Sheo Raj vs State And Anr.
1991 Latest Caselaw 273 Del

JUDGMENT

V.B. Bansal, J.

(1) Sheo Raj s/o Majlis Singh was convicted under Section 7 read with Sec. 16 of the Prevention of Food Adulteration Act (hereinafter referred to as the Act) for having sold adulterated buffalo milk. He was also convicted under Sec. 7 read with Sec. 16 of the Act for having sold the buffalo milk without a license by a Metropolitan Magistrate, Delhi on 25th October, 1977. The learned Metropolitan Magistrate sentenced Sheo Raj to R.I. for two years with a fine of Rs. 2000.00 or in default to undergo further R.I. for six months for sale of adulterated milk. He was also sentenced to pay a fine of Rs. 500.00 or in default to undergo S.I. for six months for selling milk without license vide order dated 28th October, 1977 by the same Metropolitan Magistrate.

(2) Sheo Raj challenged his conviction and sentenced by way of filing an appeal in the sessions Court. The appeal was disposed of by an Addl. Sessions Judge, Delhi vide judgment dated 6th March 1979 upholding the conviction. However, the substantive sentence was reduced from two years to one year.

(3) Still not being satisfied Sheo Raj has filed this revision petition.

(4) Briefly stated the facts' leading to the filing of this revision petition are that on 125,1975 Food Inspector E. Samuel was accompanied by Food Inspector F. Dean and at about 5.45 P.M. they reached near Bank of Baroda, Model Town, Delhi. They found Sheo Raj selling milk having no license for the sale. Food Inspector disclosed his identity and expressed his intention of purchasing sample of buffalo milk for analysis. He found about five litres of buffalo milk in a bucket and purchased 660 ml. of milk against payment of Rs. 2.00 . The purchased milk was put by him in three dry and clean bottles. Eighteen drops of Formalin were added in each bottle which were thereafter fastened and sealed in accordance with the rules. One sample bottle was handed over by Food Inspector E. Samuel to Sheo Raj while another bottle was sent to the Public Analyst for analysis. The third bottle was kept by E. Samuel Food Inspector with him in his office in an almirah. Report dated 15th May, 1975 was received from Public Analyst by PW2 E. Samuel. Food Inspector F. Dean was examined as PW3 and Food Inspector Anand Singh was examined as PW4. The accused when examined under Sec. 313 Cr. P.C. admitted that he was a milk-seller and was keeping buffalos. He has, however, denied that on 12th May, 1975 he was having buffalo milk for sale or that he sold 660 ml. of buffalo milk to the Food Inspector for analysis. He has claimed that no notice was given to him but the Food Inspector had obtained his thumb impression. He has denied that after adding 18 drops of Formalin in each of the three bottles they were sealed but he admitted that one bottle was given to him. He did not know about the report received from the Public Analyst or the Director, Central Food Laboratory. He has claimed that he did not have any license nor was it required since he did not sell the milk. According to him he was carrying cow's milk to his house after having purchased it from the market but has been falsely implicated due to enmity with one Mool Chand. He examined two witnesses in his defense. The learned trial Court after hearing arguments convicted and sentenced the petitioner, as referred to above.

(5) I have heard Bawa Gurcharan Singh learned counsel for the petitioner and Shri P.R. Monga learned counsel for respondent no. 2. I have also gone through the records.

(6) Learned counsel for the petitioner has submitted that there has been inordinate delay on the part of respondent No. 2 in filing the complaint in Court and in getting the petitioner served. He has, thus, submitted that on account of this inordinate delay there has been further delay in getting the sample of milk analysed from the Director of Central Food Laboratory, Calcutta and this delay has adversely effected the petitioner. He has also submitted that on account of delay in getting the sample analysed from the Central Food Laboratory it would have got decomposed and the very fact that the sample sent to the Central Food Laboratory was found to be fit f&r analysis is clearly indicative of the fact that the sample was tampered with. He has, thus, submitted that these are sufficient grounds for giving benefit of doubt to the petitioner who as such is entitled to be acquitted. He has further submitted that the conviction of the petitioner for having sold adulterated milk without license cannot be sustained on account of he having been convicted for the sale of adulterated milk.

(7) Learned counsel for respondent no. 2 has, on the other hand, submitted that the sample bottle available with the Food Inspector was sent to the Central Food Laboratory, Calcutta at the instance of the petitioner when the seals were found to be intact and now it is not open to the petitioner to challenge the report received from the Central Food Laboratory. He has, thus, submitted that the report of the Central Food Laboratory being conclusive with regard to the sample being adulterated the petitioner has rightly been convicted. Prayer has, therefore, been made that the petition may be dismissed.

(8) I would first of all take up the question of conviction and sentence of the petitioner for having sold adulterated milk without a license. The law is well settled that when a person is convicted for an offence of sale of adulterated milk he cannot be convicted for the offence of selling the adulterated milk without a license inasmuch no license is required for the sale of adulterated milk. I find support for this view from the cases Municipal Corporation of Delhi v. Darshan Kumar and another 1980Cr. LJ. 86 and Municipal Corporation of Delhi v. Jawala Parshad and others 1985 Cri. L.J. 1455. In these circumstances, I hold that the conviction and sentence of the petitioner for having sold adulterated milk without license cannot be sustained and, thus, have to be set aside.

(9) According to the prosecution story the sample milk was taken on 12th May, 1975 and sample bottle was received in the office of the Public Analyst on 13th May, 1975 and it was analysed on 14th May, 1975. The report of the Public Analyst Ext. Pe is dated 15th May, 1975. The complaint was filed in the Court of Metropolitan Magistrate on 68.1975. The accused was served for 4th October, 1975 on which date he appeared in Court. The petitioner moved an application dated 5th June, 1976 for sending the sample bottle available with fie Food Inspector to the Central Food Laboratory for analysis in terms of Sec. 1 -" (2) of the Act. Food Inspector produced the bottle available with him in Court on 1 1.6 1976 when it was returned to him with a direction to produce the same on the next date, i.e. 29th October, 1976. The bottle was produced by the Food Inspector on 7th July, 1976 when the case was again adjourned to 12th July, 1976 and the sample bottle was again returned to the Food Inspector. It was only on 12th July, 1976 that the trial Court directed the sending of the bottle to the Central Food Laboratory for analysis after recording the statement of the Food Inspector that the seals and fastening of the sample bottle were intact and that the bottle was squarely fastened. Statement of the petitioner was also recorded to the effect that his thumb impression was available on the bottle.

(10) The next question for consideration at this stage is as to what is the normal period during which the sample of milk should be analysed and after what period the sample is likely to decompose. Case Municipal Corporation of Delhi v. Ghisa Ram is a clear authority on this point, la the said case Supreme Court was considering the statement of Dr. Sat Parkash who had stated that in the case of food article, like curd, it starts undergoing changes after a week. If kept at room temperature, without a preservative, but remains fit for analysis for another 10 days thereafter. He had also opined that if the food sample is kept in a refrigerator, it will preserve its fat and non-fatty solid contents for purposes of analysis for a total period of four weeks but if preservative is added and the sample is kept at room temperature, the percentage of fat and non-fatty solids contents for purposes of analysis will be retained for about four months. He has further opined that if it is kept in a refrigerator after adding the preservative, the total period which may be available for making analysis, without decomposition, would be six months. This statement of Dr. Sat Parkash was approved by the Supreme Court.

(11) As already referred to the sample bottle produced by the Food Inspector was sent to the Central Food Laboratory where from report dated 31st July, 1976 was received which indicated that the sample was fit for analysis and the buffalo milk did not conform to the standard prescribed under Prevention of Food Adulteration Rules and, thus, was adulterated.

(12) Learned counsel for the petitioner has submitted that the bottle sent for analysis, in fact, had leaked and so it cannot be said that the contents had not been tampered with before the same was analysed in the Central Food Laboratory. In this regard it would be convenient to refer to the statement of Food Inspector E. Samuel recorded on 12th July, 1976 when he had stated that the bottle was not leaking and that its seals and fastening were intact. E. Samuel was cross-examined on 5th June, 1976 when he had stated that particulars written on the bottle given to the accused were noted on all the bottles and since the bottle had leaked and its wrapper got milk soaked, some of its particulars were not legible. It is, thus, clear that we have two statements of the Food Inspector, one made on 5th June, 1976 and the other on 12th July, 1976, and both are contradictory to each other. I may also note that there is no finding by the learned trial Court that the sample bottle had been examined and found to be properly fastened, sealed and not leaking. It is also worth-noting that after the making of an application for sending the sample with the Food Inspector the bottle was allowed to be kept by the Food Inspector on different dates. It is the admitted case of the parties that the petitioner is illiterate and he has only been affixing his thumb impression. The statement of the petitioner recorded on 12th July, 1976 is only to the effect that the bottle bears his thumb impression. It is difficult for anyone to identify one own's thumb impression and especially by an illiterate person, to these circumstances, it cannot be said with certainty that the sample bottle produced by the Food Inspector was not tampered with by anyone during the period it remained with him. It is the admitted case of the complaint that the sample bottle as also the seal used by E. Samuel on the sample bottles remained with him throughout and the sample was kept by him in the almirah in his office and, thus, not in any refrigerator.

(13) Learned counsel for respondent no. 2 has not been able to explain as to how the contents of the bottle remained fit for analysis after such a gap when it was not kept in any refrigerator. Considering all these facts, the possibility of the sample having been tampered with cannot be ruled out. I find support for this view from the case Criminal Revision No. 327 of 1967 Gian Chand v. State decided on 6th November, 1969. in the said case also the seal remained with the Food Inspector and the sample when analysed was found to be fit for analysis from which a conclusion was arrived at that the possibility of the sample having not been tampered with could not be ruled out. In fact, there was a specific finding that the sample milk having not decomposed was a clear indication of the fact the sample was changed. There is no doubt that finality is attached to the report of the Director, Central Food Laboratory. However the same cannot be said to be final or conclusive with regard to the sample bottle having been kept in safe custody and that it was not tampered with by anyone. It has to be proved independently that sample bottle was not tampered with. Reference in this regard can be made to the case Rattan Lal v. The State 1974 Prevention of Food Adulteration Cases 245 and Municipal Corporation of Delhi v. 0m Parkash 1975 (1) Prevention of Food Adulteration Cases 105.

(14) Considering all these facts, I am clearly of the view that the genuineness of the sample produced before the trial Court by the Food Inspector is not beyond doubt especially when a Food Inspector has admitted that since the bottle had leaked and its wrappers had got milk soaked some of the particulars written on the label of the bottle were not legible. On this account the petitioner is entitled to get benefit of doubt.

(15) In view of my aforesaid discussion, the revision petition is allowed. Conviction and sentence of the petitioner recorded by the two Courts below are set aside. Giving him the benefit of doubt, the petitioner is acquitted. He is on bail. His bail-bond stands discharged. Fine, if paid, shall be refunded.