The importance of ensuring that the sample of milk is representative and the necessity of ensuring safeguards under section 13(2-B) of the Food Adulteration Act to exclude the possibility of tampering with the sample.

V.K. Mehrotra, J.—By his judgment of March 1, 1983, the Chief Judicial Magistrate, Dharamshala, convicted Prem Chand for an offence punishable under section 16 (i) (a) of the Food Adulteration Act, 1954 and sentenced him to undergo rigorous imprisonment for six months and to pay a fine of Rs. 1,000. The allegation on the basis whereof Prem Chand was convicted was that on August 21, 1981, the Food Inspector had purchased 660 ml. milk from him for analysis. The sample of milk was found to be adulterated.

2. Prem Chand assailed the order of his conviction in Criminal Appeal No. 14 of 1983. This appeal was allowed by the learned Sessions Judge, Dharamshala, on December 18, 1984. The learned Judge set aside the conviction as also the sentence awarded to Prem Chand. The learned Judge based his decision on two principal points. First, that it was not established from the evidence of the prosecution that the sample of milk, which was analysed initially by the Public Analyst and later by the Director, Central Food Laboratory, was not a representative sample. The reason for this view was that it was in evidence that the milk was contained in a drum, which weighed 30 to 35 kg. and was of the height of 2 to 2-1/2 ft. The Food Inspector had said that before taking the sample this quantity of milk was stirred with a measure (an instrument of the length of l0) but Shri Krishan Kumar (CW 1) had stated that the Food Inspector had not stirred the milk before taking the sample.

3. The second reason which commended itself to the learned Judge was that it was not established on the record of the case that before the sample was sent to the Director Central Food Laboratory the safeguards contemplated by section 13 (2-B) of the Act had been ensured by the Court.

4. On an application in that behalf made by the State of Himachal Pradesh, this Court granted it leave to appeal and the present appeal against acquittal was admitted to fuller hearing on May 24, 1985.

5. After the decision of the Supreme Court in Food Inspector, Municipal Corporation, Baroda v. Madan Lal Ram Lal Sharma and another, (1983) 1 SCC 135, it cannot be doubted that before a sample of milk can be treated to be a representative sample, it should be established on the record that the quantity of milk was properly churned to make it homogeneous. In the present case, the learned Sessions Judge has, as a Court of fact, gone into the evidence on record and come to the conclusion that the sample of milk was not stirred. This conclusion is fully justified in view of what has been stated by Shri Krishan Kumar as CW 1 in his cross-examination. The finding in this respect deserves to be upheld. If that be so, it is obvious that the sample taken by the Food Inspector was not a representative sample and could not form the basis of a conclusion, sustainable in law, that the milk which been sold to the Food Inspector was adulterated.

6. The second reason which was accepted by the learned Sessions Judge for acquitting the respondent Prem Chand was also a valid one. Section 13 (2-B) of the Act says that : "On receipt of the part or parts of the sample from the Local (Health) authority under sub-section (2-A), the Court shall first ascertain that the mark and seal or fastening as provided in clause (b) of sub-section (1) of section 11 arc intact and the signature or thumb impression, as the case may be, is not tampered with, and despatch the part or, as the case may be, one of the parts of the sample under its own seal to the Director of Central Food Laboratory who shall thereupon send a certificate to the Court in the prescribed form within one month from the date of receipt of the part of the sample specifying the result of the analysis."

7. The intendment of this sub-section clearly is to ensure that the possibility of any tampering with the sample should not only be excluded but the fact that there existed no possibility of tampering with a sample should also appear from some observation record