B.M.L Garg, General Manager, Milk Plant Hoshiarpur v. Union Territory, Chandigarh .

Madan Mohan Punchhi, J. (Oral):— There are two petitions under section 482 of the Code of Criminal Procedure, being Criminal Misc. Nos. 1864-M and 1524-M of 1986 in which the relief claimed is the same. Facts may be noted from Criminal Misc No. 1864-M of 1986.

2. At the Milk Bar at Bus stand at Chandigarh, the Food Inspector took sample of flavoured milk after observing all due formalities. The sample sent to the Public Analyst revealed the result that Milk solids fats were 4.2 percent against the prescribed standard 1.5 percent and milk solids non-fat were 7.2 percent against the minimum prescribed 9 percent. Thus, the sample being deficient in milk solids non-fat, the Food Inspector launched prosecution against the retailer vendor. The first petitioner, who is the General Manager of the Milk Plant, Hoshiarpur, belonging to the Punjab Diary Development Corparation and the retailer dealer, the employee of the Corporation, were sent up for trial. In availing of the concession under section 13(2) of the Prevention of Food Adulteration Act, 1954. (hereinafter referred to as the Act), the accused required to have the second sample, kept by the Local Health Authority, analysed by the Central Food Laboratory. The Director of the Central Food Laboratory gave a report which was quite divergent from the one given by the Public Analyst. According to the Director's report, milk solid facts were found only 2 percent and milk solids non-fat 11.8 percent i.e, above the prescribed standard. This report, when brought on the record, gave an occasion to the petitioners to challenge the proceedings before the trial Magistrate by means of approaching this Court under section 482 of the Code of Criminal Procedure. Four points have been raised by the learned counsel for the petitioners. They are noticed and dealt with hereafter.

3. The first point is regarding the non-stirring of the milk and its non-mention in the complaint. This argument was based on two Division-Bench judgments of this Court rendered in State v. Inder Singh, 1984 (1) FAC 166 and State v. Ram Dhan Singh 1983 Recent CR 56 : 1983 (1) FAC 199. These Division-Bench cases have later been considered by this Court in State of Haryana v. Jagan Nath, Criminal Appeal No. 502-DB of 1984 decided on 30.5.1986, in which it has been hold that if there is no mention in a complaint about the stirring of milk before taking samples, then that fact by itself does not tell on the competency of the complaint or the power of the Magistrate to take cognizance thereof. The omission in the complaint would have to be viewed in the light of the evidence recorded and it has been left open to the Court to test the credibility of the Food Inspector whether or not he mentions that stirring, before hand, of the milk had taken place. Thus, on this ground, neither the complaint nor the proceedings can be quashed us being without jurisdiction. The petitioners would be left to make use of the ommission at the appropriate time at the trial.

4. The second objection is to the competency of the complaint on the adulteration as spelled out in the report of the Public Analyst. To put it simply, the complaint is that there was shortage of milk solid non-fats and this was the adulteration complained of. Now, it is urged that the Director's reports which supersedes the report of the Public Analyst under sub-section (3) of section 13 of the Act makes the adulteration a different one inasmuch as it is now on account of the deficiency in milk solid fats. Reliance has been placed on a decision of Pritpal Singh, J., in Ravi Ghai… v. State Of Punjab…., 1984 (2) Recent Criminal Reports 520, to contend, that when the report of the Director spells out a new adulteration then the earlier complaint cannot be allowed to proceed. In that case, sample of ice cream was taken, which was found to be adulterated by the Public Analyst because there was deficiency in milk fats. The Director of the Central Food Laboratory, however, opined that the sample contained more than the prescribed milk fats. The Director found, in addition, some starch present in the sample. Now the presence of starch in the sample, as detected by the Director, was obviously an adulteration newly dedected. The Food Inspetor, while framing his complaint, was obviously oblivious of that fact. Naturally, he could not take that ground in his complaint to prosecute the accused for presence of starch in the sample. Besides this the Advocate appearing for the State in that case conceded the proposition that no complaint in such circumstances could proceed against the accused. It is for these two reasonings that the Hon'ble Judge quashed the proceedings. At the same time, it was noted with approval that the State could proceed further separately on the basis of the Director's report against the accused in accordance with law.

5. Here, the position is altogether different. Ravi Ghai's case (supra) and other cases cited in support of the view can be of no assistance to the petitioners' cause. The scheme of section 13 of the Act itself reveals the value of the report of the Director of the Central Food laboratory It is plain that the legislature was aware of the fact that the report of the public Analyst may have to be questioned on the anvil of the report of another expert. The second expert, they thought, should be the Director of the Central Food Laboratory. The Legislature, ail the same did not consider it prudent to multiply such reports and set this at rest by providing in subsection (3) of section 13 of the Act that the certificate issued by the Director of the Central Food Laboratory under sub section (2-B) shall supersede the report given by the Public Analyst under sub-section (1). This provision in the context obviously is meant to oust the report of the Public Analyst. In other words, it means that, in place of the report of the Public Analyst, the report of the Director would form the basis of the prosecution and the fate of the case would depend thereon. In the nature of things possible divergence in such reports was anticipated Finality only had been put to the report of the Director. But further under the proviso to sub-section 5 of section 13 of the Act, it was provided to treat such certificate as conclusive evidence of the facts stated therein. Viewed from this angle, the complaint against the petitioner is that the flavoured milk, stored for sale and purchased by the Food Inspector was adulterated inasmuch as it did not meet the prescribed standards The report of the Director does not, in any event blunt that allegation Even now the said milk remains adulterated in accordance therewith as it does not meet the prescribed standarhs. It is only the Jagarons which have varied without causing any affection to the allegations in the complaint with regard to the milk being substandard. Thus, in the instant case, the allegations in the camplaint with regard to the report of the Public Analyst would deemingly be substituted by the report of the Director of the Central Food Laboratory so as to attune to the adulteration complained of. Thus, I am of the considerd view that second point raised by the petitioners' counsel is of no substance and accordingly the same is rejected.

6. The third point raised is that the complaint does not embody the allegations that the petitioners were the nominees of the Corporation. Section 17 of Act takes care of offences committed by companies. The complaint Food Inspector is not always supposed to know who has been nominated as such under section 17(i)(a) of the Act. When no person is nominated, every person who, at the time the offence was committed, was incharge of, and was responsible to the Company for the conduct of the business of the Company, is deemingly guilty besides the Company, Thus, it is one and the other, i.e, the Company and the nominated person. If not, then it is the Company and every other person who, at the time of the commission of the offence, was incharge of and responsible to the Company for the conduct of the business of the Company. The provision starts with a deeming guilt of the aforesaid persons and persons and it is only at the time of the determination of the guilt qua a particular person that liability is to be fixed. Of course, the Company has to aid the Court in that regard on whom liability is to be fixed. The complaint can proceed against the petitioners on the principle of deemed guilt and if they are not responsible, they can always take up a plea before the learned Magistrate and invite a decision thereon. This contention too is repelled.

7. The last question raised is that the Food Inspector was not duly authorized to file a complaint. Reliance is placed on a notification dated 18-2-1986. Whether a particular Food Inspector stood authorized is a mixed question of law and fact. It cannot be said that there was only one notification governing the subject. This matter too has to be raised first by the petitioners before the learned Magistrate.

8. For what has been said above, there is no merit in Criminal Misc. No. 1864-M of 1986 which ordered to be dismissed.

9. So far as Criminal Misc. No. 1524-M of 1986 is concerned, the second point, above decided, is inapplicable, for the second sample was not sent to Director of Central Food Laboratory. The remainting three questions, as raised in this petition, have been answered above, and their answers require the dismissal of this petition as well.

Order accordingly.