Sahib Singh vs U.T. Chandigarh

S.S. Grewal, J.—This Criminal Revision as well as Criminal Revision No. 800 of 1989 re: Jaswant Singh v. U.T. Chandigarh, are directed against the order of Additional Sessions Judge, Chandigarh, dated 28-8-1989 whereby the order passed by the Chief Judicial Magistrate, Chandigarh, dated 21-1-1988, convicting the petitioners u/s 16(1)(a)(i) read with Section 7 of the Prevention of Food Adulteration Act (hereinafter referred to as the Act) and sentencing them to undergo rigorous imprisonment for two years and to pay a fine of Rs. 1000/ - each and in default of payment of fine to undergo further rigorous imprisonment for six months was modified and only substantive imprisonment was reduced to rigorous imprisonment for one year. As common questions of law and fact are involved both these petitions shall be disposed of by one judgment.

In brief facts relevant for the disposal of this case are that on 21-3-1985, at about 4 p.m. Shri O.P. Gautam, Government Food Inspector accompanied by Mulkh Raj went to the shop run under the name and style of M/s Prima Sweets and Restaurant, S.C.F. No. 26, Sector 10D, Chandigarh, owned by Jaswant Singh petitioner. At that time Sahib Singh petitioner working in that establishment was found in possession of 15 Kgs. of standard boiled milk kept in a container (Patila) for sale. After disclosing his identity and serving notice, the Food Inspector stirred the contents of the container and purchased 700 M.L. of standard boiled milk from Sahib Singh petitioner on payment of Rs.3/-. Receipt in respect of the said payment was duly signed by Sahib Singh and attested by Mulkh Raj.. Sample of milk so taken was transferred into three equal parts and put in three dry and clean bottles. 18 drops of formalin were added in each bottle as preservative. Bottles were properly corked, labelled and sealed. Paper slips bearing code number of the Local Health Authority were also pasted on each bottle, as per rules. Signatures of the accused were also taken on each bottle according to Rules. One sealed bottle, copy of form VII were sent to public Analyst for analysis, whereas, the remaining bottles along with copy of form VII were deposited with the Local Health Authority. Report of the Public Analyst reveals that the sample of milk was found adulterated in millk fats to the extent of 0.8 per cent and was deficient by 82 per cent of the minimum prescribed standard. Copy of the report of the Public Analyst was duly sent to the accused through registered post. Besides the Food Inspector, Sanga Yadav was examined as PW 2. Mulkh Raj PW was, however, given up as having been won over by the accused.

The petitioners when examined u/s 313 of the Code of Criminal Procedure, denied the prosecution allegations appearing in evidence against them. Sahib Singh denied having been working as servant of Jaswant Singh. He pleaded that he used to do catering work of marriage parties and used to go to the shop of Jaswant Singh, in search of work and that Food Inspector got his signatures on certain papers. He also pleaded that he informed the Food Inspector that he was not concerned with the shop and that he had not sold any milk to the Food Inspector. Jaswant Singh petitioner denied that Sahib Singh was his servant and stated that Sahib Singh does catering work and contacted him on and off. In defence Mulkh Raj was examined as DW 1.

I have heard the learned counsel for the parties and have carefully perused the record.

On behalf of the petitioners, it was mainly contended that even according to the complainant the sample of milk taken for analysis was standard boiled milk for which no standard has been prescribed under the Act and the Rules framed thereunder and as such as the prosecution has failed to bring home charge against the petitioners. On the other hand, it was submitted on behalf of the Union Territory, Chandigarh, that the Food Inspector used the words ''standard milk'' due to slip of pen instead of ''standardised milk'' and both the petitioners were well aware of these facts.

Perusal of 1955 Rules framed under the Act clearly indicates that no standard has been prescribed for standard boiled milk. As per Rule A. 11.01.06 standardised milk means cow milk or buffalo milk or sheep milk or goat milk or a combination of any of these milk that has been standardised to fat and solids-non-fat percentage given in the table below Item A.11.01.11 by adjustment of milk solids. Standardised milk shall be pasteurised and shall show a negative Phosphatase Test. Perusal of Rule A. 11.01.11 shows that standard is only prescribed for standardised milk which is pasteurised or sterilised. However, no standard had been prescribed either for standardised boiled milk or for standard boiled milk under the Rules framed under the Act as were substitued vide notification No. GSR (E) dated 31-1-1979. Prior to that a common standard had been prescribed for raw, pasteurised, boiled, flavoured and sterilised for standardised or mixed milk. However, after the change separate standard has been prescribed for standardised pasteurised and sterilised milk but as already discussed above no standard has been prescribed for standardised boiled milk.

Faced with this situation it was submitted on behalf of U.T. Chandigarh that no standard had been prescribed either for standardised boiled milk or standard boiled milk under the Act or the Rules framed thereunder which were applicable at the time of the taking of the sample and that standard prescribed for buffallo milk shall apply. The argument advanced on behalf of the U.T. is hardly tenable as it is the specific case of the Food Inspector that the sample of standard boild milk was taken in the present case. The plea raised on behalf of the U.T. Chandigarh that due to mistake of pen, the Food Inspector wrote standard boiled milk instead of standardised boiled milk cannot be legally sustained as the Food Inspector himself has not given any plausible explanation with regard to the slip of pen. Rather from the very beginning he has maintained that the sample of milk taken was standard boiled milk. In view of the infirmity in the prosecution case referred to above the conviction and sentence passed against the petitioners cannot be legally sustained.

For the foregoing reasons, the orders of conviction and sentence passed by the Courts below cannot be legally sustained and the same are hereby set aside. Both the petitioners are hereby acquitted. The fine, if paid, shall be refunded to the petitioners. Both these petitions are accordingly allowed.