JUDGMENT
P.G. Agarwal, J.
1. Heard Mr. T.J Mahanta, learned counsel for the petitioner and the learned Public Prosecutor for the respondent.
2. This revision is directed against the judgment, and order dated 2.5.1997 passed by the Sessions Judge, Dhemaji in Criminal Appeal No. 1(1)/97.
3. On 30.4.1996 the Food Inspector, Dhemaji collected the sample of curd (dahi) from the shop premises of Matri Hotel and Restaurant belonging to the petitioner and thereafter the sample was sent for analysis and the public analyst, Assam submitted the report Ext. 14 to the following effect: –
“MILK
Fat – 3.44%
Solids not fat – 8.62%
Added water – absent
Deficiency in milk fat – 42.6%
And am of the opinion that the sample of curds (Dahi) does not conform to the standards.”
4. The petitioner was tried by the Chief Judicial Magistrate, Dhemaji in CR Case No. 244/96 and vide judgment dated 27.12.1996 the petitioner was convicted under Section 7 read with Section 16(1)(a) of the Prevention of Food Adulteration Act and sentenced to imprisonment for six months and to pay a fine of Rs. 1,000 in default further imprisonment for two months.
5. Feeling aggrieved, the petitioner preferred criminal appeal No. 1(1)/97 and vide judgment dated 2.5.1997 the learned Sessions Judge, Dhemaji dismissed the appeal and affirmed the order of conviction and sentence and hence the present revision.
6. The learned counsel for the petitioner has challenged the order of conviction and sentence on two counts namely,
(i) The sample collected by the Food Inspector was not a representative sample and as such it does not reflect the true quality of the ‘dahi’ kept in the shop for sale.
(ii). The trial court as well as the appellate court erred in law by applying the standard of buffalo milk to hold that the sample is adulterated.
7. It is now a well settled position of law that when the sample of curd is purchased by the Food Inspector it is required to be homogenised and divided into three parts and be put in separately sealed bottles. In the case of Municipal Corporation of Delhi v. Ghisa Ram, , it was held that the proper manner and method of taking sample of curd is that the said curd should be divided vertically and the entire one compartment should be taken and churned and then divided into three parts. In the case of Food Inspector, Municipal Corporation Baroda v. Madan Lal Ramlal Sharma , the Apex Court had this to say on the matter of collection of sample of milk or milk product: –
“Our attention was not drawn to any provision in the Act or Rules making it obligatory that churning should be done with some machine so as to make a sample homogeneous and representative sample. We are conscious of the fact that in milk and milk preparations including curd, it is distinctly possible that the fat settles on the top and in order to find out whether the milk or its preparation such as curd has prescribed content, the sample must be homogeneous and representative so that the analysis can furnish reliable proof of nature and content of the article of food under analysis. For this purpose churning is one of the methods of making the sample homogeneous and representative. But having said this, there is nothing in the Act or the Rules, which prescribes that churning must be done by some instrument, and that churning done by hand would not provide a homogeneous and representative sample. Common sense dictates that article of food like milk and curd when churned with hand would properly mix up from top to bottom.”
8. The decision in Ghisa Ram (supra) was followed by this court in the case of State of Assam v. Banwarilal Pipalwa 1992 Crl. LJ 3053 ; wherein it was held “in my opinion, the above procedure is to be followed at the time of taking sample of curd to make it homogeneous as cream accumulate on the top of the curd. If this is not followed the sample taken of curd will not be of representative character of the entire article namely the curd”.
9. In the light of the above settled position of law, we have perused the evidence on record and find that the evidence is lacking in details. The Food Inspector has not spoken a single word as to how the sample was collected. He has merely deposed that he has purchased 600 gms of curd and packed it in three containers equally. The question whether the curd was divided vertically or whether it was churned or not was lacking altogether. Both the trial court as well as the appellate court remained oblivion of this requirement of law and there is no finding even that the sample collected by the Food Inspector and sent to the public analyst was of representative character.
10. In this case, we find the prosecution case is that the sample of curd (dahi) was collected by the Food Inspector and it was sent for chemical analysis. The Food Inspector has nowhere mentioned that the curd was prepared from cow milk or buffalo milk. The public analyst’s report is also silent and when the matter was raised before the trial court, it had this to say it is true that when the prosecution is totally silent as to the nature of milk from which the curd was made, the courts are bound to go for the standard of buffalo milk as prescribed in the Rules. It seems that the learned trial court has relied on the standard of ‘dahi’ laid down in A.II.02.04 of Appendix E of the Prevention of Food Adulteration Rules which reads as follows : –
“A.11.2.2004. – DAHI OR CURD means the product obtained from pasteurized or boiled milk by souring, natural or otherwise, by a harmless lactic acid or other bacterial culture. Dahi may contain added cane sugar.
Dahi shall have the same minimum percentage of milk fat and milk solids-not-fat as the milk from which it is prepared.
Where dahi or curd (***) is sold or offered for sale without any indication of class of milk, the standards prescribed for dahi prepared from buffalo milk shall apply.
(Milk solids may also be used in preparation of this product).”
11. It seems that the learned trial court was not aware and it was also not brought to the notice of the trial court the decision of this court in the case of State of Assam v. Gopal Hotel & Restaurant (1990) 1 GLR 210 :-
“9. Insofar as reliance on the second part of A.II.02.04 referred above is concerned, we think that it should not be so readily accepted and invoked because as is well known even though ‘buffalo milk’ is available in Assam, it not commonly available and commonly sold in the market and the milk commonly so understood and sold in the market is generally ‘cow milk’. So also ‘DAHI’ available and sold in Gauhati and most other parts of the State is prepared from cow milk. During the hearing there was no controversy or dispute at the “Bar’ that milk available and sold in Gauhati and most of other parts of this State is only cow milk. Here in trade parlance as well as in common parlance, milk means cow milk. It is so understood in the trade by the trader and the consumer. In our opinion the need for indication of the class of milk from which the ‘DAHI’ was prepared and was offered for sale, could arise only when Dahi from buffalo milk’ and ‘cow milk’ both were commonly prepared and were available for sale. We think that while considering the provision which requires indications of class of milk the fact that ‘milk’ as commonly understood in GAUHATI and this State is cow milk more so when buffalo milk is not commonly available and sold as milk, in the State should also be duly considered and it shall not be proper and just, without anything more, to accept that because the sample of ‘DAHI’ taken did not conform to the standard prescribed for buffalo milk ‘DAHI’ it was adulterated. The aforesaid provision could be invoked where cow milk and buffalo milk, are available for sale and ‘DAHI’ prepared from both kind of milk is commonly available for sale, so that it may be necessary to indicate the class of milk used in preparation of the milk product such as ‘DAHI’. As said before since in the State of Assam and in Gauhati generally only cow milk is available and ‘DAHI’ sold is prepared from cow milk and in trade parlance and common parlance ‘DAHI’ is understood to be cow milk ‘DAHI’ prepared from cow milk, we are unable to rely only on the said provision to accept that the ‘DAHI’ in question which did not conform to buffalo milk ‘DAHI’ but which did conform to standard of cow milk DAHI was adulterated.”
12. In the present case, we find that the Food Inspector did not maintain or even did not try to obtain information from the vendor whether the curd in question has been prepared from cow milk or buffalo milk. Even the trial court also did not put such a question to the accused in his examination under Section 313 Cr.P.C. The standard of cow milk in the State of Assam is that it should have minimum percentage of milk fat 3.5% and milk solid not fat 8.5%. In this case, we find that the milk solid not fat was above the minimum requirement of 8.5%. So far the deficiency in milk fat is concerned ; both the courts held that this part of the report of the public analyst is not relevant as the fat content of cow milk is found to be 3.44% where as the requirement was 3.5%. It has been submitted that the finding of 3.44% is to be read as 3.5%.
13. In absence of any evidence that the sample of curd taken by the Food Inspector was of representative character and the curd in question was homogenised by way of churning etc. the benefit of this very marginal deficiency in milk fat must go to the accused petitioner. We, therefore, allow this revision petition and set aside the order of conviction and sentence entered into by the trial court and affirmed by the appellate court. The accused petitioner is acquitted and set at liberty forthwith. The petitioner is on bail and he need not surrender to his bail bond. Send down the records.