STATE OF HARYANA Vs. BANWARI LAL

JUDGEMENT

(1.) BANWARI Lal respondent was tried under section 7 (i) read with section 16 (1) (a) (i) of the Prevention of Food Adulteration Act, 1954 (hereinafter referred to as 'the Act' ). He was convicted and sentenced by the Judicial Magistrate Ist Class, Fatehabad. In appeal, his conviction was set aside by the Additional Sessions Judge, Hisar, mainly on the ground that the prosecution failed to prove that the article of food Haldi powder in this case, had been properly mixed before taking the sample. In coming to this conclusion, the lower appellate Court relied on two Single Bench decisions in Charanji Lal v. The State of Punjab (1983) 10 Cr. L. T. 157, and Sham Sunder v. The State of Haryana, 1986 (1) C. L. R. 120, and sought to distinguish a Division Bench decision to contrary in State of Haryana v. Hukam Chand 1984 F. A. J. 198. The State preferred an appeal against the acquittal, which came up for motion bearing before a Division Bench consisting of J. S. Sekhon and S. S. Rathor, JJ. The learned Judges pointed out that the Division Bench decision in Hukam Chand's case (supra) related to sample taken from Atta which was lying exposed to dust, and expressed a doubt whether the law laid down therein i. e. in Hukam Singh's case, applied where the sample of food article was taken from a proper container. In the opinion of the Bench, the point kept arising frequently and needed to be authoritatively decided by a larger Bench. The question referred is as follows :" whether mixing up of the Haldi powder or wheat flour (Atta) to make it homogeneous before taking its sample is required under the provisions of the Act and the Rules framed thereunder ?"

(2.) WE have heard Mr. S. S. Goripuria, Assistant Advocate-General, Haryana, for the appellant, and Shri D. S. Bali, Senior Advocate, for the accused.

(3.) IT may be stated at the outset that there is no provision in the Act or the Rules that the food article must be stirred before taking the sample. As a result of case law, however, it has been held that in case of milk, the same must be stirred to make it homogeneous before taking the sample. In Food Inspector, Municipal Corporation, Baroda v. Madan Lal Ram Lal Sharma, A. I. R. 1983 S. C. 176, it was observed that in milk and milk preparations, including curd, it was distinctly possible that the fact settled on the top and in order to find out whether the milk or its preparation, such as, curd had the prescribed content, the sample must be homogeneous and representative one so that the analysis could furnish reliable proof of the nature and content of the article of food under analysis. It was, therefore, pointed out that churning is one of the methods of making the sample homogeneous and representative.