CHHAJU RAM Vs. STATE OF HARYANA

JUDGEMENT

(1.) ON 22.8.1984, at about 6.30 a.m., the petitioner was allegedly found carrying 15 kgs. cow's milk in a drum for the purpose of sale at Railway Crossing, Rohtak Road, Jind. He was intercepted by Moti Ram, Food Inspector, PW.3 in the presence of Dr. R.P. Taneja, P.W.2. The petitioner was served with a notice Ex.PC in form VI and vide receipt Ex.PD, 660 Mls. of cow's milk was purchased by the Food Inspector as sample and the same was divided into three equal parts in dry and clean bottles. After adding 18 drops of formalin, the bottles was stoppered, securely fastened and then wrapped in a strong thick paper which was secured by means of paper slips and twine. Spot memo Ex.PE was prepared. One sealed bottle of the sample was sent to the Public Analyst, Haryana, Chandigarh and the two other bottles of sample were handed over to the local Health Authority, Jind. The report of the Public Analyst Ex.PF was received and it showed milk solids not fat was 21 per cent deficient of the minimum prescribed standard. This led to the prosecution of the petitioner. It was claimed in defence that the petitioner was a Sarpanch of the village and he made large number of complaints against the corrupt practice of the Food Inspector and, therefore, he was falsely implicated in this case and that the rules/procedure was not followed while taking the sample and that the petitioner was absolutely innocent. However, the learned trial Court dismissed the contentions of the petitioner and convicted him under Section 16(1)(a)(i) of the Prevention of Food Adulteration Act, 1954 and sentenced to undergo rigorous imprisonment for nine months and to pay a fine of Rs. 1,000/-. In default of payment of fine he was ordered to undergo further rigorous imprisonment for five months. In appeal filed by the petitioner, his substantive sentence was reduced from nine months to six months' rigorous imprisonment whereas the sentence of fine and in default thereof was maintained.

(2.) THE main contention of the learned counsel for the petitioner is that there was no averment made in the complaint Ex.PG filed by the Food Inspector that the milk in question was stirred or made homogeneous before the sample of milk was taken. It was due to that the sample milk was found to be deficient in milk solids not fat. In support of his contention, the learned counsel for the petitioner relied upon the authorities in State of Punjab v. Jagan Nath, 1987(1) RCR(Crl.) 5 : 1986(2) C.L.R. 479, State of Haryana v. Rameshwar, 1987(1) RCR(Crl.) 216 : 1987(1) F.C.A. 2 and State of Haryana v. Bhagwan Dass, 1987(2) F.A.C. 38 : 1987(1) RCR(Crl.) 214. In Jagan Nath's case (supra), it was held that "although it may not be necessary to mention the factum of making the sample of milk homogeneous for maintainability of the complaint, yet it would be open to the Court not to place implicit reliance on the evidence produced in respect thereof in the Court on the ground that in the light of the omission in the complaint this evidence could possible be an after-thought." This view is also taken up in catena of judgments of this Court. The learned counsel for the petitioner also argued that in such cases when only one of the ingredients regarding the standard prescribed is found to be disturbed in the report of the Analyst the presumption is that either the milk was not stirred properly or the cattle was not fat (fed ?) adequately and in such a situation benefit should go to the petitioner.

(3.) IN the case in hand the question that the milk was not properly stirred is material. The mere mention later on during the statement made by the Food Inspector that the milk was stirred is not in conformity with the allegations made in the complaint and is an attempt to make up the lapse later on. So in the given situation this court is of the view that the benefit of the fact that the milk was not actually stirred should go to the petitioner.