Decided on August 02,1991

Deepak Sood Respondents


BHAWANI SINGH, J. - (1.) THROUGH this appeal the State has challenged the acquittal of the accused Deepak Sood by the Sessions Judge, Shimla in Criminal Appeal No. (sic) of 1986 decided on May 23, 1987.
(2.) THE accused was prosecuted under Section 16(1)(a)(i) read with Section 7 of the Prevention of Food Adulteration Act, 1954 (hereinafter referred to as the 'Food Act') and was sentenced by the trial Court to 6 months simple imprisonment and a fine of Rs. 1,000/-. This judgment was challenged before the Sessions Judge, Shimla who by the impugned decision, allowed the appeal and set aside the trial Court's judgment. It is this judgment which has been assailed by the State through this appeal. Shortly stated, the prosecution case is that on March 8, 1984 at about 12 a.m. Food Inspector Yudhistar Lal visited the shop of the accused located in Lakkar Bazar, Shimla under the name and style of M/s. New Standard Sweet Shop and took sample of curd from Kundi to the extent of 660 gms cow's milk against payment of Rs. 2.40. This was done in the presence of Amarjit Bedi (PW-2). The sample was divided in 3 parts and then put into 3 bottles after adding requisite preservative. The bottles were then closed, wrapped and sealed in accordance with the procedure. Thereafter, one of the three samples was sent to the Public Analyst for analysis while the other two parts were deposited with the Local Health Authority. After analysis, the Public Analyst reported that the sample was adulterated since the percentage of milk fat was deficient by 030% and milk solids not fat 8.2% than the minimum prescribed standard. After serving notice under Section 13(2) of the Food Act, the proceedings for the prosecution of the accused were launched in the trial Court. It was during this time that the second part of the sample was sent to the Director, Central Food Laboratory, Ghaziabad. Here, the milk fat was 3.1% and milk solids not fat 11.1%. According to this report, the sample did not conform to the standard of curd of cow's milk for Himachal Pradesh and the milk fat was also less than the minimum prescribed standard. As already noticed, the trial Court recorded the conviction of the accused and sentenced him for the commission of the offence. Before the first appellate Court, again the question was whether the findings of the trial Court that the sample of the curd was homogenous on account of stirring before taking of the sample. After going through the statements of witnesses produced by the parties, the trial court came to the conclusion that the sample of the curd was homogenous and the argument that it was not so was therefore, rejected. However, the first appellate Court again examined this question and came to the contrary conclusion with the result that the accused was acquitted on this ground.
(3.) THE learned Counsel for the parties reiterated the submissions during the course of arguments in this case. Mr. D.D. Sood submitted that the sample of curd was not homogenous nor any attempt was made to make it so by the Food Inspector before the sample was taken. In order to sustain this submission, reference to the statement of Amarjit Bedi (PW-1) was made. This statement has been examined. True it is that this witness has been declared hostile but on this question he has specifically stated that the curd was straight way taken from the Kundi and poured into the bottles. During cross-examination by the counsel for the accused, the same statement has been adhered to. The accused has also stated that although there was an electricity churning machine affixed in the shop, it was not made use of by the Food Inspector before the sample was taken. There is no reason to disbelieve this witness on this aspect of the case. Making the sample homogenous for the purpose of analysis is necessary. For taking the sample of curd the proper method is that curd should be divided vertically and the entire component should be taken, churned properly and then divided into three parts so that it becomes homogenous and a representative sample. The object is to exclude the possibility of accumulation of layers of non-fat milk solids or milk solid fats in a predominate manner in one sample out of three samples collected in 3 different bottles. To some extent, this variation is clear from the two reports in this case. The view I am taking finds support from 1983(1) SCC 135 : (Food Inspector, Municipal Corporation, Baroda v. Madan Lal Ramlal Sharma); 1984(1) F.A.C. 169 (State of Haryana v. Assa Ram); 1984(2) F.A.C. 205 (Raj Pal v. The State of Punjab); 1986(2) F.A.C. 226 (Raju v. State) and 1991 Cri. L.J. NoC 18 (Orissa); Ramachandra Sahu v. State of Orissa). I, therefore, hold that in the present case the curd sample is not a representative sample at all.;

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