Food Inspector v. Kuldeep Singh

dated
12.04.2012 rendered by the learned ACMM-II,Patiala House Courts, New Delhi in ease no.184/2003, whereby the respondent/accused has been acquitted in the complaint preferred by the complainant/ Delhi
Administration through Food Inspector under Section 2(i-a)(a)&(m)ofPFA
Act,1954 punishable under Section 16(l)(a)r/w section 7ofPFA Act.
The sample in question was cows milk. The public analyst vide his report dated 13.12.2002 found that it did not conform to the standard due to deficiency in Non Fatty Solids i.e. SNF. As opposed, the minimum prescribed percentage of8.5,the SNF found in the sample was 7.01%. The accused was, however, acquitted on the premise that the fat content in the
2017:DHC:8607 sample was found to be 5.9% against the minimum requirement of3.5% in respect ofcows milk. Thus,the total solids found in the sample was to the extent ofalmost 13% i.e. 5.9%+7.01%= 12.91%,which was more than the minimum requirement of 12%(milk fat- not less than 3.5% + SNF - not less than 8.5%= 12%).
The submission of Mr. Datta is that the total solids could not have been taken as the yardstick to determine whether the sample was adulterated or not. He submits that both the parameters offat content and SNF should have been met. In support of his submission, he has placed reliance on a decision ofDivision Bench ofthis court in Municipal Corporation ofDelhi
V. SriRam,1975 CriLJ 1071:ILR 1975 Del764,decided on 24.01.1975. In this case,the sample,like in the present case,was ofcows milk. Thesample was found to contain fat content of5% and other solids i.e. SNF of7.14%.
The Division Bench held that the milk that the accused sold as cows milk might be buffalo milk adulterated with water so that it could come up to the standard for fat(3.5%)and be deficient in non fat solid as it actually was.
The Division Bench in this decision,inter alia,held as follows:
"r/ze milk sold must satisfy the requirement of the Rulesfor milkfatand milksolid notfatseparately.Ifit docs notdo that it must be taken to he adulterated, because it is an article sold by the vendor which is not ofthe nature, substance or it demanded by the purchaser and is to hisprejudice or is not ofthe nature, substance or quality which itpurports or is represented to be or because its quality orpurityfall below theprescribedstandard.
(Prem Das v. State). An expert like a Public Analyst may commita mistake in his analysis butthe Courts make allowance only for a marginal error. If the deviation is within the reasonable experimental error the benefit of doubt may be reaped by the accused but where the deviation in the results from the prescribed standards is large and appreciable, the lo
Courtcannotgo outofits way to ignore the conclusions arrived at by the expert, and enter the realm ofconjectures tofish out an alibitfor the accused. The milksold by SiriRam should have had8.5 minimum per cent milksolid notfat whereas it had 7.14 per cent of it. The deficiency was 1.36 per cent which could mean that the milk sold contained about 16per cent more of water than it should have had in its natural composition. This cannot be termeda border-line variation. The deficiency here is really substantial. In Babulal Hargovind Das v. TheState of
Gujarat (1972 F.A.C. 18) the Supreme Court upheld the conviction of the accused though the milk sold by him was deficientin non-fatsolids only to the extent ofI.Iper cent.Ifthe prescribed standard is not attained the statute treats thefood article in question, byfiction, as adulteratedfood though infact it is notadulterated(M. V. Joshi v. M. U. Shimpi and another,)
. In the case reported in Mela Singh Sohan Mai v. The
State(A.I.R. 1964 Punjab 332) , the milk was short in milk solids notfa't by.3per centstill it was taken to be adulterated.
In Bridges V. Griffin(1952 2K. B. 233)the milk had been sold in the same state in which itcomefrom the cow, it had not been directly tampered with and despite that the accused was convictedofadulteration because it was deficientinfat".
On the other hand, learned counsel for the respondent has sought to place reliance on another Division Benchjudgment ofthis court in the case ofMunicipal Corporation ofDelhi v. Altaf 1975 CriLJ 1073, decided on
17.01.1975. In this case, though the Division Bench held that the accused was guilty of selling adulterated article i.e. cows milk and was liable to be punished under Section 16(i-a)(l) read with section 7 of PFA Act, the
Division Bench heldVconsidering that the learned Magistrate had acquitted the accused -though not legally justified, since more than five years had elapsed since the commission ofthe offence, the order of acquittal should not be interfered with. Consequently,the appeal was dismissed.
1 1 Learned counsel submits that in the present case, the sample was drawn on 26.11.2002 and the acquittal of the accused took place on
12.04.2012 i.e. after9 years.
In view ofthe aforesaid,leave granted.
CrlA No ]S.2C..J2017 Admit. Let the appeal be registered and numbered. With the consent of parties,the appeal is taken up for hearing today itself.
In the present case,the sample in question was cows milk drawn on
26.11.2002. The complaint was preferred on 08.04.2003 and the accused was acquitted by the Trial Court on 12.04.2012 i.e. after 9 years. The present leave petition was preferred after the appellants appeal preferred before the Sessions Court has been returned on account of it not being maintainable. Thereafter,the present leave petition was preferred and it has remained pending since then.
Keeping in view.the aforesaid circumstances, though legally the impugnedjudgment cannot be sustained in view ofthe two decisions ofthe
Division Bench in Sri Ram (supra)and Altaf(supra), following the course adopted by the Division Bench m Altaf(supra),the appeal is dismissed.
The learned amicus representing the accused shall be entitled to his fee.
VIPIN SANGHI,J FEBRUARY 03,2017 sr