BABU RAM Vs. STATE OF PUNJAB

JUDGEMENT

(1.) This revision petition is by Babu Ram who has been convicted under Section 16(1)(a)(i) of the Prevention of Food Adulteration Act, 1954. He was sentenced by the trial Court to six months' rigorous imprisonment and a fine of one thousand rupees or, in default, further rigorous imprisonment for one and a half month. Half the fine, if realised, was ordered to be paid to the Municipal Committee, Patiala. On appeal by the convict the learned Sessions Judge upheld the conviction but reduced the sentence to imprisonment till the rising of the Court and a fine of seven hundred rupees, or in default, further rigorous imprisonment for six months.

(2.) It is alleged that on 3rd October, 1968, the Food Inspector, Ram Mohan Roy, PW.1, inspected the premises of the petitioner who is running a Halwai shop and found in his possession curd contained in an earthen pot (Koonda), but it was not indicated as to from which milk the curd had been prepared. The Food Inspector is said to have purchased twenty-four ounces of the curd against cash payment and to have put the same in three separate bottles. The bottles were labelled and sealed after adding sixteen drops of formalin in each bottle. One sealed bottle was given to the petitioner, one sent to the Public Analyst and the third was retained in the office of the Food Inspector. The sample was despatched to the Public Analyst by the Public Health Officer on 7th October, 1968, and the report of the Public Analyst is dated 18th October, 1968, which purports to have been signed on 15th October, 1968, suggesting thereby that the analysis was done on 15th October, 1968 i.e., after about twelve days. According to this report, milk fat found in the sample was 5.9 per cent whereas milk solids not fat were 8.5 per cent. Curd (Dahi) is required under Rule A.11.02.04 of the Prevention of Food Adulteration Rules 1955 (hereinafter called the Rules) to have the same minimum percentage of milk-fat and solids as the milk from which it is prepared. It is further enjoined that "where dahi or curd, other than skimmed milk dahi, is sold or offered for sale without any indication of class of milk, the standards prescribed for dahi prepared from buffalo milk shall apply". Standard for different classes and designation of milk is stated in rule A. 11.0.1.11 and buffalo's milk in the Punjab must possess a minimum of 6 per cent of milk fat and 9 per cent of milk solids not fat. Cow's milk is required to have milk fat of 4 per cent and milk solids other than fat 8.5 per cent. Proceedings on the assumption that the curd was made from buffalo's milk it was deemed to be an adulterated food product within the meaning of Section 2, sale or storage for sale of which is prohibited. The quality of the dahi thus fell below the standard prescribed for buffalo's milk as fat was 2 per cent deficient and milk solids not fat were 6 per cent deficient. A complaint was filed with the trial Magistrate and the etitioner was consequently tried. Two witnesses, namely, Ram Mohan Rai, Food Inspector PW.1 and Harbans Lal PW.2 were produced in support of the prosecution case. Ram Mohan Rai deposed to the purchase of the curd and putting the samples thereof in the sealed bottles. In the statement of this witness thee is no explanation as to why the sample was not despatched till 7th October, 1968, or the same not examined by the Public Analyst till 15th of the same month. It is also not known as to where the sample containing the curd was kept so as to ensure that there was no deterioration of the element of fat contained therein during the period of its being taken into possession and its examination by the Public Analyst. It was the duty of the prosecution to have told the Court where and under what temperature the sample of the curd was kept till it was analysed by the Public Analyst. No doubt, a preservative was put in the bottle but the strength of that preservation is not indicated though as stated in rule 20 it is necessary that the preservative in such a case must contain about forty per cent formaldehyde in aqueous solution in the proportion of 0.1 ml. (2 drops) for 25 ml. or 25 grams. All these matters are necessary links in the chain of the prosecution case and a duty was cast on the prosecution to prove every one of them before a conviction against the accused could be recorded. Harbans Lal PW.2 is only a witness about the sample being taken into possession by the Food Inspector and he states that some medicine was put in the bottles. He does not know what that medicine was and the only maaterial evidence thereon is that of the Food Inspector which is very perfunctory in the instant case. The petitioner indisputably held a licence to sell or store for sale or distribute cow's milk and to make preparations therefrom, but he did not indicate in the shop as to from what class of milk the curd had been prepared. In such a situation, dahi was presumed to have been prepared from a buffalo's milk and the whole prosecution case proceeded on that basis. The accused was examined at the close of the prosecution evidence under Section 342 of the Criminal Procedure Code but he was not asked any question as to whether he had prepared the curd from buffalo9's milk. The relevant question in this regard, as put to him by the trial Magistrate, reads as under :-

(3.) Moreover, the conviction is based on the evidence of witnesses referred to above, whose statements have been read to me by the learned counsel for the petitioner. I have already observed that the only material evidence is that of the Food Inspector and that, in my opinion, does not inspire confidence. The possibility of the fat element having been reduced, even if buffalo's milk was used, because of the delay involved in the analysis of the sample, cannot be ruled out.