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CASE NO.: Appeal (crl.)  940 of 2004

PETITIONER: State of Haryana  

RESPONDENT: Daya Nand

DATE OF JUDGMENT: 25/08/2004

BENCH: N.Santosh Hegde, S.B.Sinha & A.K.Mathur

JUDGMENT: J U D G M E N T  

(Arising out of SLP(Crl.)No.5135 of 2003)

SANTOSH HEGDE,J.  

       Heard learned counsel for the parties.

       Leave granted.

This appeal has been filed against the order of Punjab and  Haryana High Court at Chandigarh dated 22nd of January, 2003,  whereby the High Court set aside the judgments of the two courts  below in a revision petition filed by the respondent herein.  Brief facts necessary for the disposal of this appeal are as  follows: On 6th of July, 1988 when respondent was carrying 20 liters  of cow’s milk in a bicycle he was intercepted by the Deputy Chief  Medical Officer, Narnaul and a sample of 750 ml. of milk was  collected from the container in which the respondent was carrying  the milk and the same was sent to Public Analyst who in his report  found the sample to be deficient in milk solid to the extent of 5%  of the prescribed minimum standard. He also found solid fat as  required under the law deficient. On receipt of the said report, a copy of the same was sent to  the respondent by registered post but the same was returned by the  postal endorsement "refused to accept". On the basis of the  investigation made on 25th of August, 1988 a complaint under  section 16(i)(a)(i) of the Prevention of Food Adulteration Act was  filed against the respondent.  In the trial, the prosecution examined PW-1 Dr.S.P.Singh  and PW-2 Megh Nath, the Food Inspector, in support of its case.   The respondent did not lead any evidence in defence except  contending in his statement under Section 313 Cr.P.C. that he was  innocent. The trial court as per its order dated 18th February, 1989  found the appellant guilty of an offence punishable under Section  16(i)(a)(i) of the Prevention of Food Adulteration Act and after  hearing the respondent on the quantum of sentence taking into  consideration he had no previous conviction and had three small  kids to support, awarded the minimum prescribed sentence under  the Act that is to undergo RI for six months and to pay a fine of  Rs.1000/- in default of payment of fine the accused was directed to  further undergo simple imprisonment for three months. Being aggrieved by the conviction and sentence, the  respondent preferred an appeal before the Sessions Judge, Narnaul  who by his order dated 28th of March, 1990 concurred with the  finding of the trial court and confirmed the conviction and  sentence.

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The respondent, as stated above, preferred a revision against  the said orders before the Punjab and Haryana High Court at  Chandigarh and the High Court by the impugned cryptic order  dated 22nd of January, 2003 held that in the sample milk, non solid  fat was found to be 8.1 % instead of 8.5% while solid fat was  found to be 4.5% as against the requirement of 4%. It also  observed that in the circumstances of the case, possibility of  improper stirring could not be ruled out. On that assumption it  gave the benefit of doubt to the respondent and allowed the  revision of the respondent setting aside the conviction and sentence  imposed by the two courts below.  Mr.Manu Sharma learned counsel appearing for the  appellant-State contended that first of all the High Court in a  revision petition could not have gone into the questions of fact  decided concurrently by the two courts below. He also contended  the assumption of the learned Judge that there is improper stirring  while taking the sample was contrary to the facts on record and  findings recorded by the two courts below. He submitted that on  the basis of the material on record such an assumption could not  have been drawn by the High Court. Hence, he contended that the  impugned order of the High Court is unsustainable in law.  Mrs.Laxmi Arvind, learned counsel appearing for the  respondent, however, contended that the High Court was fully  justified in coming to the conclusion that there could have been a  possibility of improper stirring which, if true, would not give the  proper result while analysing the sample product, hence, the order  of the High Court is legally justifiable. She also placed strong  reliance on the judgement of this Court in the case of Food  Inspector, Municipal Corporation, Baroda vs. Madanlal Ramlal  Sharma & Anr. (AIR 1983 SC 176). We will first deal with the assumption of the High Court that  there is a possibility of improper stirring while taking the sample. In the trial court, the learned counsel for the respondent had  raised this contention and the same was negatived by the trial court  on the following basis :  "Otherwise also the witnesses have  categorically stated that the milk was properly stirred  with measurement before taking the milk sample.  Thus I hereby over rule this contention of learned  defence counsel".  

This finding was given by the learned Judge while  considering various judgments cited in support of the contention  raised on behalf of the accused as well as the evidence found in  this case as to the proper stirring of milk. Learned Sessions Judge while considering the similar  arguments raised before him after considering the judgments cited  before him held thus at para 11 of the judgement:  "Regarding last contention, learned counsel  seems to have been impressed by the word ’churning’  mentioning in the complaint. A look at the complaint  would show that both the words ’stirring’ as well as  ’churning’ are mentioned. It appears that word  ’churning’ was not deleted in the complaint because  that method is necessary in case of ’curd’. In any case it  was stated by the witnesses that the sample was made  representative and homogeneous by stirring and thus,  no fault can be found on this account as well."

Thus it is noticed that both the courts below have considered  this question and on the material available on record have come to  the conclusion that the sample milk in question was properly  stirred as required by law and the sample was made representative  and homogeneous. This finding is based on the evidence found on  the record. In this background, in our opinion, the High Court

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rather casually has come to an erroneous assumption that there was  improper stirring for which there is no foundation at all, as could  be seen from the finding noticed by us herein above of the two  courts below. We do not think the High Court could have  substituted a factual foundation available on record, by an  assumption, to give benefit of doubt to the respondent. As stated  above, the learned counsel appearing for the respondent relied on a  judgment of this court in the case of Food Inspector, Municipal  Corporation, Baroda (supra), we do not think the above judgment  will be of much assistance to the respondent because that was a  case in which primary question was what should be the method by  which "churning" of "curd" should be done. In that context, this  Court held that the law does not provide for any specific method  and the finding in this regard would depend upon the evidence on  record. That apart in that case the court was considering the effect  of "churning" of "curd", while in the present case, we are  concerned with "stirring" of "milk" which on facts has been found  to be properly done. For the reasons stated above, we allow this appeal setting  aside the order of the High Court acquitting the respondent and  restore the conviction and sentence imposed on the respondent by  the trial court as confirmed by the Sessions court and direct the  respondent to serve out the sentence awarded by the trial court.  The appeal is allowed.