage whereas milk solids not fat were less than the required percentage. In 1948-1997 Supreme Court on Food Adulteration Case Page 8 (supra), the learned Magistrate had acquitted the accused, who was small milk vender after noticing that the fat percentage was 6% as against 3.5% and was thus more than the standard prescribed for cows milk and the only short-fall was that milk solid not fat was 7.3% whereas it should have been 8.5%. Resultantly, the learned Magistrate had acquitted the accused, which order was upheld by the High Court. After considering the entire matter, the Honble Supreme Court dismissed the appeal holding that it could not be said that the Courts below had erred in acquitting the accused giving the benefit of doubt to accused-respondent. In 1985(II) FAC 39 (supra), the learned Magistrate had convicted the accused but his appeal was allowed by the Additional Sessions Judge on the ground that the deficiency in milk solids was marginal in nature. Taking into consideration that the accused was running a tea shop, a Division Bench of this Court, declined to interfere with the process of acquittal passed by the lower appellate court and accordingly the appeal against the acquittal filed by the State of Haryana was dismissed. Similarly in 1983 FAJ 372 (supra) it was found that the learned Magistrate had acquitted the accused on the ground that the accused had stored the milk for preparation of tea. It was also found that the milk was adulterated being 23.5% deficient in its milk solids not fat and it was found that the accused was a tea vender and had 5 kg of cows milk only for preparation of tea. A Division Bench of this Court held that the accused could into be convicted even if the milk was of sub-standard keeping in view that the had stored the milk for preparation of tea. 9. A Division Bench of this Court held that the accused could into be convicted even if the milk was of sub-standard keeping in view that the had stored the milk for preparation of tea. 9. Taking into consideration the view taken by the Honble Supreme Court and the Division Bench of this Court, as referred to above, in my opinion, no case for interference by this Court with the judgment of acquittal passed by the trial Magistrate is made out, on the facts and circumstances of the present case. Accordingly, the present appeal against the acquittal of the accused- respondent, filed by the State of Haryana, is hereby dismissed. Appeal dismissed.