Criminal Appeal No. 94-DBA of 1987

10th October, 1991.

Petitioner Counsel: Suvir Dewan AAG Hy,
Respondent Counsel: P. S. Rana, .

Cases Cited:
(FB) (Fall.), 1985 Cri LJ 311,(1984) 2 FAC 179,AIR 1986 PunjHar 130 [Para 6]
(1983) 10 Cri LT 107,1983 FAJ 372 (Punj and Har) [Para 7]
(1982) 2 FAC 397,1982 Chand Cri C 293 (Punj and Har) [Para 8]
1982 Chand LR (Cri) 102,(1981) 2 FAC 116 (Punj and Har) [Para 5]
(1982) 9 Cri LT 377. (1985) 2 FAC 189 (Punj and Har) [Para 7]
(1982) 9 Cri LT 378 (Punj and Har) [Para 9]
1979 Cri LJ NOC 87,1979 Chand LR (Cri) 25 [Para 9]
(Bombay), 1977 Cri LJ 1807 [Para 7]
1976 Cri LJ 547,AIR 1976 SC 621 [Para 5]
(Punj and Har) (FB), 1976 Cri LJ 1648 [Para 7]

JUDGMENT

A. S. NEHRA, J.:-This appeal is directed against the judgment dated 3-6-1986 passed by the Sessions Judge, Karnal by which the respondent was acquitted of the charge under Section 16(1)(a)(i) read with

Section 7 off he Prevention of Food Adulteration Act, 1954 (hereinafter called the Act).

2. On 15-5-1983 at about 11-30 a.m. Government Food Inspector R. D. Goel (P.W. 1) accompanied by Dr. K. L. Sachdeva (P.W. 3) visited the shop of the respondent and found him in possession of cow milk weighing about 7 kgs. The Government Food Inspector disclosed his identity, served notice Exhibit PA on the respondent and then purchased for analysis 660 mls. of boiled milk on payment of Rs. 2/-, vide receipt Exhibit PB. The sample, as purchased, was divided into three equal parts and put in to three dry and clean bottles. Formalin was added to all the three bottles which were duly stoppered, labelled and wrapped in a strong thick paper and were secured by means of strong twine and sealed. The sample was taken in the presence of Dr. K. L. Sachdeva P.W. 3 and one Mool Chand. Sample memo Exhibit PC was prepared. It was signed, amongst others, by the respondent also. One sealed bottle was sent to the Public Analyst, Haryana, for analysis and the remaining two bottles were kept in the office of the Local Health Authority. According to the report Exhibit PD of the Public Analyst, the sample milk was found to be adulterated. It was deficient in milk-solids-not-fat to the extent of 23.5 per cent of the minimum prescribed standard. On receipt of this report Exhibit PD, a complaint was filed against the respondent.

3. Both the witnesses, whose evidence had been recorded before the framing of the charge, were recalled for further cross-examination. Besides their statements, the appellant examined Dr. K. L. Sachdeva P.W. 3 and Baldev Raj P.W. 4 Mool Chand P.W. was given up as having been won over by the respondent. All these witnesses corroborated the prosecution version.

4. The respondent, when examined under Section 313, Code of Criminal Procedure, denied all the incriminating circumstances appearing against him. He took up a plea that he was innocent and that no sample milk was purchased from him. In defence, he examined Hari Singh D.W. 1 and Mool Chand D.W. 2, but the trial Court did not place any reliance on the defence evidence led in this case, and believing the prosecution witnesses to be true found the respondent guilty of the offence charged.

5. The learned counsel for the respondent argued before the learned Sessions Judge that the respondent was a tea-vendor and that he had kept the milk only for preparation of tea and not for sale as such. He further submitted that, even according to the prosecution case, the respondent was a tea-vendor and there is no evidence on the record to show that the respondent used to sell the milk as such. Relying upon State of Haryana v. Sewa Ram, (1982) 9 Cri LT 378 (Punj and Har) and State of Haryana v. Om Parkash,(1983) 10 Cri LT 107 (Punj and Har), the Sessions Judge held that the respondent had stored the milk for preparation of tea which he used to sell to customers and there was no evidence to show that the respondent was a milk vendor. Therefore, the respondent was acquitted by the Sessions Judge.

6. The learned counsel for the appellant-State has argued that both the aforesaid Division Bench Judgments of this Court have been over ruled by a Full Bench judgment of this Court reported as Budh Ram v. State of Haryana, (1984) 2 FAC 179 : (1985 Cri LJ 311) and, therefore, the respondent has been wrongly acquitted by the Sessions Judge.

7. In Budh Ram's case (1985 Cri LJ 311) (Punj and Har)(supra), it has been held by the Full Bench of this Court as under (at pp. 320321 of Cri LJ).

"In my opinion, the ratio of Laxmi Narain Tandon's case, (1976 Cri LJ 547 )(SC) (supra) did not warrant the view which this Court in Ramesh's case, (1979 Cri LJ (NOC) 87) (supra) and Bombay High Court in Shankar of Shankar Vilas Hindu Hotel's case (1977 Cri LJ 1807) (supra) had taken. The learned Judges who decided those cases, it appears, merely focussed their attention upon the ratio of that decision in so far as it related to the meaning of the expression 'store' and did not advert to the view expressed by their Lordships in regard to the meaning of the word 'sale'. Their Lordships in that case held, as

already discussed above, that the articles of food of which the sample had been taken in that case were to be used in preparation of other food articles which were intended to be sold and, therefore, the said articles of food kept in store satisfied the definition of the expression 'store' given by their Lordships in the earlier part of the judgment, their Lordships set aside the acquittal and remitted the case for retrial. I am, therefore, of the view that Ramesh's case (supra), Om Parkash's case, (1983 (10) Cri LT 107) (Punj and Har) (supra), Ramesh Kumar's case (1982 (9) Cri LT 377) (Punj and Har) (supra). Sewa Ram's case, (1982 (9) Cri LT 378) (Punj and Har) (supra) and Shankar of Shankar Vilas Hindu Hotel's case (supra), with respect, do not lay down the correct law and, therefore, these decisions, excepting Shankar of Shankar Vilas Hindu Hotel's case, (1977 Cri LJ 1807) (Bom) (supra), are hereby overruled and in any case these decisions and the view expressed by the Supreme Court in Laxmi Narain Tandon's case (1976 Cri LJ 547) (supra) in regard to the meaning of the word 'store' would be of no avail as would be presently shown in cases arising after 1-4-1976.

It appears that construction placed an the word 'store' used in Section 7 by their Lordships in Laxmi Narain Tandon's case (supra) ran counter to the legislative intent and it was for that reason that by the amending Act the Legislature not only added the following explanation to Section 7 but also added "or stored for the manufacture of any other article of food for sale" in sub-section (2) of Section 10 which referred to the sample taking powers of the Food Inspector:

"Explanation : For the purposes of this section a person shall be deemed to store any adulterated food or misbranded food or any article of food referred to in clause (iii) or clause (iv) or clause (v) if he stores such food for the manufacture therefrom of any Article of food for sale."

In view of the above, the construction placed by their Lordships in Laxmi Narain Tandon's case (supra) on the expression 'store' used in Section 7 would have no relevance to cases arising after 1st April, 1976, the date from which, inter alia, the aforesaid amendment of Sections 7 and 10 had become operative.

8. After hearing the learned counsel for the parties, we are of the opinion that the Full Bench judgment of this Court in Budh Ram's case (1985 Cri LJ 311) (supra) is fully applicable to the facts of the present case and the learned Sessions Judge, Karnal, has erred in acquitting the respondent.

9. The learned counsel for the respondent has argued that report Exhibit PD of the Public Analyst is silent whether the sample was thoroughly shaken and the milk was stirred before conducting the analysis to come to the conclusion that the sample of milk was adulterated as there was a deficiency of 23.5 per cent. of milk-solids-no-fat contents in the sample of milk purchased from the respondent. The learned counsel further argued that no data is available on the record to indicate whether addition of preservatives to the sample milk had the attribute of preserving it in the shaken and mixed form and for the purpose of maintaining its accurate trustworthiness; that everything seems to have been left to the Public Analyst; that the report Exhibit PD has not made the Court any wiser whether the contents of the sample were partially or wholly consumed in the analysis and whether shaken before hand to make it consistent in its constituents; that it may be that the upper layer of the milk alone was examined, resulting in the high percentage of milk fat and low percentage of milk-solids-no-fat; that how else can such high percentage of milk fat otherwise be accountable; and that doubt having crept in the report of the Public Analyst, its benefit must necessarily go in favour of the respondent. In support of his argument, the learned counsel for the respondent has relied upon a Single Bench judgment of this Court in Sultan v. The State of Haryana, 1982 Chand LR (Cri) 102 : (1981) 2 FAC 116, which has been overruled by a Division Bench judgment of this Court in State of Haryana v. Harpat, (1982) 2 FAC 397. The Division Bench in Harpat's case (supra) has held :--

"With great respect we differ from the above view. In that case, the learned Single

Judge looked at the report with the impression that the Public Analyst did not shake or stir the sample before conducting its analysis, which in our view is not correct. The tests carried out by the Public Analyst are recognized tests. The Public Analyst being a technical man must shake and stir the sample before he conducts its analysis. It seems that the Full Bench decision in Teja Singh's case, (1976 Cri LJ 1648) (Punj and Har) (supra) was not brought to the notice of the learned Judge. The standards of various constituents of milk have been prescribed under the Act and even if there is negligible or marginal devitation from the prescribed standards laid down by the Rules, this cannot be ignored. Moreover, more milk fat than the prescribed standard is also adulteration as it can be achieved by some other dubious means by adding some sort of cheap oil into the milk. What is to be seen in these cases is whether the different constituents of the milk are in accordance with the standard prescribed under the Rules. If the constituents are not in accordance with the prescribed standard, the only conclusion which can be derived is that the milk is substandard. The view taken in Sultan's case (supra) is, therefore, overruled."

10. The learned counsel for the respondent has further argued that, since the present case against the respondent was instituted in 1983 and the appeal against the acquittal of the respondent remained pending in the High Court for 5 years, therefore, a lenient view should be taken against the respondent while awarding the sentence. We do not find any merit in this contention, because the minimum sentence for the offence, provided in the Act, is 6 months and a fine of Rs. 1000/-.

11. In view of the above discussion, the appeal is accepted; the judgment of the learned Sessions Judge, Karnal, dated 3-6-1986, is set aside; and Lal Singh respondent is convicted under Section 16(1)(a)(i) of the Act and he is sentenced to undergo rigorous imprisonment for 6 months and to pay a fine of Rs. 1000/- and, in default of payment of fine, to undergo further rigorous imprisonment for 3 months.

Appeal Allowed