@JUDGMENTTAG-ORDER
N.K. Gupta, J.@mdashThe applicant was convicted for commission of offence punishable u/s 7(1) read with Section 16(1)(a)(1) of the Prevention of Food Adulteration Act, 1954 (for brevity "Act, 1954") and sentenced for six months'' simple imprisonment with fine of Rs. 1000/-, in default of payment of fine, additional SI for two months, by the Chief Judicial Magistrate, Shahdol vide judgment dated 16.7.1998 in Criminal Case No. 893/1996. In Criminal Appeal No. 119/1998, the Additional Sessions Judge, Shahdol vide judgment dated 12.2.2001 dismissed the appeal of the applicant. Being aggrieved with the judgments of both the Courts below, this criminal revision is preferred by the applicant.
2. Prosecution case, in short, is that on 23.11.1995 at bypass road Shahdol, Food Inspector J.P.Verma (PW-2) was inspecting the milk carried by some of the milk vendors. The applicant Mohd. Baitulla was found transporting three cans of milk. On enquiry the applicant informed that it was a mixed milk of cow and buffalo. A notice Ex.P-7 was given to the applicant in form No. 6 and 750 ml. milk was purchased. Sample was made homogeneous and thereafter 750 ml. milk was distributed in three dried plastic bottles. 20 drops of formalin were added to each part of the sample and was sealed properly. Thereafter slip issued by the Local Heath Authority was pasted on the samples and samples were sealed in a proper manner. Food Inspector Shri Verma had prepared a document Ex.P-9, Panchanama of the entire proceedings. Ultimately, the sample was sent for analysis to the Public Analyst and it was found in the report of the Public Analyst that fat contents in the sample were found to be 3.5% whereas solid not fat contents were found to be 8%, therefore the Public Analyst found the sample to be adulterated. After getting a due sanction from the Local Health Authority, a complaint was filed before the trial Court.
3. The applicant-accused abjured his guilt before the trial Court. He did not take any specific plea in the matter, but he has stated that he was not dealing in milk and no sample was taken from him. However, no defence evidence has been adduced.
4. The Chief Judicial Magistrate, Shahdol after considering the evidence adduced by the prosecution convicted and sentenced the applicant in aforesaid manner. In appeal no relief could be granted to the applicant.
5. I have heard the learned counsel for the parties.
6. Learned counsel for the applicant has challenged the judgments of the Courts below mainly on three counts. Firstly, the applicant had not sold any milk to the Food Inspector, and therefore he was unnecessarily convicted for the alleged offence. Secondly, while taking the sample, the entire milk of that can was not stirred properly, and therefore the sample taken from the can was not a representative sample of entire milk. Under such circumstances, the applicant could not be convicted for adulteration. Learned counsel for the applicant has placed reliance on the orders of this Court in the case of
7. On the other hand, learned counsel for the State has supported the impugned judgments of the Courts below. He submits that the conviction and sentence directed by the Courts below are based on sound reasonings and no illegality or perversity is visible in the impugned judgments.
8. After perusal of the entire evidence led by the prosecution, the first contention raised by learned counsel for the applicant cannot be accepted. The applicant has signed the various memos including Ex.P-7 that was form No. 6 under Rule 12 of the Prevention of Food Adulteration Rules, receipt Ex.P-8 and Panchanama Ex.P-9. Again some notices were sent to him, but he did not raise such objection before the Local Heath Authority or to any other authority to the fact that no sample was taken from the applicant. No such suggestion was given to the Food Inspector J.P. Verma in his cross examination. It is also argued by the learned counsel for the applicant that no independent witness was examined, and therefore the evidence of the Food Inspector cannot be relied upon. Looking at the entire procedure and various documents including the evidence of complainant J.P.Verma, it cannot be said that there was any enmity between the Food Inspector and the present applicant, and therefore the sole testimony of the Food Inspector cannot be disbelieved without any reason. It is true that independent witnesses were not examined, but it is nowhere alleged that the Food Inspector did not take independent witnesses at the time of taking the sample. In such circumstances, if witnesses are not examined or they turned hostile, then the sole testimony of the Food Inspector can be assessed. Therefore, if the testimony of the Food Inspector is believable, then it cannot be said that the Food Inspector has prepared a false case against the applicant. Under such circumstances, it is apparent that the sample was taken from the applicant himself.
9. Learned counsel for the applicant further submitted that it is nowhere mentioned in the memo Ex.P-9 that the bottles were empty and the milk contained in the can was properly stirred before taking the sample. The contention raised by learned counsel for the applicant cannot be accepted. It is very well mentioned in the memo Ex.P-9 that samples were taken in dried odorless bottles. Since it was a sample of liquid, therefore it was sufficient to make sure that bottles were dried and also that they were empty. If some liquid was already present in the bottles, then it could not be a dried bottle. Misrepresentation of language cannot be done in such a manner. It would be made clear at this stage that fat content in the samples were found to be 3.5% and solid not fat content were found to be 8%. According to the Para A.11.01.11 of the Appendix B of the Act, 1954, it would be clear that for mixed milk percentage of fat and solid not fat should be 4.5 and 8.5 respectively, and therefore the sample in question was found adulterated with the water, hence percentage of fat as well as solid not fat content was lesser than the required standard. Since the bottle is mentioned to be dried in Ex.P-9, it should be presumed that there was no water content in the bottle prior to filling of that sample.
10. It is also argued by learned counsel for the applicant that the milk in the can was not properly stirred prior to taking the sample but such factual position is not proved by the defence in the present case. In the case of Ujjain Municipal Corporation (supra) and Mehboob Khan (supra) it is held by this Court that if the liquid is not made homogeneous prior to taking the sample, then the sample taken from the liquid is not a representative sample of the liquid, and therefore non-compliance of Rule 9(A) of the Rules, 1955 will be fatal to the prosecution. But such decision will be helpful to the applicant, if it is proved that milk was not stirred properly before taking the sample. Though it is nowhere mentioned in the Panchanama Ex.P-9 to the fact that the milk was stirred in the can before taking the sample, the Food Inspector J.P. Verma has stated in his statement that he made milk homogeneous before taking the sample and thereafter the applicant gave the sample by a measure of 500 ml milk. One complete measure and half measure of milk was given in a container, therefore looking at the procedure mentioned by the Food Inspector, it cannot be said that the milk was not made homogeneous prior to taking sample. If the milk is not made homogeneous prior to taking the sample, then there should be a disbalanced result received from the Public Analyst or Central Food Laboratory. If it is found that percentage of solid fat is less and percentage of solid not fat is higher than the expected concentration or vice versa, then only it can be said that due to disbalanced result it appears that the sample was not made homogeneous.
11. In the present case, the percentage of fat and solid not fat is lesser than the required standard, therefore by the report of the Public Analyst, it cannot be said that percentage of fat and solid not fat was not properly balanced. Similarly, no application u/s 13(2) of the Act, 1954 was moved by the applicant, and therefore no report of the Central Food Laboratory was obtained in the case. Hence, there is no possibility of comparison of the analysis by two different laboratories. In such circumstances, factual position in the case is not such, that the ratio laid down in the case of Ujjain Municipal Corporation (supra) and Mehboob Khan (supra) may be applied. Under such circumstances, the applicant cannot get any advantage of non-compliance of Rule 9(B) of the Rules, 1955, because non-compliance of that rule was not proved by the applicant.
12. Learned counsel for the applicant has submitted that the sample was taken on 23.11.1995, whereas a notice u/s 13(2) of the Act, 1954 was given on 17.7.1996 i.e. 7 months and 26 days after taking the sample. However, it appears that the complaint was filed before the Chief Judicial Magistrate, Shahdol on 11.7.1996, and on that date the applicant was present in the Court, and therefore delay must be counted from the date of taking of sample to the date on which the complaint was filed. In such circumstances, it appears that the complaint was filed after 7 months and 18 days of taking the sample.
13. As per the provisions of Section 13(2) of the Act, 1954, the applicant had the right to move an application u/s 13(2) of the Act for reexamination of the sample on receiving the notice. Since he was present at the time of filing of the complaint and he received the copy of complaint and papers including the report of the Public Analyst, therefore it was for him to move an application u/s 13(2) of the Act soon after filing of the complaint.
14. Learned counsel for the State has submitted that if the applicant had applied for analysis of the second part of the sample by the Central Food Laboratory and if sample was found deteriorated, then it could be said that the right of the applicant u/s 13(2) of the Act was violated, but since he did not apply at all, it cannot be said that his right was violated. In this context the order passed by this Court in the case of
So considering the various authorities cited above, it can be said that a sample of milk, even after adding preservative, can remain fit for analysis at the most for a period of six months, if kept under refrigeration. The period given in the Encyclopedia of Britanica is of course under the conditions prevailing in cold countries but our climate is much warmer. In fact, temperature is normally above 70 F. throughout the year, the summer temperature being very much higher. There are also not such facilities available here for preservation of the samples as in those advanced countries.
15. Again in the order passed by this Court in the case of Ram Singh (supra) the judgment passed in the case of Shiv Dayal Saligram Tiwari (supra) has been referred and it was held that "it is not in dispute that right to examine the remaining sample from Central Food Laboratory was a valuable right of the applicant and this could not be destroyed by the prosecution and it is a settled position of law that after 6 months the preservative mixed with the milk has lost its strength and the sample does not remain fit for analysis. Under such circumstances, it is not necessary to apply for analysis of that sample u/s 13(2) of the Act, 1954.
16. In the present case if the factual situation is examined, then it would be clear that the complaint was initiated after more than 7 months. It is true that no hard and fast limitation can be fixed for consideration of deterioration of the sample. Formalin loses its effect due to heat, and therefore it is not necessary that on exact completion of six months, formalin may lose its effect. One-two weeks may be considered as a period of margin. But in the present case the complaint was filed before the concerned Magistrate after 7 months and 18 days, therefore that margin period was also over. It is also clear from the record that the applicant did not move any application u/s 13(2) of the Act. Learned counsel for the State has stated that since the applicant has not applied for re-examination of the sample, then he cannot get the benefit of the said provisions. However, such contention cannot be accepted. It appears to be a hyper technical approach. For the sake of argument if such an application was moved, then the right could not be said to be exhausted by the applicant because the sample would have deteriorated due to lapse of time period of more than six months.
17. By the aforesaid view, it would be clear that when it was apparent to the Court that the prosecution was launched after a great delay, and therefore it would be a hyper technical approach to seek for an application u/s 13(2) of the Act for re-analysis of the sample from the Central Food Laboratory whereas result of such examination is apparent because the sample must have deteriorated due to expiry of preservative. Such hyper technical approach is not required at all. The right given u/s 13(2) of the Act is a valuable right, which cannot be denied to any of the accused, and therefore if a complaint was filed after six months, then delay caused in filing of that complaint clearly deprives the accused from his valuable right as per the provisions of Section 13(2) of the Act. Under such circumstances, when the applicant was deprived of his right u/s 13(2) of the Act, 1954, then he could not be convicted for the offence of adulteration.
18. Therefore, in the light of aforesaid orders passed by this Court in the case of Shiv Dayal Saligram Tiwari (supra) and Ram Singh (supra), this Court has no option except to acquit the applicant, because his valuable right u/s 13(2) of the Act to get the sample examined from Central Food Laboratory was withheld. In such circumstances, both the Courts below have committed an error in convicting the applicant for the offence of adulteration. The Courts below did not consider this aspect of the case, and therefore apparent perversity is visible in their judgments. Therefore, the judgments are not sustainable in the eye of law.
19. Consequently, the present revision petition succeeds and is allowed. The judgments of both the Courts below are hereby set aside. The conviction and sentence for commission of offence u/s 7(1) read with Section 16(1)(a)(1) of the Act, 1954 are hereby set aside and the applicant is acquitted from the aforesaid charges. If any fine amount was deposited by the applicant before the trial Court, then he shall be entitled to get the same back.
20. At present the applicant is on bail, his bail bonds shall stand discharged, because the presence of the applicant is not at all required now in the present case.
