JAI BHAGWAN Vs. STATE OF HARYANA

JUDGEMENT

(1.) GOVERNMENT Food Inspector, Thanesar, took sample of skimmed milk from petitioner Jai Bhagwan on 20.2.1982 in the presence of Dr. V.K. Dogra and Gurdial Singh. It was divided into three equal parts and sealed. One of the those parts was sent to the Public Analyst, Haryana, Chandigarh, who, vide report Exhibit PD found the same to be adulterated-milk solids not fat being 12% deficient of the minimum prescribed standard. Consequently, Jai Bhagwan was prosecuted and on trial was convicted by Chief Judicial Magistrate, Kurukshetra vide his judgment dated 23.8.1984. He was sentenced to undergo rigorous imprisonment for six months-as well as to pay a fine of Rs. 1,000/- in default of payment of which fine, petitioner was directed to undergo rigorous imprisonment for a further period of six months. Appeal preferred by him before Sessions Judge, Kurukshetra was dismissed. vide his judgment dated 20.4.1985. Both conviction and sentence were maintained.

(2.) THE main point urged before me is that the product i.e. skimmed milk was not made homogeneous before taking of the sample for which reason it cannot be said to be representative of the whole. Perusal of the record has revealed that prosecution has examined only two witnesses with regard to taking of the sample, namely, Food Inspector C.L. Sikri (PW-1) and Dr. V.K. Dogra (PW-2). Both of these witnesses are completely silent with regard to stirring or mixing of the skimmed milk in the can before taking of the sample. In the absence of any evidence with regard thereto, by no stretch of imagination it can be inferred that the product was made homogeneous. Admittedly the quantity of the milk in the can/drum at the time of taking of the sample was 20 litres. Out of that only 660 militaries of that commodity was purchased as sample which was divided into three equal parts. Keeping in view the proportion, it was incumbent upon the Food Inspector to make the product homogeneous without which it cannot be treated as a representative sample and benefit for the same has to go to the accused. It is a matter of common knowledge and it by now stands settled by the Courts that in milk and milk preparations it is distinctly possible that the fat settles on the top and in order to find out whether the milk or its preparation has prescribed content, the sample must be homogeneous and representative so that the analysis can furnish reliable proof of nature and content of the article of food under analysis. Stirring is usually done for the purpose which is singularly missing in this case.

(3.) FROM what has been discussed above, it cannot be said that the Food Inspector performed his duties appropriately and in accordance with the accepted rules of taking sample, benefit of which must go to the accused. Sample taken not being representative of the whole, particularly when the commodity is such which being liquid has a tendency of its constituents settling down and which recognisedly contains various constituents having different specific gravity and weight, it would not be safe to conclude that article of food in possession of the petitioner at the relevant time was adulterated. The prosecution under the circumstances cannot be said to have brought home the guilt to the accused beyond all realms of doubt. This revision petition is, therefore, accepted conviction and sentence awarded by the Courts below are set aside and instead petitioner Jai Bhagwan is acquitted of the charge against him. Fine, it realised, be refunded to the petitioner. Petition accepted.