IN THE HIGH COURT OF HIMACHAL PRADESH,
SHIMLA
Cr. Appeal No. 61 of 2005.
Date of Decision: 1st May, 2012.
State of Himachal Pradesh
....Appellant.
Versus
1. Shri Gulzari Lal
Citation;2013(2)Crimes 144 (HP)
The 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.
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
preservative.
to
These
each
were
of
the
properly
bottles
as
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.
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 fat 3.2%,
(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. 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.
DW2 Parvinder Kaur Baweja, Scientist stated
10.
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.
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.
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.
May 01, 2012.
(rc)
(Surinder Singh),
Judge.
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