SUGHAR SINGH Vs. STATE OF U.P.

JUDGEMENT

(1.) On 6th Nov., 1982 at about 10 A.M. revisionist Sughar Singh was carrying milk in a can hung on a cycle. Food Inspector apprehended him and he disclosed that the milk was mixed milk. Food Inspector purchased sample of milk from the revisionist and after complying with the procedure a phial of milk was sent to the public analyst who found that the milk had 5.6% fat against 4.5% prescribed and 7.7% non-fatty solids against 8.5% prescribed. Learned Magistrate found the milk adulterated and convicted the revisionist with offence under Sec. 7/16 of the Prevention of Food Adulteration Act and sentenced him to Rigorous Imprisonment for 11/2 years and fine of Rs. 1500.00. In appeal it was inter alia argued that the Food Inspector did not shake or stir the milk before purchasing the sample and so the sample cannot be said to be homogeneous or representative. Hence, the result was that although the aggregate of fat and non-fatty solids in the milk was above prescribed standard, yet the non-fatty solids were marginally deficient. Learned lower appellate court took the view that since the milk was being taken on the cycle, it was already stirred and there was no occasion for the Food Inspector to stir or shake it again. The learned lower appellate court dismissed the appeal of the revisionist in toto.

(2.) Against this, revisionist came to this Court in this revision which was admitted on the point of sentence only. In view of the law laid down in the case of Narendra Singh Vs. State of U.P., Citation not given when there is a manifest defect in the proceedings despite the fact that the revision has been admitted on the point of sentence only, if the conscience of the Court is shocked, Court can interfere on merits of the conviction also. It is well settled now that for giving correct result sample of milk must be homogeneous and representative. When there are chances of milk being churned and fat coming on the top it is necessary that before taking the sample the Food Inspector should shake and stir the milk, otherwise she sample would not be homogenous and representative. In the case of Natar Swasth Adhikari Vs. Saheb Singh, 1982 FAC (1) 300 sample of milk was taken in the middle of October. Milk was being carried in a can hung on cycle. There was no evidence that before taking the sample the milk of the can was fully shaken or stirred. In these circumstances, inference was drawn that possibility of sample having been taken from the top of the milk could not be ruled out. When the milk is in can hung on a cycle, the milk is not only stirred but also churned and In that process that fat may come on the top. View of the learned lower appellate court that stirring or shaking of the milk was not required is against the law settled by this Court and common sense. The defect is manifest and shocks the conscience of the Court.

(3.) Hence, disposing of this revision on merits of conviction. I hold that since the sample taken by the Food Inspector was not homogeneous and representative, no inference can be drawn that the milk was adulterated.