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Madhya Pradesh High Court · body

2006 DIGILAW 789 (MP)

Babu v. State of M. P.

2006-06-27

S.C.VYAS

body2006
ORDER 1. These two criminal revisions have been directed against the judgment of conviction and order of sentence passed by JMFC, Ujjain and confirmed by Additional Sessions Judge, Khachrod. As the same questions of law and facts are involved in these two revisions, therefore, they are decided by this common order. This original order be kept in Cr.R. No. 106/2006 and the copy of the same be kept on the record of Cr.R. No.1 09/2006. 2. Facts of the case in Cr. R. No. 106/2006 which are necessary for disposal of this revision are that on 21.9.1981 at about 7.00 a.m. Food Inspector, Chandra Shekhar Sharma, Municipal Corporation, Ujjain intercepted the applicant, who was carrying milk in a can on a cycle for selling. Food Inspector purchased sample of 660 ml. of milk from him for the purpose of analysis and paid cost of the same. The sample was divided equally, after making it homogeneous was sealed in three empty and dry bottles, after adding 18 drops of preservative formalin in each of the bottles. One bottle of sample was sent for chemical examination to the public analyst, Ujjain. On analysis as per the report of public analyst 4.4% fat and 8% solids not fat were not found in the sample and as the sample was not in conformity with the standard prescribed for the milk, therefore, it was found adulterated. Copy of the report of public analyst was sent by registered post to the applicant and thereafter, complaint was filed before learned Magistrate. Learned Magistrate during trial recorded plea of the present applicant and then proceeded for trial. After trial applicant was found guilty for the offence punishable under section 7 (1) read with section 16 (1) (a) (i) of the Prevention of Food Adulteration Act and has been sentenced for rigorous imprisonment for three months and fine of Rs. 1,000/-. He preferred Cr.A. No. 181/05 against the judgment of conviction and order of sentence. Appeal was dismissed by Additional Sessions Judge, Khachrod vide judgment dated 31.1.2006, hence the present revision petition has been filed challenging the finding of guilt and order of conviction and sentence. 3. Facts of Cr. R. No. 109/2006 which are necessary for disposal of this revision are that on 15.10.1987 at about 7.00 a.m. applicant Babu s/o Sher Mohd. Appeal was dismissed by Additional Sessions Judge, Khachrod vide judgment dated 31.1.2006, hence the present revision petition has been filed challenging the finding of guilt and order of conviction and sentence. 3. Facts of Cr. R. No. 109/2006 which are necessary for disposal of this revision are that on 15.10.1987 at about 7.00 a.m. applicant Babu s/o Sher Mohd. was intercepted by Food Inspector, Satyanarayan Gupta, Municipal Corporation, Ujjain, while he was carrying mixed milk of cow and she buffalo in a can on a cycle. 750 ml. of milk was purchased by the Food Inspector, after paying its cost for the purpose of analysis and was divided in three parts. After making it homogeneous, it was sealed in three separate empty and dry bottles. One of such bottle was sent for analysis to the public analyst, Ujjain, who on analysis found that the sample was found containing 4.5% fat and 8% solid not fat and, therefore, it was found adulterated. Report of the public analyst was sent to the applicant by registered post and then a complaint was filed before JMFC, Ujjain, who after trial found applicant guilty for the offence punishable under section 7 (1) read with section 16 (1) (a) (i) of the Prevention of Food Adulteration Act and sentenced him with rigorous imprisonemnt for three months and fine of Rs. 1,000/-. Cr. A. No. 182/05 preferred against this judgment was dismissed by Additional Sessions Judge, Ujjain vide judgment dated 31.1.2006, hence the present revision petition has been preferred to challenge the finding of guilt and order of sentence. 4. Learned counsel of the applicant in both these criminal revisions, submitted that in both of these cases applicant Babu s/o Sher Mohd. was found guilty and has been sentenced for committing an offence punishable under section 7 (1) read with 16 (1) (a) (i) of the Prevention of Food Adulteration Act. He has further submitted that in both these cases solid not fat was found 8% as against prescribed standard of 8.5% and the fat was found respectively as 4.4% and 4.5%, which was almost in conformity with the standard prescribed and, therefore, he submitted that there was only marginal difference of 0.5% in not solid fat, which could be due to improper feeding of the animals. He has further submitted that ·the possibility of distribution of fat or solid not fat in the milk in separate samples of bottles cannot be ruled out, ·as a result of improper churning of milk. He placed reliance on the judgment of Hon'ble Supreme Court passed in the case of P.S. Sharma v. Madanlal Kasturichandji and another [2003 FAJ 75] and on the basis of this pronouncement of Hon'ble Supreme Court submitted that in such cases the order of acquittal was upheld by the Hon'ble Supreme Court and, therefore, same view should be taken in this case also. 5. A carefully reading of the pronouncement of Hon'ble Supreme Court in the above referred case reveals that when marginal difference like one percent was noticed by public analyst or by Central Food Laboratory, the Courts have taken view that it is possible that there may be some error creeping in conclusion reached thereto. This view was upheld by Hon'ble Supreme Court and no interference was made in the order of acquittal passed in favour of respondents of that case. Circumstances in the present two revision petitions are similar of the above referred case. In the present case the difference was around 0.5% in solid not fat, whereas the fats were found almost in conformity with the prescribed standard and, therefore, looking to this marginal difference in solids not fat the possibility of uncommon distribution of fat in different bottles of samples cannot be ruled out. 6. In this context learned counsel for the applicant placed further reliance on the judgment of Punjab and Haryana High Court in the case of Bhal Singh v. State of Haryana [2003 (1) FAC 207]. In that case also milk solids not fat were found deficient by 26% of the minimum prescribed standard, whereas the standard of fat was fulfilled, therefore, it was held that in such a situation it cannot be said that milk was not pure, but only an inference which can be drawn that the buffalo and cow was not properly fed and on this finding the petitioner was acquitted. In the present two cases the milk, which was purchased for sample was mixed milk of cow and buffalo. The standard prescribed for such milk as per Rule A (11) is 4.5% milk fat and 8.5% solids not fat. In both these cases the difference in all was 0.5% and 0.6%. In the present two cases the milk, which was purchased for sample was mixed milk of cow and buffalo. The standard prescribed for such milk as per Rule A (11) is 4.5% milk fat and 8.5% solids not fat. In both these cases the difference in all was 0.5% and 0.6%. The per cent of fat was as per prescribed standard in one case, whereas there was difference of 0.1 % in one case and both cases the difference in solids not fat was 0.5%. So in both these cases total difference was not more than 1 %, therefore, the principle laid down by the Hon'ble Supreme Court in the case of P.S. Sharma v. Madanlal (supra) applies in these cases also and so the applicant is entitled for acquittal in both these cases. 7. Learned counsel for the applicant further contended regarding non service of notice under section 13 (2) of the Prevention of Food Adulteration Act and thereby not providing proper opportunity for analysis of second part of the sample from Central Food Laboratory. In view of the minor deficiency which was less than 1 %, it is not necessary to discuss this aspect of the matter in both these cases. 8. In view of above both these revision petitions succeed and are allowed. The applicant is acquitted from the charge of the offence punishable under section 7 (1) read with section 16 (1) (a) (i) of the Prevention of Food Adulteration Act. If the amount of fine is deposited, the same be returned to him.