Suresh Kumar vs State of Haryana

G.S. Chahal, J.

Suresh Kumar, revisionpetitioner was tried by Sh. N. C. Nahata, Sub Divisional Judicial Magistrate, Fatehabad on the basis of a complaint filed by Govt. Food Inspector R. R. Jindal for an offence under section 16(1)(a)(i) read with section 7 of the Prevention of Food Adulteration Act. After trial, he was convicted for that offence and sentenced to undergo rigorous imprisonment for 6 months and a fine of Rs. 1,000/ of in default thereof further RI for 4 mouth. An appeal preferred by him was heard by Sh. S. D. Arora, Addl. Sessions Judge, Hissar who dismissed the same. Having felt aggrieved by both these orders, he has come up in revision to this Court.

The facts of the prosecution law may be briefly stated

"On 20582, Govt. Food Inspector R. R. Jindal, accompanied by Dr. O. P. Sarwal, Deputy CMO (Health), Hissar, visited the shop of the petitioner where he was running an expeller and a Soar will, near Anaj Mandi. The petitioner was present at his shop and he was found in possession of 15 kg of Sarson oil for sale. It was kept, in a tin. The Govt. Food Inspector gave him a notice in writing in Form VI under the rules. He demanded a sample of Sarson oil. He then purchased 375 grams for analysis against payment of Rs. 3/75 paise. The same was divided into 3 equal parts and put into 3 dry clean bottles. The bottles were duly stoppered, sealed and labelled. One sample bottle was forwarded to the Public Analyst while the other two were handed over to the Local Health Authority, Fatehabad. The Public Analyst gave his report that the sample contained fatty acids as oleic acid 3.2% against the maximum prescribed standard of 3%. After receipt of this report, the complaint was instituted. At the request of petitioner, the second sample bottle was sent to the Central Food Laboratory, Ghaziabad and the report was to the effect that the fatty acid as oleic acid was 4% which was above the maximum prescribed standard. B.R. reading was marginally above the maximum prescribed limit."

The Govt. Food Inspector, besides making his own statement, examined Dr. O. P. Sarwal and they corroborated the prosecution version, narrated above. The petitioner denied the prosecution allegations and claimed the case to be false. He also pleaded that the mustard oil was expelled on payment of charges for other persons and the mustard oil from which the sample was taken, belonged to one Kartar Singh of Bhirrana. He also led defence.

Sh. D.S. Bali, Sr. Advocate appearing for the petitioner, urged that the sample was not properly drawn by the Govt. Food Inspector. For taking a representative sample, it was essential for the Govt. Food Inspector to have thoroughly stirred the entire bulk from which the sample was to be drawn. However, this process was not carried out. I find force in this contention of the learned counsel. In the complaint Ex. PF, as well as the memo for purchasing the sample Ex. PC, no reference is made to the strirring of the bulk quantity. When Dr. O. P. Sarwal was crossexamined, he deposed that only an upper layer of the oil was stirred. This statement of the doctor definitely contradicts the statement of the Govt. Food Inspector that the bulk quantity had been properly stirred and made homogeneous before drawing the sample. It was probably for this reason that when the sample was analysed by the public Analyst, there was only a minor variation of 2% in thefatty acid and when the second sample was analysed by the Director, Central Food Laboratory, after a lapse of some time, there was further variation. There might have been some change in the meantime. Leaving the aspect of the case aside, the fact remains that the sample was not properly drawn. On this score, the petitioner is entitled to claim benefit of doubt.

In the result, I allow the revision and set aside the orders of conviction and sentence passed by both the Courts below. Fine, if paid, be refunded to the petitioner.