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Himachal Pradesh High Court · body

2012 DIGILAW 237 (HP)

State of Himachal Pradesh v. Gulzari Lal

2012-05-01

SURINDER SINGH

body2012
JUDGMENT SURINDER SINGH, J. (Oral) he State felt aggrieved by the acquittal of the respondents in Criminal Case No.59-S/3 of 2K/95, decided on 30.9.2004, for the offence punishable under Section 16(1)(a)(i) of the Prevention of Food Adulteration Act, 1954, in short ‘the Act’ for allegedly selling the adulterated standardized milk to the Food Inspector. Hence the present appeal. 2.The facts, giving rise to the present appeal, in short, can be stated thus. On 24.10.1994, PW1 Food Inspector (F.I.) S.C. Joshi, around noon intercepted the shop of respondent No.1 Gulzari Lal. He noticed 20 sealed polythene pouches of 500 grams each were exhibited by him for sale to the general public for human consumption. F.I. disclosed his identity and issued notice Ext.P1. He opened two sealed polythene pouches in the presence of the accused and put it into clean and dry jug. It was properly mixed and out of this he purchased 750 grams of milk on making payment of ‘ 8.25 paise vide receipt Ext.P2. The aforesaid milk purchased by him was put into three clean and dry bottles 20 drops of formalin were added to each of the bottles as preservative. These were properly fastened, packed, labeled and wrapped with thick paper and then a paper-slip No.SLN/S/ 194/94 issued by the L(H)A, Solan was pasted on each of the sample bottles and each bottle was tied with a thick thread above and across to avoid any leakage. Each of the sample bottles were also sealed in the presence of independent witnesses Varinder Sahani and Mehar Chand. Panchnama Ext.P3 with respect to these proceedings was prepared in the presence of the accused and the witnesses aforesaid. An empty polythene envelop was also sealed whereupon the name of the manufacturer (4th respondent) was found printed. One of the samples was sent to the Public Analyst for analysis with the memorandum Ext.P4 through PW3 Mehar Chand, Peon. Memorandum form-7 was separately sealed in a packet and handed over to the Public Analyst for analysis. The remaining two samples were deposited with the L(H)A, Solan. 3.On analysis, the Public Analyst vide his report Ext.P6 opined that the milk fat content is 4.1% against the minimum prescribed standard of 4.5% and milk solids-not-fat content is 8.16% against the minimum prescribed standard of 8.5%. Therefore, the sample of “pasteurized standardized milk” was adulterated. The remaining two samples were deposited with the L(H)A, Solan. 3.On analysis, the Public Analyst vide his report Ext.P6 opined that the milk fat content is 4.1% against the minimum prescribed standard of 4.5% and milk solids-not-fat content is 8.16% against the minimum prescribed standard of 8.5%. Therefore, the sample of “pasteurized standardized milk” was adulterated. 4.The Food Inspector is alleged to have produced all the papers Ext.P.1 to P6 alongwith his letter Ext.P.7 to the Chief Medical Officer (SMO), Solan for launching prosecution against accused Gulzari Lal to which he accorded in writing after application of its mind. Thereafter the complaint was filed alongwith documents and an empty polythene packet of milk in the Court for the trial for the accused. Notice under Section 13(2) of the Act was issued alongwith the report of analysis. 5. Accused Gulzari Lal from whom the sample was taken was summoned. He was accordingly charge-sheeted for the aforesaid offence. He pleaded not guilty and claimed trial. During the trial respondents No.2 to 4 were also arrayed as accused being the associates and manufacturer of the milk. 6. The accused exercised his right under Section 13(2) of the Act to get the second sample examined from the Director, Central Food Laboratory by moving an application on 14.2.1995. On 14.3.1995, the request was allowed. The L(H)A produced one part of the sample, over which the accused admitted his signatures and the seals put by F.I. The learned trial Court after having been satisfied about its identity marked it with distinct No.CJM/I-SOL- and sent to the Director, Central Food Laboratory, Mysore with a copy of memorandum form No.I. Another copy of the said form was sent separately by post. Till the report of the CFL, the trial was kept in abeyance. On the receipt of the report of the CFL, Mysore, the proceedings revived. It superseded the report of Public Analyst. The report of the CFL is Ext.PW2/E. The sample contained: (1)Milk fat3.2%,(2)Solids not fat 8.5%,(3) Test for starch negative and , (4)Test for cane sugar negative.The Director, CFL opined that the sample did not conform to the standards laid down for ‘standardized milk’ under the PFA Act, 1954 and the Rules thereof as the milk fat content falls below the minimum requirement of 4.5%. 7. Thus the trial proceeded further. 7. Thus the trial proceeded further. After the closure of the prosecution evidence, the accused persons were also examined under Section 313 of the Code of Criminal Procedure. They disputed the sampling process and also questioned the association of the so called independent witnesses, who were not in fact the independent witnesses and adduced evidence in defence by examining DW1 Shri S.K. Anand, Retired Public Analyst, DW2 Parvinder Kaur Baweja, Metrology Scientist of Dr. Y.S. Parmar, University, Nauni, Solan and accused persons R.K. Sharma (DW3) and Suresh Kumar (DW4) examined themselves as their own witnesses after seeking permission. Shri R.K. Sharma is G.M. of the Milk Food Plant. He stated that sampling process was wrong as heat treatment was not given. At the end of the trial, the accused persons were acquitted on the ground that the Food Inspector did not make the sample homogenous and further that neither PW3 Mehar Chand nor PW Varinder Sahani (again numbered as PW3) were the independent witnesses because one being Peon, subordinate to the F.I. and another a shopkeeper running a ‘Karyana shop’, both were interested witnesses. 8. Heard and gone through the record carefully. 9. On the reappraisal of the evidence on the record, I find a major defect in taking the sample of the standardized milk 24.10.1994 from the shop of respondent/accused No.1 located at Solan. According to DW1 Shri S.K. Anand, Retired Public Analyst, if the sample is taken from the milk- pouch, the Food Inspector is required to keep it for some time in hot water so that the fat content which sticks to the polythene envelope inside mixes up in the milk and this process would make the sample homogenous. He also testified that the milk fat dissolves at a temperature of 21 degree centigrade. Even the Food Inspector also admitted that before taking the sample from the sealed packets these are required to be kept in hot water so also DW4. 10. DW2 Parvinder Kaur Baweja, Scientist stated that Solan is at a height of 1354 meters, whereas Nauni is at 1254 meters. She proved her certificate Ext.DW2/A whereby the temperature of Nauni on 24.10.1994 was 17.2 degree centigrade with the relative humidity of 70%. Whereas, PW3 Mehar Chand admitted that it was the month of October and the winter had just started. Therefore, Solan must be colder than Nauni. She proved her certificate Ext.DW2/A whereby the temperature of Nauni on 24.10.1994 was 17.2 degree centigrade with the relative humidity of 70%. Whereas, PW3 Mehar Chand admitted that it was the month of October and the winter had just started. Therefore, Solan must be colder than Nauni. Therefore, the heat treatment was required to be given to the milk pouches before stirring which was not given. Food Inspector stated only having mixed the milk in the Jug with Karchhi which is also contradicted by PW3 Varinder Sahani. He stated about the use of spoon. PW3 Varinder Sahani in his cross examination did not rule out the possibility of sticking up some fat into the pouch while taking milk therefrom. Similar is the statement of PW3 Mehar Chand. Significantly, PW1 Food Inspector stated in his cross-examination that the Jug in which the milk was collected was having water therein, which was emptied and the milk was poured from the packets in that Jug. Thus, the possibility of mixing of water contents cannot be ruled out when the deficiency of milk fat is quite marginal. 11. On the critical examination of the aforesaid evidence it appears that the milk in question was not made homogenous and properly stirred before taking the sample. The law is well settled that before milk sample is taken, which is a liquid, it should be stirred and made homogenous. The reason for this is that the milk which is a 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 accumulates there. If it is in a packet, it gets stick up within. If a sample is taken without applying heat as aforesaid, its contents will not be in the remaining portion or it would vary. Though, the report of the CFL is final and conclusive evidence of factual contents, but not of any opinion expressed therein. If it is in a packet, it gets stick up within. If a sample is taken without applying heat as aforesaid, its contents will not be in the remaining portion or it would vary. Though, the report of the CFL is final and conclusive evidence of factual contents, but not of any opinion expressed therein. Since the sampling in the present case is defecting, therefore, the report of the CFL cannot be taken on its own face value to prove the case against the accused persons in accordance with law. 12. Further, the witness Varinder Sahani was running a ‘Karyana shop’ and was having litigation with accused No.1 and another witness Mehar Chand is a Peon of the Food Inspector. Thus, in the present factual position they cannot be said to be independent witnesses, therefore, the provisions of Section 10(7) of the Act are infracted. The said provision is evidently intended to ensure that the process of taking the sample by the Food Inspector is witnessed by one or two persons called for the purpose by the Food Inspector. Such person(s) must be disinterested and taking of the sample must be witnessed by one or two independent witnesses to lend credibility to the version of the Food Inspector when examined in the Court. Their testimonies in this case are of no help to the prosecution otherwise also on merit. The evidence on record shows that there were many other persons present at the spot when the sample was taken and it was a busy market. The Food Inspector could have easily associated one or two independent persons to witness the sampling process, which was not done. Therefore, the case also suffers from this vice. 13. As a sequel of the aforesaid findings, the acquittal of the accused persons cannot be interfered with as the same is borne out from the record. The appeal sans merit, hence dismissed. 14. The respondents are discharged of their bail bonds entered upon by them at any stage during the proceedings of this case.