Subhash Chand vs State of Haryana

S.D. Bajaj, J.

Around 9.00 p.m. on March 31, 1982 inside his shop at Shivpuri, Gurgaon accused Subhash was found having 50 cups weighing sixty grams each of ice cream for sale placed in a freezer. Sample obtained therefrom by the Government Food Inspector H.R. Khanna was on analysis was found to be deficient in milk fat content standard and therefore, reported to be adulterated vide reports Ex. PD and Ex. PF. On prosecution, vide its impugned judgment dated April 27/29, 1985, learned trial Court convicted him of the commission of the offence under Section 16(1)(a)(i) read with Section 7 of the Prevention of Food Adulteration Act and sentenced him to undergo rigorous imprisonment for a period of six months and to pay Rs. 1000/ as fine. In default of payment of fine the convicted accused was ordered to undergo rigorous imprisonment for a further period of three months. Criminal Appeal No. 20/2 of 1985 filed against the judgment of the learned trial Court dated April 27/29, 1985 was dismissed by the learned lower Appellate Court on April 10, 1986. Criminal Revision No. 08 of 1986 has, therefore, been filed by the convicted accused petitioner in this Court.

I have heard Shri V.K. Jain, Senior Advocate, with SarvShri Ajay Aggarwal and B.S. Chawla, Advocates, for the petitioner, Shri Arun Nehra, Additional Advocate General Haryana for the respondent State and have perused the entire relevant material on record very carefully.

Out of the three samples, the bottle containing one got broken in the transit and therefore, sample was reported to be not fit for analysis. In regard to the second sample, report Ex. PD of the Public Analysis is :

"I further certify that I have caused to be analysed, the aforementioned sample and declare the result of analysis to be as follows :

Physical Appearance Green coloured liquid having badam kishmish fruit pieces etc. in it.

Starch Absent

Milk fat 4.9%

Protein 4.54%

Total solids 38.14%

Wool double dyeing test Positive

Acid dye Present

Basic dye Absent

Test for colour by paper Chromatography Permitted Blue FCF Carmosine and Tartrazine coal tar dye present.

I am of the opinion that the sample contains Milk fat .9% against the minimum prescribed standard of 8.0%

Signed 3rd day of May, 1982.

Sd/ Sh. Anand

Public Analyst."

This sample was shown to accused before being despatched to the Public Analyst and his statement was recorded by the learned trial Court to the effect that the seals on the sample were duly intact. This kind of procedure was not adopted by the learned trial Court while despatching the third sample to the Director, Central Food Laboratory, Ghaziabad for analysis. Report Ex. PE received in respect of it reads :

"Certified that the sample bearing No. HK/127, IHA Slip 082 purporting to be a sample of Ice Cream (IIIrd sample) received on 26.11.1982 with memorandum No. 129 dated 24.11.1982 from Chief Judicial Magistrate, Gurgaon (Haryana) was in a condition fit for analysis are stated below :

Physical appearance. The sample was yellow in colour, free from fungal growth. The sample contained fruits and nuts.

Analytical data :

(1) Total solids : 39.5%

(2) Total fat (RoeseCotlieb method) : 4.7%

(3) Protein content (x 6.38) : 3.9%

(4) B.R. reading of extracted fat : 45.4

(5) Test for presence of starch : Trace Positive

(6) Test for presence of sucrose : Positive

(7) Test for presence of oil soluble coal tar colour : Negative

(8) Test for presence of water soluble coal tar colour : Positive A permitted coal tar colour identified as Tartrazine present.

Opinion : The sample does not conform to the standard of ice cream laid down in clause A 11.02.08 of PFA Rules (1955) in that (i) milk fat content is less than the minimum prescribed limit."

In Ex. PD the sample was of green colour while in Ex.PF it was given out to be of yellow colour. Starch was absent from the sample in report Ex. PD while it was `Trace Positive'' in Ex.PF. Difference in the contents of the two reports when perused along with the factum of the third sample having been despatched to the Director without associating the petitioner and without recording his statement of the seals on the sample being intact at the time of despatch (as was done earlier while despatching the second sample) clearly suggests an inference that the third sample was not of the ice cream sample taken from the accused. In this view of the matter, prosecution case set up against the accused is rendered to be of a doubtful nature and suspicious character. Accused Subhash is, therefore, given the benefit of doubt and acquitted.

Accused is on bail from this Court vide order dated April 17, 1986. Bail bonds furnished by his surety as also the personal bond put in by the accused himself before learned Chief Judicial Magistrate, Gurgaon shall both stand discharged. Fine, if released, shall be refunded to him.

JUDGMENT accordingly.