Holding

The High Court was not justified in confirming the acquittal; hand churning can make a curd sample homogeneous and no finding of inadequate churning was made.

Summary

The Food Inspector of the Baroda Municipal Corporation purchased curd from the respondents' shop and sent samples for analysis, which showed marginal adulteration. The trial court convicted the respondents under the Prevention of Food Adulteration Act, 1954, but the Sessions Judge acquitted them on the ground that the curd sample had not been properly churned to make it homogeneous and representative. The High Court affirmed the acquittal, holding that the prosecution failed to prove that churning was done by any instrument and therefore could not establish a proper sample. On appeal, the Supreme Court examined whether hand‑churning could satisfy the requirement of a homogeneous sample under the Act and Rules. It held that the Act and Rules do not mandate churning by a specific instrument and that hand churning can render a sample homogeneous; moreover, no finding was made that the hand churning was inadequate. Consequently, the Court dismissed the appeal, finding the High Court’s confirmation of the acquittal unjustified.

Issues considered

Whether churning of a curd sample by hand satisfies the requirement of making the sample homogeneous and representative under the Prevention of Food Adulteration Act, 1954 and its Rules.
Whether the failure of the prosecution to prove that churning was done by an instrument justifies acquittal of the accused.

Legislation cited

Code of Criminal Procedure, 1973s. 248(2)
Prevention of Food Adulteration Act, 1954s. 11, s. 13(3), s. 16(1)(a)(1), s. 2-B, s. 7(1)
Prevention of Food Adulteration Rules, 1955s. Rule 14, s. Rule 15, s. Rule 16, s. Rule 20, s. Rule 22

Subjects

Food adulterationSample homogeneityCurdChurningPrevention of Food Adulteration ActCriminal appealEvidence

Judgment

FOOD INSPECTOR, MUNICIPAL CORPORATION,
BARODA

v.
B
MADANLAL RAMLAL SHARMA AND ANOTHER.

December 14, 1982

(D.A. DESAI AND R.~. t,flSRA, JJ.].

Prevent/on of Food Adultlralion Act, 1954-Pr~Parati~n of sample for
c
anoly1is-Milk and Milk preparations including curd-Churning by hand makes
sample homogeneous and representa'tiv~Law does not 'rtQuire ChuMing by any
instrument.

The re-spondfut · was convicted and seOtCDced rOr an offence under the
Prevention of Food Adulteration Act, 1954 oil l! complaint that a sample of curd D
purchased from his shop had been found not to confotm ·to the standard pres-
cribed. He preferred an appeal and the Sessions Judge acquitted him on the
short ground that the sa:mple was not hoaiogeneous and representative of the
Curd purchased as the curd had ·not been· churned properly before i.t 'w8s sent for
analysis. The High Court affirmed this conclusioD. and dismissed the 3ppeats
filed against the order of acquittal.
E
The High Court, in preference to the evidence of the complainant that the
churning of the sample had h«!t done with a spoon, placed reliance .on the evi-
dence led by the defence that the churning had not been done by .any instrument
but it had been done by the complainant wi.th his hand. The High Court stated that
-"" since the prosecution had not challenged the defence version that ~be churning of
the SOfllple had been done by means of hand alone, it had failed to prove that
the churning bad beeil done io·a t)roilCr manner. ·· · · '

Declining to interfdro with the acquittal of the respondent by !he two
lower couris after ·a li!p!e Of lix years and dismissing the appeal,

HELD : In milk and milk preparations including curd, it is distinctly
possiblejhat the fat settles . on the top and in.orde.r to find out whether the milk G
ot its pi'eparation ~such as curd has prescrihed' content, the Sim.pie must be
so
homogeneous and representative that:the analysis c:an furnish reliable proof of
nature and content of the article of food 4lDder analY.is. For this purpdse
. churn,ing is one of the methods of makil)g th<; sample ~omoseneous and repre..n-
tative. But, there is nothing in the Act w tho Rules which .prescribes tbat H
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 SUPIBMB COUIT HPOITS (1983) 2 s.c.a.

A properly mi•·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
io the container. (14 C-EJ

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 10 act upon
B it disagreeing with the other evidence, the evidence of defence witness was that
churning was done with band, and be did no_t SI)' that . the churning was not
effective. It is therefore difficult to subscribe to the view or the High Court that
the churning done by hand would n~t meet with the requirements of making a
sample homogeneous and representative. There has to be a finding that the
churning done with band was not_ adequate. There is no such finding. The
Hish Court was, tbertforC, .dot jUstifted i~ coD&i"Ot!oS t~c acquittal on this
ground. [14 F·H; 1$ A]

CRIMINAL APPBLLATB JURISDICflON : Criminal Appeal No. 605
of 1981.

Appeal by special leave from the Judgment and Order dated
D 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. Bhandtire, T. Sridharall, Mr8. S. Bhandare and Mi8s C.K.
Sauhantia for the Appellant.
E Miss Maya Rao for Respondent No. 1.
t
J.L. Jain and R.N.- Poddar for Respondent No. 2.
The Judgment of the Court wa1 delivered by

F
. ' ·. .
MISRA, J. lo this appeal by special leave the narrow questiou 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 mao11cr so as to make the
sample homogeneous and representative.

G The few relevant facts arc that Shri G. A. Parikh Food
Inspector attached to Baroda MuniCipaJ Corporation visited the shop
of the respondent No. I accused Madaolal Ramlal Sharma on
September 4, 1976 around 7.20 a.m. He purchased curd from a
container having 2· I /2 Kg of ctJrd for the purpose of analysis.
H
There was 'a bo_ard hanging on the outer side of the c<;miaioer that
'FooD INSPECTOR v. MADAN LAL (Misra, J.) II

the curd is prepared ·from cow's milk. The Food Inspector
A
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,
B
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 Corpora-
tion, for analysis of article of food. The report of thb public
analyst shows that the sample of curd contained 3% milk fat and
1J.7% milk solid non.fat. On the other hand, the report of the
Central Food Laboratory, Calcutta (Ex. 15) shows that milk fat
was 2.9% 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 D
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 (I) read with
section 16 (l)(a)(I) of the Prevention of Food Adulteration Act,
1954 /and sentenced him to suffer rigorous imprisonlllent for four E
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 F
Additional Sessions Judge who beard the appeal, int~ 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 .tbe accused.
G
Two appeals were preferre.d against the judgn1ent of the
learned Sessions Judge. Criminal Appea1 N'o. 218 of 1978 was
prefered by the State of Gujarat and Criminal Appeal No. 60'3 of
-· 1978 was preferred by the complainant Food Inspector. A
divisfon Bench of the Gujarat High Court disposed of both the.
appeals by a common judgment. The High Court affirmed the
SUPREME colJitt REPORTS [1983] ~ S.C.R.

A acquittal observing that 'the conclusion is inescapable that the
prosecution has failed to prove that tbe 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.

B 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 couusel Mr. M. C. Bhandare for the appellant, Food
Inspector and the learned connsel Mr. Naio appearing for the State
c of Gujarat second respondent supporting the appellant, urged that
irregularity in churning the curd before sampiing the same in bottles,
as found by the High Court, if allowed to remain unquestioned,
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•

it would have an adverse effect on a large number of pending
cases. We are, therefore,. only inclined to examine the legal
D 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 Pre-
vention of Food Adulteration Act because these offences have the
E 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.

F
..
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
bas to be sent to the public ·analyst/Director of Central Food
Laboratory for analysis. The Standard for cow's milk for
G 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·mi!k solids non-fat as the milk from which it is
prepared. Section 13 (3) of the Act, provides that the certificate
H issued by the Director of Central Food Laboratory under Section
2-B shall supersede the report given by the public analyst under
FOOD INSPECTOR v. MADAN LAL (Misra, J.) 13

· _sub•section (I}. The report of Central Food Labqtatoty 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 representativei
·churning was not done as required and therefore the sample was
8
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
.-) i
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
c
complainant bad done it with his band and thereafter curd was
divided into three parts, and three sample bottles were filled. The
·High Court then observed that on this point Devsibbai Ramjibhai
bad not been cross examined. The High Court while proceeding to
appreciate the evidence of Dcvsibhai Ramjibbai accepted it_in pre- D
ference .lo the other eviden.ce ·of the. complainant who had stated
that the churning was done with a spoon. Then comes.the observa-
tion of the High ·Court which clinches the matter. It reads as
under:

."But fortunately for the prosecution when the spoon E
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 defenc~ which has been given by the defence
witness on oath. In the absence of that, unfortunately, f
we have come to the conclusion that the prosecution bas
failed to prove that the churning. was done in a proper
manner so as fo make the entire curd one and all the
samples would be identical in themselves."
G
The High Court held that on this short ground alone the acquittal
must be affirmed. With respect, we find it very difficult to
subs_cribe 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 shi!ll H
14 SUPIU!lft! COURT IU!POlTS • [1983) 2 s.c.tt.

be closed sufficiently, tight to prevent leakage, evaporation, or in
A the case of dry substance, entrance of moisture and shall be care-
fully 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
B 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
c the Rules making it obligatory that churning should be done with
some machine so as to make a sample homogeneous and representa-
tive sample. We are conscious of the fact that in milk and milk pre-
parations including curd, it is distinctly possible that the fat settles
on the top and in order to find out whether the milk or its prepara-
tion snch as curd has prescribed content, the sample must be
D 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
E 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 9.uan-
tity in the container. There was evidence that the churning was done
F 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
G High Court that the churning is required to be done by some instru·
ment 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 110 such finding. We are, therefore, of the

"
FOOD INSPECTOR v. MADAN LAL (Misra, J.} 15

opinion that the Hi*h /Conti was not justified in confirming the A
acquittal on this ground.

Having made the position in law clear, as we understand. it,
we deeline to set a:siile · tlit ~cquitial. Subfect to above observation
• the appeal is di1miased.
B
H.L.C• Appeal dismissed.

•

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