Complaint against accused did not mention that milk was stirred before taking sample - Fact of stirring stated by Food Inspector in his statement before Court - Held, It was improvement - Accused acquitted

PUNJAB AND HARYANA HIGH COURT

Before :- A. S. Nehra, J.
Criminal Revision No. 977 of 1986. D/d. 4.6.1993.

Baldev Raj - Petitioner
Versus
The State of Haryana - Respondent

For the Petitioner :- Mr. R. S. Cheema, Sr. Advocate, Mr. S. S. Narula Advocate with him.
For the Respondent :- Mr. K.S. Godara, AAG, Haryana.

Punjab and Haryana High Court, Chandigarh Judgments

JUDGMENT

A.S. Nehra, J. - The petitioner was convicted under section 16(1)(a)(1) of the Prevention of Food Adulteration Act (hereinafter called the Act) and was sentenced to undergo rigorous imprisonment for a period of six months and to pay a fine of Rs. 1000/- and in default of payment of fine, to undergo further rigorous imprisonment for four months by the Chief Judicial Magistrate,
Kurushetra, on 19-10-1985. The appeal filed by the petitioner was dismissed by the Sessions Judge, KUrukshetra, on 24.7.1986.
2. Briefly stated, the facts of the prosecution are as under:
    "On 13-11-1981 Government Food Inspector intercepted the accused-petitioner having in his possession 30 Kgs of cow's milk contained in a drum for public sale. He disclosed his identity to the accused and also joined Bal Kishan as a witness on the spot and then served notice Exhibit PA on the accused. He purchased 660 mls of cow's milk for Rs. 1.40 paise under receipt Exhibit PB. The purchased milk was divided into three equal parts and was put into three dry and clean bottles., Eighteen drops of fomaline were added in each bottle as preservative. The bottles were stoppered, securely fastened and then wrapped in strong thick paper which was secured by means of paper strips bearing Code No. 662 and the seal of the Local Health Authority, Dr. S. Gupta, was pasted from neck to bottom of each bottle. He also sealed the bottles. The accused-petitioner also thumb marked the paper slip. The Food Inspector prepared memos Exhibits PA and PC One sealed bottle was sent to the Public Analyst, Haryana, Chandigarh, alongwith Form VII through Railway parcel. Report Exhibit PD, received from the Public Analyst, Haryana, Chandigarh, revealed that it contained milk fat 4.4. percent and milk solid not fat 7.1 per cent, i. e., 16.5 percent less than the minimum prescribed standard. Hence, complaint was filed by the Government Food Inspector.
3. The prosecution examined PW-I Moti Ram, Government Food Inspector PW2 Dr Santosh Gupta. PW3 Dr. N. S. Yadav and PW4 Radhe Sham, Clerk of the office of CMO Kurukshetra.
4. The trial court held that the case of the prosecution stands established from the testimony of the witnesses; that the accused-petitioner was in possession of 30 Kgs of cow milk for public sale; that the sample after analysis was found to be below the prescribed standard and that, as such, the petitioner was guilty of the offence punishable under section 16(1)(i) of the Act.
5. 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 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 milk. It is light 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 fat being at the top, its contents will not be in the same quantity in the lower portion as those are in the upper part. it is for this reason that the Courts have laid down that before taking the sample of milk it has to be made homogeneous so that the sample remains representative.
6. In the case in hand, the evidence of the witnesses is that these sample before it was taken was made homogeneous. The complaint does not contain any reference about the stirring of the milk. It was argued that it is not mentioned in the complaint that the milk was stirred before the sample was taken, that the accused is entitled to be acquitted. In support of his argument, the learned counsel for the petitioner has relied upon The State of Haryana v. Rameshwar, 1987(1) FAC 2.
7. There is no gainsaying that, before a sample of milk is taken by the Food Inspector, he must ensure that the milk has been made homogeneous Otherwise, the report of the Public Analyst is bound to be misleading regarding the contents of fat and solids not fat. While assessing the value of the report, it becomes the duty, of the court to ascertain if the sample of milk had been properly taken by the Food Inspector. The proper sample would only be of the milk made homogeneous by stirring. If the Court comes to the conclusion that the milk was not property stirred and made homogeneous, it is not bound to rely upon the report of the public Analyst to base conviction of the milk vendor. To come to a conclusion that the milk was made homogeneous when the sample was taken, the contents of the complaints have necessarily to be looked into. In case the factum of stirring of milk is missing in the complaint, it is open to the Court to entertain doubt on the statements of the Food Inspector and his witnesses in Court in respect thereof.
8. An analogy can be drawn from a private complaint before a Magistrate as also one made before the police in a cognizable case in the shape of a first information report. If an occurrence takes place, the complainant in such complaint or in the first information report, as the case may be, may give a narration of the same withholding the names of the eye-witnesses or some other salient facts As long as the allegation constitute an offence, the cognizance of the case cannot be refused by the Court. But, at trial, these omissions would assume importance and the proof adduced before the Court regarding the facts so omitted in the first information report would be looked with suspicion and the benefit of doubt will become available to, the accused. Such a situation will arise not because the mention of those facts was a necessary requirement of the complaint to constitute the offence but because the omission would make the evidence, which is produced to prove those facts suspect as an after-thought. The omission is not inherently fatal to the prosecution case but the court, while assessing the evidence, would certainly be entitled to take the view that the evidence of the facts not mentioned in the complaint or the first information report cannot be safely relied upon. By the same reasoning, although it may not be necessary to mention the factum or making the milk homogeneous for maintainability of the complaint, yet it would be open to the Court not to place implicit reliance on the evidence produced in respect thereof in the Court on the ground that, in the light of the omission in the complaint, this evidence could possibly be an afterthought.
9. After hearing the learned counsel for the parties, I hold that the evidence of PW1 Government Food Inspector Moti Ram and PW-3 Dr. N. S. Yadav, that the milk was stirred before taking of the sample, cannot be relied upon, because this fact is not mentioned in the complaint Exhibit PE. PWs 1 and 3 have made, improvements by mentioning only at the stage of evidence that the milk was stirred before taking of the sample, which is a deliberate improvement in the case.

10. For the foregoing reasons, this revision petition is allowed; the conviction and sentence, awarded to the petitioner, are set aside; and he is acquitted.
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