14 December 1982
Supreme Court


Case number: Appeal (crl.) 605 of 1981








CITATION:  1983 AIR  176            1983 SCR  (2)   9  1983 SCC  (1) 135        1982 SCALE  (2)1347

ACT:      Prevention of  Food Adulteration  Act, 1954-Preparation of sample  for analysis-Milk and Milk preparations including curd-Churning  by   hand  makes   sample   homogeneous   and representative-Law  does   not  require   churning  by   any instrument.

HEADNOTE:      The respondent  was  convicted  and  sentenced  for  an offence under  the Prevention of Food Adulteration Act, 1954 on a complaint that a sample of curd purchased from his shop had been found not to conform to the standard prescribed. He preferred an  appeal and the Sessions Judge acquitted his on the short  ground that  the sample  was not  homogeneous and representative of  the curd  purchased as  the curd  had not been churned  properly before  it was sent for analysis. The High  Court  affirmed  this  conclusion  and  dismissed  the appeals filed against the order of acquittal.      The High  Court, in  preference to  the evidence of the complainant that  the churning  of the  sample had been done with a  spoon, placed  reliance on  the evidence  led by the defence  that   the  churning  had  not  been  done  by  any instrument but  it had been done by the complainant with his hand. The  High Court  stated that since the prosecution had not challenged  the defence version that the churning of the sample had  been done  by means of hand alone, it had failed to prove that the churning had been done in a proper manner.      Declining  to  interfere  with  the  acquittal  of  the respondent by  the two  lower courts  after a  lapse of  six years and dismissing the appeal, ^      HELD: 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,  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  representatives   sample.  Commonsense dictates that  articles of  food like  milk  and  curd  when churned with hand would 10 properly mix-up  from  top  to  bottom.  More  so  when  the quantity  is   either  600  grams  which  was  the  quantity purchased or  2-1/2  kg.  which  was  the  quantity  in  the container. [14 C-E]      In the  instant  case,  there  was  evidence  that  the churning was done by spoon. But even if the High Court found that evidence unreliable and the evidence of defence witness so much  reliable that  it  was  prepared  to  act  upon  it disagreeing with  the other evidence the evidence of defence witness was that churning was done with hand, and he did not say that  the churning  was not  effective. It  is therefore difficult to  subscribe to  the view  of the High Court that the  churning   done  by   hand  would  not  meet  with  the requirements   of    making   a   sample   homogeneous   and representative. There  has to be a finding that the churning done with  hand was  not adequate. There is no such finding. The High  Court was,  therefore, not justified in confirming the acquittal on this ground. [14 F-H; 15 A]

JUDGMENT:      CRIMINAL APPELLATE  JURISDICTION: Criminal  Appeal  No. 605 of 1981.      Appeal by  special leave  from the  Judgment and  Order dated the  8th April,  1980 of  the Ahmedabad  High Court in Criminal Appeal  No. 218 of 1978 with Crl. Appeal No. 603 of 1978.      M.C. Bhandare,  T. Sridharan, Mrs. S. Bhandare and Miss C.K. Sauhantia for the Appellant.      Miss Maya Rao for Respondent No. 1.      J.L. Jain and R.N. Poddar for Respondent No. 2.      The Judgment of the Court was delivered by      MISRA, J.  In this  appeal by  special leave the narrow question that  this Court proposes to examine is whether the High Court was right in holding that churning of the curd of which a  sample was  taken, if done with hand, was done in a proper manner  so as  to make  the  sample  homogeneous  and representative.      The few  relevant facts  are that Shri G.A. Parikh Food Inspector attached  to Baroda  Municipal Corporation visited the shop  of the  respondent No.1  accused  Madanlal  Ramlal Sharma on  September 4,  1976 around  7.20 a.m. He purchased curd from  a container  having 2-1/2  Kg  of  curd  for  the purpose of  analysis. There was a board hanging on the outer side of the container that 11 the curd  is prepared  from cow’s  milk. The  Food Inspector purchased 600  grams of curd and after churning the curd, he divided it  in three equal parts and prepared three separate samples, each  kept in  a  separate  bottle.  After  various formalities including obtaining the sanction for prosecuting the respondent-accused.  a complaint  was filed in the Court of   the    learned   Judicial   Magistrate,   First   Class (Municipality) at  Baroda. In  the course  of trial  at  the request of  the accused  the third  sample was  sent to  the Central Food Laboratory for analysis and report. It may also be mentioned  that the  Food Inspector  himself had sent one sample to  the public analyst attached to the laboratory set up by  the Municipal Corporation, for analysis of article of food. The report of the public analyst shows that the sample



of curd  contained 3% milk fat and 11.7% milk solid non-fat. On  the   other  hand,   the  report  of  the  Central  Food Laboratory, Calcutta  (Ex. 15) shows that milk fat was 2.95% and milk  solid non-fat 10.8%. It was opined that the sample of curd  was adulterated.  The learned  Magistrate held that the curd in question was prepared out of cow’s milk, that it did not  conform to  the prescribed standard and reached the conclusion that  the prosecution case was established beyond a shadow  of reasonable  doubt.  Consequently,  the  learned Magistrate convicted  the first  respondent-accused  for  an offence under  section 7  (1) read with section 16 (1)(a)(1) of  the  Prevention  of  Food  Adulteration  Act,  1954  and sentenced him  to  suffer  rigorous  imprisonment  for  four months and  to pay  fine of  Rs. 500  in default  to  suffer further rigorous imprisonment for two months.      The first  respondent-accused preferred Criminal Appeal No.46 of  1977 in  the Court  of  Sessions  at  Baroda.  The learned Additional  Sessions Judge  who  heard  the  appeal, inter alia,  held that  proper churning of the sample having not been  done, the  sample cannot be said to be homogeneous and representative  of the  curd in question so as to arrive at a  proper conclusion on analysis of the sample and on the short ground acquitted the accused.      Two appeals  were preferred against the judgment of the learned Sessions  Judge. Criminal Appeal No. 218 of 1978 was preferred by  the State  of Gujarat  and Criminal Appeal No. 603 of 1978 was preferred by the complainant Food Inspector. A division  Bench of the Gujarat High Court disposed of both the appeals  by a  common judgment.  The High Court affirmed the 12 acquittal observing that ’the conclusion is inescapable that the prosecution  has failed  to prove  that the churning was done in  a proper  manner so  as to make the entire curd one and all the samples would be identical in themselves.’ Hence this  appeal  by  special  leave  by  the  complainant  Food Inspector.      The sample  of curd was taken on September 4, 1976. Six years  have   passed  and   two  courts  have  concurred  in acquitting the  accused, namely,  the Sessions Judge and the High Court.  We are,  therefore, reluctant to interfere with the order  of acquittal.  But the  learned counsel Mr. M. C. Bhandare for  the appellant,  Food Inspector and the learned counsel Mr.  Nain appearing  for the State of Gujarat second respondent supporting the appellant, urged that irregularity in churning the curd before sampling the same in bottles, as found by  the High Court, if allowed to remain unquestioned, it would have an adverse effect on a large number of pending cases. We are, therefore, only inclined to examine the legal submission and  we may  make it absolutely clear that we are disinclined to interfere after six years in what is found to be marginal  adulteration by the learned Magistrate so as to send  the  respondent  to  jail,  though  we  must  make  it abundantly clear that we do not look upon with equanimity on offences under  the  Prevention  of  Food  Adulteration  Act because these  offences have  the deleterious effect playing havoc with  the health  and well-being of a large segment of the Society.  But the  acquittal by  two courts and delay of six years  and coupled  with  the  finding  that  there  was marginal adulteration  would certainly  be a disincentive to interfere with the Order.      It is  indisputable that  curd is  an article  of food. Rule 22  of the  Prevention of Food Adulteration Rules, 1955 (Rules for  short) provides  that in  the case  of  curd,  a quantity  of  200  grams  has  to  be  sent  to  the  public



analyst/Director of  Central Food  Laboratory for  analysis. The Standard  for cow’s milk for Gujarat as prescribed under the Rules  is that  it must  contain 3.5%  milk fat and 8.5% milk solids  non-fat. Further  provision is  that  the  curd obtained from  any kind  of milk shall have the same content as the  milk fat  and milk  solids non-fat  as the milk from which it  is prepared.  Section 13  (3) of the Act, provides that the  certificate issued by the Director of Central Food Laboratory under  section 2-B  shall  supersede  the  report given by the public analyst under 13 sub-section (1). The report of Central Food Laboratory shows that the  sample contained  2.9% of milk fat. Therefore, the conclusion that  the  sample  of  curd  was  adulterated  is unquestionable.      The learned  Sessions Judge found that after purchasing the curd  in  order  to  make  the  sample  homogeneous  and representative,  churning  was  not  done  as  required  and therefore  the   sample  was   not  both   homogeneous   and representative and  therefore the  accused could not be said to have  sold or  stored for  sale adulterated  curd.  While affirming this  conclusion the  High Court has observed that the evidence  of  Ex.  49  Devsibhai  Ramjibhai,  a  defence witness and  the statement  of the  accused  recorded  under section 248 (2) Cr.P.C. would show that the churning was not done by  an instrument  but the complainant had done it with his hand  and thereafter  curd was  divided into three parts and three  sample bottles  were filled.  The High Court then observed that on this point Devsibhai Ramjibhai had not been cross  examined.   The  High   Court  while   proceeding  to appreciable the  evidence of Devsibhai Ramjibhai accepted it in preference  to the  other evidence of the complainant who had stated  that the  churning was  done with  a spoon. Then comes the  observation of  the High Court which clinches the matter. It reads as under:           "But fortunately  for  the  prosecution  when  the      spoon aspect  becomes doubtful,  and when  the  defence      version clearly  found by  us on  record  is  that  the      allegation is  that the  churning was  done by means of      hand alone,  it was quite necessary for the prosecution      to challenge this version of the defence which has been      given by the defence witness on oath. In the absence of      that, unfortunately,  we have  come to  the  conclusion      that the  prosecution has  failed  to  prove  that  the      churning was  done in a proper manner so as to make the      entire curd  one and all the samples would be identical      in themselves." The High  Court held  that on  this short  ground alone  the acquittal must  be affirmed.  With respect,  we find it very difficult to  subscribe to the view taken by the High Court. Rule 14  provides that  sample of  food for  the purpose  of analysis shall  be taken  in clean dry bottles or jars or in other suitable containers which shall 14 be  closed   sufficiently,   tight   to   prevent   leakage, evaporation, or  in the  case of  dry substance, entrance of moisture and shall be carefully sealed. Rule 15 provides for labelling and  addressing the  bottles. Rule 16 provides for packing and  sealing the  samples. Rule  20 enables the Food Inspector to add prescribed preservative to the sample. Rule 22 prescribes  quantity necessary  for analysis.  It may  be recalled that section 11 prescribes procedure to be followed by Food Inspector,      Our attention was not drawn to any provision in the Act or the  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. Commonsense dictates  that articles  of food  like milk  and curd when  churned with  hand would properly mix-up from top to bottom.  More so  when the  quantity is  either 600 grams which was the quantity purchased or 2-1/2 kgs. which was the quantity in  the container.  There  was  evidence  that  the churning was done by spoon. But even if the High Court found that evidence  unreliable and  evidence of  defence  witness Devsibhai Ramjibhai  so much,  reliable that it was prepared to act  upon it  disagreeing with  the other  evidence,  the evidence of  Devsibhai Ramjibhal  was that churning was done with hand,  and he  did not  say that  the churning  was not effective. We  therefore find  it difficult  to subscribe to the view  of the High Court that the churning is required to be done by some instrument or that the churning done by hand would not  meet with  the requirements  of making  a  sample homogeneous and  representative. There  has to  be a finding that the  churning done with hand was not adequate. There is no such finding. We are, therefore, of the 15 opinion that  the High Court was not justified in confirming the acquittal on this ground.      Having made the position in law clear, as we understand it, we  decline to set aside the acquittal. Subject to above observation the appeal is dismissed. H.L.C.                                     Appeal dismissed. 16