Union Territory vs Ghansham Dass

S.S. Grewal, J.—This appeal is directed against the order, of Additional Sessions Judge, Chandigarh dated 9th of July, 1986 whereby order of conviction passed by the trial Court against Ghansham Dass respondent u/s 16(1)(a)(i) of the Prevention of Food Adulteration Act, 1954 (hereinafter referred to as the Act) and sentenced to undergo rigorous imprisonment for nine months and to pay a fine of Rs. 1,000/- and in default of payment of fine to undergo further rigorous imprisonment for four months was set aside.

In brief facts relevant for the disposal of this appeal are that on 23.2.1984, Shri N. K. Sharrna, Food Inspector went to the shop of the accused and there he found 10 Kg. of cow''s milk meant for sale. The Food Inspector after giving notice purchased 660 ml. of cow''s milk for the purpose, of analysis on payment of Rs. 2.50 as its price. The purchased milk was then transferred into three dry and clean bottles. . After adding preservative the bottles were duly sealed as per rules. One such sample was sent to the Public Analyst who opined that milk solids not fat were 7.9 percent as against the minimum standard of 8.3 per cent. In support of the complaint filed by the Food Inspector, he himself appeared as P.W. 1, whereas clerk from the Local Health Authority appeared as P.W. 2. The plea taken by the accused was that the sample was taken without stirring the milk.

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

On behalf of the appellant, it was mainly submitted that the accused had exercised his right to have the sample analysed and that the learned Additional Sessions Judge has erred in holding that right of the accused to have the sample analysed again has been frustrated for no fault of his. There is no legal or cogent evidence on the record that the accused in any manner tampered with the seals or the slip of the Local Health Authority or that he was responsible for defect in sealing of the sample bottles which were despatched to the Director Central Food Laboratory, Gaziabad through the agency of the Court. The second bottle could not be analysed because the same was empty, whereas, the third could not be analysed because of curdling. The trial Court further erred in relying upon the facts and circumstances as well as the report of the Central Food Laboratory received in case of Jamna Parshad father of Ghansham Dass (respondent in the present case). Appeal against order of acquittal of Jamna Parshad aforesaid was upheld by Division Bench of this Court in Criminal Appeal No. 81-DBA of 1987 decided on 5th of September, 1991. Ghansham Dass obviously has been deprived of his valuable right to get two samples of milk analysed from the Director, Food Central Laboratory, Ghaziabad for no default of his. In case he could properly exercise such right, the report of the Director, Central Food Laboratory would have superseded the report of the Public Analyst. Thus material prejudice has been caused to Ghansham Dass accused on this score.

We find support in our view from the authority of the Supreme Court in Chatumal v. State of Madhya Pradesh and Anr. 1981 Ch. L.R. 576 wherein it was held :-

"that under- section 13(3) of the Prevention of Food Adulteration Act, the report of the Public Analyst stood superseded by the certificate issued by the Director of the Central Food Laboratory. Having been so superseded, the report of the Public Analyst could not therefore, be relied upon to base a conviction. The certificate of the Director of the Central Food Laboratory having been excluded from consideration because of the tampering of the seals, there was really no evidence before the Court on the basis of which the appellant could be convicted. The Court could not fall back on the report of the Public Analyst as it had been superseded. The only method of challenging the report of the Public Analyst was by having the sample tested by the Director Central Food Laboratory."

Another important aspect of the case is that in the complaint filed by the Food Inspector it is not specifically mentioned that the cow''s milk was stirred or made homogeneous before the Food Inspector took sample for analysis. Mere fact that the Food Inspector mentioned this fact at a later stage in his statement in the Court is an Improvement for which no plausible explanation has been put forty in this case. Thus the marginal deficiency in milk solids not fat in the sample of milk could also be due to omission to make the milk homogeneous by stirring it properly before sample of milk was taken by the Food Inspector.

For the foregoing reasons, we do not find any merit in this appeal and the same is hereby dismissed.