Sham Sunder, J.@mdashThis revision petition is directed against the judgment dated 23.07.2002, rendered by the Court of Additional Sessions Judge, Kaithal, vide which it dismissed the appeal, against the judgment of conviction and the order of sentence dated 11.01.2002, rendered by the Court of Chief Judicial Magistrate, Kaithal, convicting the accused, for the offence, punishable u/s 16(1)(a)(i) of the Prevention of Food Adulteration Act, 1954 (hereinafter referred to be as the ''Act'' only) and sentenced him to undergo Rl for a period of one year, and to pay a fine of Rs. 1000/-, in default of payment of the same, to undergo further rigorous imprisonment, for a period of one month.
2. The facts, in brief, are that on 28.11.1994, at about 8.10 A.M., Mr. Harbhajan Singh, Government Food Inspector, along with Dr. N K. Dhawan, intercepted the accused at Dhand Road near Silver Oak School, Kaithal, who was having in his possession 30 Its. of cow''s milk for public sale, contained in a drum. The Government Food Inspector, disclosed his identity, to the accused, and notice Ex.PA was served upon him. 750 Mls. of cow''s milk was purchased, for analysis, after mixing the milk in the drum properly and making the same homogeneous. The milk so purchased, was divided into three equal parts, and packed in three dry clean and empty bottles. Preservative was added in the sample bottles. The bottles were stoppered, labelled and then wrapped, in a strong thick paper. One part of the sample, was sent to the Public Analyst, Haryana, Karnal. As per the report of the Public Analyst, Haryana Karnal, the sample was found containing 7.8% of milk solid not fat, against the minimum specified limit of 8.5% laid down for cow''s milk, as per the Rules. The sample was, thus, found adulterated. Copy of report of Public Analyst, Karnal was sent to the accused, giving him an option, to get the second part of the sample, analyzed from the Central Food Laboratory. Thereafter, the prosecution was launched against the accused.
3. The accused exercised his right of sending the second part of the sample to the Director, Central Food Laboratory, Mysore. The same was sent to the said Laboratory. As per the report of the Central Food Laboratory, milk fat 3.0% against the minimum requirement of 4.0% and milk solid not fat 13.8% against the minimum specified limit of 8.5% laid down for cow''s milk, were found in the sample.
4. On his appearance, the accused was supplied a copy of the complaint and other relevant documents, under the provisions of law.
5. In pre-charge evidence, Harbhajan Singh, Government Food Inspector, PW1 was examined, who reiterated the allegations, levelled in the complaint. Thereafter, the pre-charge evidence was closed.
6. After hearing the Counsel for the parties, and, on going through the pre-charge evidence, the trial Court found that a prima-facie case was made out, for the commission of offence, punishable u/s 7 read with Section 16(1) (a)(i) of the Act, against the accused. Accordingly, the charge was framed against him, to which he pleaded not guilty and claimed judicial trial. He also stated that he wanted to cross-examine the witnesses, examined before charge.
7. In the after charge evidence, Harbhajan Singh, Government Food Inspector, was cross-examined, who deposed with regard to the taking of sample, after making the entire quantity of milk, being carried by the accused homogeneous. He also proved various documents. Dr. N.K. Dhawan, appeared as PW2. He was with Harbhajan Singh, Government Food Inspector, at the time of drawing the sample, Darshana Rani, Clerk, Office of Local Health Authority, appeared as PW3 and Satpal, Peon, appeared as PW4. Prem Chand, independent witness, who was joined at the time of taking the sample, was given up, as won over by the accused. Thereafter, the after charge evidence was closed, by the complainant.
8. The statement of the accused, u/s 313 of the Code of Criminal Procedure, was recorded. He was put all the incriminating circumstances, appearing against him, in the evidence of the complainant. He pleaded false implication.
9. In his defence, the accused examined, G.S. Rajorhia, Ex-principal Scientific Officer NDRI, Karnal, as DW1, who deposed, as to how a representative sample of milk could be taken. Thereafter, the accused closed the defence evidence.
10. After hearing the Counsel for the parties, and, on going through the evidence, on record, the trial Court, convicted and sentenced the accused, as stated hereinbefore.
11. Feeling aggrieved, against the judgment of the trial Court, an appeal was preferred by the accused-appellant, which was dismissed vide judgment dated 23.07.2002, by the Court of Additional Sessions Judge, Kaithal.
12. Still feeling dissatisfied, the instant revision petition, was filed by the revision-petitioner.
13. I have heard the Counsel for the parties, and have gone through and perused the evidence and record, of the case, carefully.
14. The Counsel for the revision-petitioner, submitted that the milk, which was allegedly being carried by the accused, was not made homogeneous and, as such, it could not be said that the representative sample was drawn. He further submitted that, on account of this reason, there were variations in the reports of the Public Analyst and the Director, Central Food Laboratory. He further submitted that, on account of the variations, the accused was liable to be acquitted, but the Courts below, were wrong in recording his conviction. He further submitted that the independent witness namely Prem Chand, who was joined, was not examined. He further submitted that on account of this reason also, the accused was entitled to acquittal, but the Courts below were wrong in recording his conviction.
15. On the other hand, the Counsel for the respondent submitted that from the evidence, on record, it was proved beyond doubt, that Harbhajan Singh, Government Food Inspector, before taking the sample, made the entire quantity of milk, being carried by the accused, homogeneous. She further submitted that, no doubt, the report of the Central Food Laboratory, superseded the report of the Public Analyst. She further submitted that even as per the report of the Central Food Laboratory, milk fat was found to be 3.0%, which fell below the minimum requirement of 4.0% and, as such, the contents of the sample were found to be adulterated. She further submitted that, on account of variations, in the two reports i.e. of the Public Analyst and the Director, Central Food Laboratory, the accused was not entitled to acquittal. She further submitted that an independent witness, in the name of Prem Chand, was joined, but was given up as won over.
16. Harbhajan Singh, Government Food Inspector, when appeared, in the witness box as PW1, in clear-cut terms, stated that he properly mixed the milk, being carried by the accused and made the same homogeneous, before taking the sample therefrom. He was put a suggestion, during the course of cross-examination that the milk was not made homogeneous before taking the sample therefrom, but he stoutly denied the same. Dr. N.K. Dhawan, DTO, Kaithal, who was accompanying Harbhajan Singh, Government Food Inspector, at the time of taking the sample, also in clear-cut terms stated that the milk, which was being carried by the accused, in the drum, was stirred properly and it was made homogeneous. He also stated that thereafter the sample was taken therefrom. The evidence of both these witnesses, on this point, could not be shattered, during the course of cross-examination. Even Dr. G.S. Rajorhia, Ex-Principal Scientific Officer NDRI, Karnal, DW1, examined by the accused, during the course of examination-in-chief, stated that the correct method of taking the sample, is to mix it thoroughly with the help of a -Plunger or it should be mixed by pouring five to six times from one container to the other container, in order to make the same homogeneous. The evidence of Dr. G.S. Rajorhia, Ex-Principal Scientific Officer NDRI, Karnal, DW1, therefore, did not at all, go to prove that, in the instant case, the milk being carried by the accused, was not made homogeneous before taking the sample therefrom. Under these circumstances, the Courts below, were right in recording concurrent findings of fact on proper appreciation of cogent, convincing and reliable evidence of Harbhajan Singh, Government Food Inspector and Dr. N.K. Dhawan, at the relevant time, DHO, Kaithal, PW2 that the milk contained in the drum, being carried by the accused, was made homogeneous before taking the sample therefrom. The findings of the Courts below on this aspect of the matter, are neither illegal, nor perverse, nor erroneous on account of misreading of the evidence. Reliance was placed by the Counsel for the revision-petitioner, on Lal Singh v. State of Haryana 2003 (2) CCC 357 (P&H) : 2003(2) RCR(Criminal) 684 and State of Punjab v. Subash 2004(1) RCR(Criminal) 339, in support of his contention that since the milk was not made homogeneous, the sample taken therefrom, could not be said to be representative and as, such, the accused was entitled to acquittal. The perusal of the facts of the aforesaid authorities, clearly goes to show that the same are clearly distinguishable, from the facts of the instant case. In those cases it was held that the milk wherefrom the sample was taken, had not been made homogeneous. In the instant case, as stated above, the milk was made homogeneous before taking the sample. No help, therefore, can be drawn by the Counsel for the revision-petitioner, from these authorities. In this view of the matter, the submission of the Counsel for the revision-petitioner, being without merit, must fail, and the same stands rejected.
17. Now coming to the second aspect of the matter, as to whether, the accused was entitled to acquittal on account of variations, in the reports of the Public Analyst and the Director, Central Food Laboratory, it may be stated here, that the submission of the Counsel for the revision-petitioner, in this regard, is also devoid of merit. As stated above, the report of the Central Food Laboratory, supersedes the report of the Public Analyst. As per the report of the Central Food Laboratory, Ex.PF, the milk fat was found to be 3% against the minimum prescribed standard of 4%. As such the sample did not conform to the standards laid down, in the Food Adulteration Rules, 1955. In Jagdish Prasad alias Jagdish Prasad Gupta v. State of West Bengal, Supreme Court on Food Adulteration Cases 1948-1997 page 56, it was held that if the sample does not conform to the standards laid down in the Rules, then it is adulterated. Similar principle of law, was laid down in State of Punjab v. Ramesh Kumar 1992(1) PFAC 120, decided by a Division Bench of this Court. Reliance was placed by the Counsel for the revision-petitioner on Administrator of the City of Nagpur v. Laxman & Anr. 1995 SCC(Crl.) 354, in support of his contention that if, there are variations in the reports, the accused is entitled to acquittal. The facts of the case cited by the Counsel for the revision-petitioner are distinguishable, from the facts of the instant case. As stated above, since the sample did not conform to the standards laid down, in the Prevention of Food Adulteration Rules, 1955, it was rightly found to be adulterated by the Central Food Laboratory, vide report Ex.PF. The Courts below were right in coming to the conclusion that the sample was adulterated as the same did not conform to the standards, laid down in the Rules. The submission of the Counsel for the revision-petitioner, being without merit, must fail, and the same stands rejected.
18. Prem Chand, independent witness, was joined, in this case. There was, thus, compliance with the provisions of Section 10(7) of the Act. He, however, joined hands with the accused, during the course of trial of the case, and, as such, he was given up as won over by the Government Food Inspector. It means that the Government Food Inspector, complainant, exercised the discretion, vested in him, in giving up Prem Chand, independent witness, as won over by the accused, in a bona-fide manner. It could not be said that the discretion exercised by the Government Food Inspector, in giving up Prem Chand, independent witness, as won over by the accused, was, in any way, arbitrary or capricious. The evidence produced by the complainant was rightly held to be reliable. In
19. No other point was urged by the Counsel for the parties.
20. For the reasons recorded above, the revision-petition, being devoid of merit, is dismissed. The judgment of conviction and the order of sentence dated 11.01.2002, rendered by the Court of the Chief Judicial Magistrate, Kaithal, and the judgment dated 23.07.2002 rendered by the Appellate Court, affirming the judgment of the trial Court, are upheld. If the revision-petitioner is on bail, his bail bonds shall stand cancelled.
21. The Chief Judicial Magistrate, shall take necessary steps, to comply with the judgment promptly, in accordance with the provisions of law, on receipt of a copy thereof.
