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1980 Supreme(Del) 331
DELHI HIGH COURT
CHARANJIT TALWAR, J.
MADAN LAL
VERSUS
THE STATE
Criminal Revn. No. 34 of 1978,
Decided on : 24 -11 -1980.
A party would not normally be allowed to cross-examine its own witness and declare him hostile unless the Court is satisfied that the statement of the witness exhibited an element of hostility or that he had resiled from a material statement which he had made earlier or where the Court was satisfied that the witness was not speaking the truth.
Headnote:
PREVENTION OF FOOD ADULTERATION ACT - S.7, S.16 - REPRESENTATIVE SAMPLE - CROSS-EXAMINATION OF PROSECUTION WITNESS - DISCRETION OF COURT - MARGINAL DEFICIENCY IN MILK SOLIDS NOT FAT - BENEFIT OF DOUBT.
Fact of the Case:
The petitioner was convicted for selling adulterated milk under the Prevention of Food Adulteration Act. The prosecution alleged that the Food Inspector had purchased a representative sample of milk from the petitioner's shop and that the analysis showed a deficiency of 0.44% in milk solids not fat. The petitioner challenged the conviction on the ground that the sample of milk purchased was not representative and that the marginal deficiency in milk solids not fat entitled him to the benefit of doubt.
Finding of the Court:
The court found that the testimony of a prosecution witness, who was present at the time of the purchase of the milk sample, contradicted the prosecution's version that a representative sample had been taken. The court also found that the trial court had erred in allowing the prosecutor to cross-examine the witness without recording any reasons for doing so.
Issues: 1. Whether the sample of milk purchased from the petitioner was representative. 2. Whether the petitioner was entitled to the benefit of doubt due to the marginal deficiency in milk solids not fat.
Ratio Decidendi: 1. The court held that the testimony of the prosecution witness cast a doubt on whether the sample of milk purchased from the petitioner was representative. 2. The court held that the marginal deficiency in milk solids not fat could be due to the fact that the sample analyzed was not representative, and that the petitioner was therefore entitled to the benefit of doubt.
Final Decision: The court set aside the conviction and sentence of the petitioner.
1. The petitioner herein Madan Lal was convicted for an offence under S.7 read with S.16 of the Prevention of Food Adulteration Act, and sentenced to undergo rigorous imprisonment for three months and a fine of Rs. 500/- by Shri J.D. Kaptior, Metropolitan Magistrate, Delhi. In default of payment of fine he was further awarded rigorous imprisonment for three months. The conviction and the sentence have been upheld by Shri J.D. Jain (then Additional Sessions Judge, Delhi) vide his judgement dated Jan., 16, 1978.
2. The prosecution allegations were that on Aug., 4, 1976, at about 5.30 P.M. Food Inspector M.L. Chawla accompanied by another Food Inspector M.L. Sharma visited the petitioner's shop. They found 20 litres of milk contained in, the drum bearing the inscription "cow's milk" After disclosing his identity, Food Inspector Chawla purchased 660 mls. of milk as sample for analysis on payment of Rs. 1,30 P. as its price vide the receipt, Exhibit P.A. Prior to the payment of price he had thoroughly stirred the milk stored in the drum and had also issued notice Exhibit P.B. to the petitioner. The milk so purchased was divided. into three equal parts which was thereafter transferred to three clean bottles. He added 18 drops of formalin in each bottle as preservative. The three bottles were duly sealed.
3. The testimony of the Food Inspector P.W. 2 M.L. Chawla and P.W. 3 M.L. Sharma shows that 660 mls. of milk purchased was a representative sample of milk contained in the drum. This version of the official witnesses, however, is at variance with the testimony of the public witness P.W. Ramji Dass who, according to the prosecution's own showing, was present throughout the proceedings at the shop of the petitioner. He has categorically stated that out of the drum containing 20 litres of cow's milk Food Inspector had poured 220 mls in one bottle, 220 mls. in the second bottle and 220 mls. in the third bottle. According to him, 660 mls. of milk were not taken out of the container at the same time. This witness was permitted to be cross-examined by the Additional Municipal Prosecutor on the plea that the witness was suppressing the truth. The order reads :
"At this stage A.M.P. requests that the witness is not speaking the truth and he may be allowed to cross-examine the witness. Request allowed."
4. The learned prosecutor did not place any material on the record to show that the witness had been won over or was suppressing the truth. No statement of the witness had been recorded by the Food Inspector; therefore, the question of confronting him with the previous statement did not arise. The permission to cross-examine him was granted by the trial Court on an oral application. From the record I have not been able to discern the reasons for exercise of this judicial discretion allowing the Prosecutor to ask questions by way of cross-examination from this prosecution witness.
5. It is well-settled that a party would not normally be allowed to cross-examine its own witness and declare him hostile unless the Court is satisfied that the statement of the witness exhibited an element of hostility or that he had resiled from a material statement which he had made earlier or where the Court was satisfied that the witness was not speaking the truth. Before this discretion is exercised there must be some material to show that the witness is not stating the truth. In Rabindra Kumar Dev v. State of Orissa, AIR 1977 SC 170 : (1977 Cri LJ 173), the Supreme Court has observed :
"This much is clear that the contingency of cross-examining the witness by the party calling him is an extraordinary phenomenon and permission should be given only in special cases. Furthermore, it is not merely on the basis of small or insignificant omission that the witness may have made before the earlier authorities that the party calling the witness can ask the Court to exercise its discretion. The Court before permitting the party calling the witness to cross-examine him
