The necessity of a homogeneous sample for determining conformity to standards under the Prevention of Food Adulteration Act.

N. Dhinakar, J.

Petitioner is the 2nd accused in S.T. No. 6 of 1988. He was tried along with another for offences under S.16(1)(a) read with S.7(1) and 2(la) and (m) of the Prevention of Food Adulteration Act and R.44(b) of the Food Adulteration Rules, 1955. The trial Court convicted the petitioner as well as other accused and sentenced each of them to undergo rigorous imprisonment for a period of six months and to' pay a line of Rs. 2,000/- each and in default of payment of fine to undergo simple imprisonment for a further period of three months each. The appellate Court, on appeal, while confirming the conviction and sentence imposed upon the petitioner, acquitted the other accused. Hence this revision.

2. The case of the prosecution is that the complainant - PW.3 at about 9.45 on 5.5.1988 purchased 750 ml. of cow's milk from the petitioner who was the salesman from a can, which was kept in the premises of a teashop at Olingara. The purchased quantity was taken in three bottles and one of the bottles was sent for analysis and the Public Analyst by Ext. P13 report opined that the sample does not conform to the standards prescribed to cows milk. Thereafter, the complaint was laid against the petitioner and the other accused, on 7,6.1988. On receipt a notice under S.13(2) of the Act, the petitioner requested the Court to send the other sample to the Central Food Laboratory and accordingly it was sent. The report, Ext. Cl was received from the Central Food Laboratory.

3. To prove the case against the petitioner, the prosecution examined PWs.1 to 4 and marked Exts. P1 to P18. Ext. Cl was marked as court exhibit. On the evidence adduced both oral and documentary, the Court below convicted and sentenced the petitioner for the offences with which he was charged as stated above.

4. Counsel for the petitioner now contends that the sample taken by the Food Inspector, PW. 3, was not homogeneous in its content. He submits that the complainant, PW. 3, nowhere in his evidence has stated that the milk so taken by Win was stirred and sent for analysis. In support of his plea, he relies upon two judgments, one by a Division Bench of the Court in Food Inspector v. Abooty (1989 (2) KLT 578) and another by the Supreme Court in K. Harikumar v. Food Inspector (1995 SCC (Crl) 933). The Division Bench of the Court took the view that after the purchase of the sample, in a few cases like curd or milk where there is a possibility of disturbance of homogeneity in certain special circumstances, the Food Inspector may have to adopt some procedure to ensure that the sample is homogeneous and the three parts are similar in nature. For taking such a view, the Division Bench has relied upon an earlier judgment of the Supreme Court in Food Inspector, Municipal Corporation, Baroda v. Madanlal Ramlal Sharma (AIR 1983 SC 176). In Harikumar v. Food Inspector, Punaloor Mundpality referred to above, the Supreme Court had taken the view that to attain homogeneity, it becomes necessary for the ingredients of milk getting a uniform consistency in order to determine the percentage in their completeness. It is not in dispute that the Food Inspector in the case did not stir the milk and there is no homogeneity when the sample was sent for analysis.

On the facts, I am of the view that the petitioner is entitled for an acquittal and accordingly, he is acquitted. Cr1.R.P. is allowed. The bail bond shall stand cancelled. The fine amount, if paid, will be refunded to the petitioner.