If milk of two cattle is mixed then, it is no where clear that what was the proportion of mixing of such milk and therefore, the accused must be given a benefit that the lowest standard given for a particular cattle shall be accepted because if mixed milk contains more percentage of that milk then, that percentage may be applied. In the present case, fat percentage is the lowest in the goat milk i.e. 3.0%, whereas the lowest percentage of solid not fat is 8.5%, which is taken from the standard of the cow milk. If the standard of the present mixed milk is examined then, it is apparent that percentage of fat was proper, whereas the percentage of solid not fat was less. If milk is adulterated then, generally, it can be adulterated by 3-4 methods. Firstly, water may be added to the milk, secondly, the cream may be removed from the milk and thirdly, extra starch etc. may be added to make the milk thick. In case of adding water, percentage of fat as well as percentage of solid not fat should be reduced. If cream is removed then, percentage of fat shall be reduced and if some extra material is added then, percentage of fat shall remain same and percentage of solid not fat shall be increased. In the present case, percentage of fat was 3.2% i.e. slightly higher than the standard and therefore, it cannot be said that the milk was adulterated by the aforesaid three means. The public analyst has given its report that milk was adulterated because solid not fat was found 5.78%, which was below then the standard of 8.5% but, the fat percentage in the milk was upto the mark.
IN THE HIGH COURT OF MADHYA PRADESH
Decided On: 22.04.2013
Appellants: Bharat Singh
Vs.
Respondent: State of Madhya Pradesh
Vs.
Respondent: State of Madhya Pradesh
Hon'ble Judges/Coram:N.K. Gupta , J.
Citation: 2014(4)Crimes337(M.P.), 2015(2)Crimes57(M.P.), 2014 FAJ 584 (M.P.)
1. The applicant was convicted for the offence punishable under Section 7(1) read with Section 16(1)(a)(i) of the Prevention of Food Adulteration Act, 1954 (hereinafter it will be referred to as the 'PF Act') vide judgment dated 16.10.1996 passed by the learned Chief Judicial Magistrate, Raisen (Shri U.C. Jain) in criminal case No. 451/1990 and sentenced with 6 months' rigorous imprisonment with fine of Rs. 1,000. In criminal appeal No. 169/1996, the learned Sessions Judge, Raisen vide judgment dated 11.6.1999 dismissed the appeal in toto. Being aggrieved with judgments passed': by the learned both the Courts below, the applicant has preferred the present revision. The prosecution's case, in short, is that, on 18.5.1990, the Food Inspector Shri S.C. Gupta (PW 1) went to take a round in the city of Raisen. He found that the applicant had three cans of milk and he was selling the milk to one Bhanu Prakash Agrawal, the proprietor of Roshan Sweet House. The applicant kept the mixed milk of cow and goat in one can and food inspector proposed him to take a sample from that can. The Food Inspector purchased 750 ml. of mixed milk of cow and goat in a utensil and divided it into 3 parts in 3 dry, clean and odorless glass bottles. Twenty drops of formalin was added in each part of the sample and thereafter, bottles were closed by corks. The bottles were duly packed and slips given by the local health authority were affixed" on those bottles. Various memos were prepared. One part of the sample was sent to the public analyst, whereas, other two parts of the sample were deposited with the local health authority, Raisen. The public analyst vide its report, Ex. P/16 in-formed, the local health authority that the sample was adulterated. Sanction of prosecution was obtained from the Deputy Director, Food and Drug Administration, Raisen and a complaint was filed against the applicant before the trial Court. A notice under section 13(2) of the PF Act was also sent but, the applicant did not apply for re-examination of the sample from the Central Food Laboratory.
2. The applicant abjured his guilt. He did not take any specific plea in the matter. However, one Hazari Lal (DW 1) was examined as a defence witness.
3. The learned Chief Judicial Magistrate, Raisen, after considering the evidence adduced by the parties, convicted and sentenced the applicant as mentioned above, whereas the appeal filed by the applicant was dismissed in toto.
4. I have heard the learned counsel for the parties.
5. The learned Senior Advocate for the applicant has submitted that in article A. 11.1.11 of Appendix 'B' of the Prevention of Food Adulteration Rules, no standard is prescribed for the mixture of cow and goat milk and therefore, it is not permissible by interference to read in the rules, something which is not there. Learned Senior Advocate has placed his reliance upon the judgment passed by the Single Bench of the Allahabad High Court in case of Lallu Ram v. State of Uttar Pradesh MANU/UP/1762/1997 : (1980) 1 Prevention of Food Adulteration Cases, 391, and therefore, it is prayed that the applicant may be acquitted.
6. After considering the submissions made by the learned counsel for the parties, only one question is to be decided in the present case, as to whether the sample was found adulterated or not. In article A. 11.1.11 of Appendix 'B', the standard for cow milk is fixed for Madhya Pradesh that the percentage of fat be not less than 3.5% and percentage of solid not fat should be 8.5%, whereas percentage of goat milk is fixed to be 3.0% for fat contents and 9.0% for solid not fat contents. There is no percentage fixed in the standard for mixed milk of cow and goat. However, the percentage of mixed milk is fixed to be 4.5% for fat contents and 8.5% for solid not fat contents. The percentage for mixed milk appears to be fixed for milk of buffalo mixed with milk of other cattle, otherwise, if fat percent was less in cow milk as well as in the goat milk then, fat percent of mixed milk cannot be higher than the fat percentage of milk for aforesaid cattle. Therefore, the standard fixed for mixed milk cannot be applied in the present case because it was not for the milk of goat mixed with milk of other cattle.
7. If milk of two cattle is mixed then, it is no where clear that what was the proportion of mixing of such milk and therefore, the accused must be given a benefit that the lowest standard given for a particular cattle shall be accepted because if mixed milk contains more percentage of that milk then, that percentage may be applied. In the present case, fat percentage is the lowest in the goat milk i.e. 3.0%, whereas the lowest percentage of solid not fat is 8.5%, which is taken from the standard of the cow milk. If the standard of the present mixed milk is examined then, it is apparent that percentage of fat was proper, whereas the percentage of solid not fat was less. If milk is adulterated then, generally, it can be adulterated by 3-4 methods. Firstly, water may be added to the milk, secondly, the cream may be removed from the milk and thirdly, extra starch etc. may be added to make the milk thick. In case of adding water, percentage of fat as well as percentage of solid not fat should be reduced. If cream is removed then, percentage of fat shall be reduced and if some extra material is added then, percentage of fat shall remain same and percentage of solid not fat shall be increased. In the present case, percentage of fat was 3.2% i.e. slightly higher than the standard and therefore, it cannot be said that the milk was adulterated by the aforesaid three means. The public analyst has given its report that milk was adulterated because solid not fat was found 5.78%, which was below then the standard of 8.5% but, the fat percentage in the milk was upto the mark.
8. If milk is brought from a village with help of a bicycle then, due to uneven roads, a natural churning takes place and if the sample contains fat granules floating on the surface then, in that part of sample, fat percentage may be higher, whereas solid not fat percentage would be less. The present sample shows such type of results which indicates that the Food Inspector did not make the milk homogeneous before taking the sample and therefore, the sample does not represent the entire quantity of milk. Hence, by such a report given by the public analyst, it cannot be said that the sample was adulterated.
9. On the basis of the aforesaid discussion, it is apparent that it cannot be said beyond doubt that the sample was adulterated and therefore, the applicant could not be convicted for the offence of adulteration. The judgments passed by both the Courts below appear to be perverse and therefore, it is a fit case in which interference is required from the side of this Court, by way of a revision. Consequently, the present revision filed by the applicant is hereby allowed. The conviction as well as the sentence directed against the applicant for the offence punishable under Section 7(1) read with Section 16(1)(a)(i) of the Prevention of Food Adulteration Act is hereby set aside. The applicant is acquitted from the aforesaid charges. He would be entitled to get the fine amount back, if he has deposited the same before the trial Court.
10. The applicant is on bail. His presence is no more required before this Court and therefore, it is directed that his bail bonds shall stand discharged. A copy of the order be sent to the trial Court as well as to the appellate Court alongwith their records for information and compliance.
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