Delhi District Court
Fi vs . Desh Pal Singh Etc. Page 1 Of 25 on 16 August, 2013
IN THE COURT OF SHRI BALWANT RAI BANSAL
ADDITIONAL CHIEF METROPOLITAN MAGISTRATEII,
PATIALA HOUSE COURTS, NEW DELHI
C.C. No. 29/02
Food Inspector
Department of PFA
Govt. of NCT of Delhi
A20, Lawrence Road
Indl. Area, Delhi - 35
........ Complainant
Versus
1. Sh. Deshpal Singh S/o Sh. Balbir Singh
Driver of vehicle No. DL1LB2372
R/o F142/A, Khajuri Khas Colony, Delhi
........ VendorcumDriver
2. Sh. Joginder Singh
R/o 99, Arthala Mohan Nagar, Ghaziabad (U.P.)
........ Distributor
3. Sh. V.K. Tiwari, General Manager,
M/s Parag Dairy, Noida (Discharged vide order
(An autonomous Unit of PCDF Ltd., Lucknow) dated 12.03.2007 of the
B219, PhaseII, Noida (UP) Hon'ble Delhi High Court)
........ Chairman of Parag Dairy
4. Sh. V.K. Paliwal, Incharge (Quality Control)
M/s Parag Dairy, Noida
(An autonomous Unit of PCDF Ltd., Lucknow)
B219, PhaseII, Noida (UP)
........ Nominee of Parag Dairy
CC No. 29/02
FI Vs. Desh Pal Singh Etc. Page 1 of 25
COMPLAINT U/S 16 OF THE PREVENTION OF FOOD ADULTERATION
ACT, 1954
Serial number of the case : 29/02
Date of the commission of the offence : 08/07/00
Date of filing of the complaint : 04.02.2002
Name of the Complainant, if any : Shri Hukam Singh, Food
Inspector
Offence complained of or proved : Violation of Section 2 (ia) (a) & (m)
of PFA Act 1954; punishable U/s
16(1) (a) r/w Section 7 of PFA Act
Plea of the accused : Pleaded not guilty
Final order : Acquitted
Arguments heard on : 30.07.2013
Judgment announced on : 16.08.2013
J U D G M E N T
1. The present complaint has been filed on 04.02.2002 by the Delhi Administration through FI Sh. Hukam Singh against the accused persons. It is stated in the complaint that on 08.07.2000 at about 5.00 AM, FI Hukam Singh purchased a sample of 'Pasteurized Toned Milk', a food article for analysis from Sh. Deshpal Singh S/o Sh. Balbir Singh, Driver of Vehicle No. DL1L B2372, which was intercepted at Bhairomarg Crossing, Near National Science Centre, Pragati Maidan, New Delhi where the said food article was found stored in crates for distribution for sale. The sample consisted of 2 x 500 ml. sealed poly packets of 'Pasteurized Toned Milk' taken from crates lying in vehicle bearing identical label declaration. The sample was taken under the selection and supervision of Sh. Kamal Dev Dogra, SDM/LHA after shaking CC No. 29/02 FI Vs. Desh Pal Singh Etc. Page 2 of 25 both the poly packets and then cutting open the poly packets and Pasteurized Toned Milk was put in a clean and dry jug and mixed again by pouring and re pouring with the jug and one of the emptied poly packet. Thereafter, the sample was divided into three equal parts by putting it in three clean and dry glass bottles and 27 drops of formalin were added to each bottle and thereafter each bottle containing the sample was separately packed, fastened and sealed according to the PFA Act and Rules. The signatures of vendor were obtained on the LHA slip and the wrapper of the bottles containing the sample. Notice in Form VI was given to accused and price of sample was also given to him vide vendor's receipt dated 08.07.2000. Panchnama was also prepared at the spot. All these documents prepared by FI Sh. Hukam Singh were signed by accused Deshpal Singh, the vendor and the other witness Sh. P.N. Khatri, FI. It is stated that before taking the sample, efforts were made to get the public witnesses to join the proceedings, but none came forward.
2. It is further stated that one counterpart of the sample in intact condition was sent to the Public Analyst, Delhi and two counterparts of the sample in intact condition were deposited with LHA. The Public Analyst analyzed the sample and opined that "The sample does not conform to standard because milk fat and milk solids not fat are less than the prescribed minimum limit of 3.0% and 8.5% respectively".
3. It was revealed that vendorcumDriver Deshpal Singh S/o Sh. Balbir Singh was driving the vehicle No. DL1LB2372 which was intercepted at Bhairon Marg Crossing, Near National Science Centre, Pragti Maidan, New Delhi. He stated that he has purchased the sample commodity CC No. 29/02 FI Vs. Desh Pal Singh Etc. Page 3 of 25 from M/s Parag Dairy, Noida (An autonomous Unit of PCDF Ltd., Lucknow), vide challan No. 6571. He further stated that he is salesman and working under Sh. Joginder Singh who is an approved distributor of M/s Parag Dairy which has its manufacturing unit in Noida. As per letter dated 11.10.2000 of the General Manager, M/s Parag Dairy, the Secretary, Dairy Development to the Govt. of UP is the Chairman of M/s Parag Dairy, Noida who is also the Managing Director of PCDF Ltd, Lucknow. It is stated that Sh. V.K. Tiwari, General Manager was the MemberSecretary at the time of sampling and Sh. V.K. Paliwal, Incharge (Quality Control) was the PFA nominee and as such both V.K. Tiwari and V.K. Paliwal are incharge and responsible for the conduct of the business of M/s Parag Dairy. It is further stated that after conclusion of the investigation, the entire case file was sent to the Director, PFA who accorded the requisite consent U/s 20 of the Act and consequent thereto the present complaint was filed against the aforesaid accused persons for violation of provisions of section 2 ((ia) (a) & (m) of the PFA Act, 1954 which is punishable U/s 16 (1) (a) (i) r/w Section 7 of the Act.
4. The accused were summoned vide order dated 04.02.2002. All the accused appeared and an application U/s 13 (2) of the PFA Act was moved by accused no. 4 to get analyzed the second counterpart of the sample from Central Food Laboratory (CFL). The said application was allowed and consequently second counterpart of the sample was sent to CFL, Calcutta for analysis. Director, CFL on analysing the second counterpart of the sample in question opined vide his Certificate dated 01.04.2002 that "The sample of Toned Milk is adulterated."
CC No. 29/02 FI Vs. Desh Pal Singh Etc. Page 4 of 255. Notice for violation of Section 2 (i) (a) & (m) of the PFA Act, punishable U/s 16 (1) (a) (i) r/w section 7 of the PFA Act was framed against all the accused persons separately vide order dated 05.05.2003 to which all the accused persons pleaded not guilty and claimed trial.
6. It is pertinent here to mention that proceedings qua accused no. 3 were quashed by the Hon'ble Delhi High Court vide order dated 12.03.2007 and accordingly accused no. 3 was discharged from the present case.
7. Thereafter, in order to prove its case, prosecution examined three witnesses namely Sh. Hukam Singh, Food Inspector, who conducted the sample proceedings as PW1, Sh. Kamal Dev Dogra, the then SDM/LHA as PW2 and Sh. P.N. Khatri, FI as PW3 and PE was closed vide order dated 09.03.2011.
8. Statement of accused no. 1, 2 and 4 U/s 313 Cr.P.C. was recorded separately on 02.06.2011 wherein they claimed themselves to be innocent and accused no. 1 and 2 opted to lead evidence in their defence. However, both accused did not lead any evidence in their defence and DE was closed vide order dated 18.08.2011.
9. I have heard the Ld. Counsel for the parties and perused the record carefully.
10. Ld. Counsel for accused no. 1 has argued that accused no. 1 has nothing to do with the sample commodity and the Pasteurized Toned Milk, sample of which was lifted belongs to M/s Parag Dairy of which accused no. 4 is the nominee. He further argued that accused no. 1 was not authorized to sell the milk and he was working as a transporter under accused no. 2 and used to CC No. 29/02 FI Vs. Desh Pal Singh Etc. Page 5 of 25 transport the milk manufactured by M/s Parag Dairy on behalf of accused no.
2. Ld. Counsel for accused no. 1 further argued that even otherwise, there is huge delay in filing the complaint due to which valuable right of accused U/s 13 (2) of PFA Act stood frustrated as by the time the second counterpart of the sample was reexamined by the Director, CFL, the shelf life of the sample commodity being milk product and perishable in nature had already expired and correct analysis from the Director, CFL could not be obtained. He further argued that there are variations in the report of Public Analyst and Director, CFL which suggests that a representative sample was not lifted by the Food Inspector, benefit of which should be given to the accused.
11. Ld. Counsel for accused no. 2 vehemently argued that accused no. 2 was not a distributor of sample commodity and he was only a transporter and used to transport the milk manufactured by M/s Parag Dairy to its distributors. He further argued that accused no. 2 had no connection with the sale and quality of the sample commodity and he was only supplying the milk as a transporter on behalf of Parag Dairy after hiring the truck from accused no. 1 and, therefore, accused no. 2 is not liable for alleged adulteration found in the sample commodity. He further argued that even otherwise, a representative sample was not lifted by the Food Inspector which is evident from the variations in the report of Public Analyst and Director, CFL and, therefore, accused are liable to be given benefit of doubt.
12. Ld. Counsel for accused no. 4 argued that there is no evidence to connect the sample commodity with accused no. 4 and it shows that sample packets of milk were spurious. He further argued that complaint has been filed CC No. 29/02 FI Vs. Desh Pal Singh Etc. Page 6 of 25 after a long gap of 19 months from the date of lifting the sample and by that time shelf life of the sample commodity which was of milk product had expired and thus the accused could not get reliable analysis from Director, CFL. He further argued that milk was not properly homogenized before lifting the sample and that is why there are variations in the report of Public Analyst and Director, CFL, benefit of which is liable to be given to the accused persons. Ld. Counsel for accused no. 4 further argued that Food Inspector was not empowered to lift the sample by intercepting the milk van and, therefore, prosecution of the accused is bad and accused are entitled for acquittal.
13. On the other hand, Ld. SPP for complainant has argued that accused no. 1 was found in possession of the sample commodity i.e. Pasteurized Toned Milk which was meant for sale for human consumption in a van which was driven by him and sample commodity on analysis was found to be adulterated and, therefore, accused no. 1 is liable for prosecution. He further argued that there is no delay in filing the complaint and complaint was filed within limitation. He further argued that no benefit of variations in the report of Public Analyst and Director, CFL can be given to the accused persons because report of Director, CFL being conclusive supersedes the report of Public Analyst and as per report of Director, CFL, the sample commodity was found to be adulterated. Ld. Prosecutor has further argued that there is sufficient evidence on record to show that accused no. 2 is the distributor of M/s Parag Dairy, manufacturing firm of the sample commodity, of which accused no. 4 is the Nominee and, therefore, accused no. 4 being Nominee and accused no. 2 being distributor of manufacturing firm of sample CC No. 29/02 FI Vs. Desh Pal Singh Etc. Page 7 of 25 commodity have rightly been impleaded and prosecuted for commission of the offence under PFA Act. He further argued that Food Inspector was within his power to lift the sample after intercepting the milk van as provided under Section 10 of PFA Act. He further vehemently argued that prosecution has been able to prove its case against all the accused persons beyond reasonable doubt and hence they are liable for conviction.
14. All the witnesses examined by the prosecution have deposed more or less as per the averments made in the complaint. PW1 FI Hukam Singh who conducted the sample proceedings deposed in his examinationin chief that on 08.07.2000 at about 5.00 AM, he along with FI Usha Kiran, FI P.N. Khatri, FA Ashok Kumar and other staff under the direction and supervision of LHA/SDM Sh. K.D. Dogra intercepted one vehicle No. DL 1LB2372 at Bhairon Marg Crossing Near National Science Centre, Pragati Maidan, New Delhi, carrying carats of Pasteurized Toned Milk, ready for sale for human consumption. He further deposed that he disclosed his identity and intention for taking sample of Pasteurized Tone Milk in sealed polypack bearing identical label declaration, for which vendor/driver Desh Pal Singh agreed and thereafter at about 5.00 a.m. he purchased 2 poly packets of Pasteurized Toned Milk on payment of Rs. 14/ vide vendor's receipt Ex. PW1/A and the so purchased poly packets were properly shaken and cut open from one corner and poured into a clean and dry jug and milk was mixed by pouring and repouring. Thereafter, he divided the sample into three equal parts by putting them in three clean and dry glass bottles and 27 drops of formalin were added to each of the sample bottle and was properly shaken for CC No. 29/02 FI Vs. Desh Pal Singh Etc. Page 8 of 25 its uniform distribution and thereafter each bottle containing the sample was separately packed, fastened and sealed according to PFA Act and Rules. He further deposed that then notice Ex. PW 1/B was prepared and a copy of it was also given to the accused and Panchnama Ex. PW1/C was also prepared at the spot and all the aforesaid documents were read over and explained to the accused who after understanding the same signed the same. He further deposed that vendor informed that he is the salesman of Sh. Joginder Singh and made endorsement on notice Ex. PW1/B that he is carrying the milk of Parag Dairy and accordingly Notice U/s 14A Ex. PW1/D addressing to Parag Dairy, Noida was prepared at the spot and was sent through registered post. He further deposed that one counterpart of the sample was deposited with the PA on 09.07.2000 vide receipt Ex. PW1/E and two counterparts of the sample were deposited with the LHA on the same day vide receipt PW1/F.
15. During his deposition, PW1 has also placed on record the report of Public Analyst as Ex. PW1/G, statement furnished by vendorcumdriver during investigation as Ex. PW1/H along with photocopy of the Bill of M/s Parag Dairy, Noida in favour of Joginder Singh which is Mark X and photocopies of registration certificate of the vehicle and DL which are Mark Y & Z, reply sent by Joginder Singh as Ex. PW1/I, letters sent by him to CMO, Dist. Gautam Budh Nagar and CMO, Ghaziabad as Ex. PW1/J1 to Ex. PW1/J5 regarding constitution of M/s Parag Dairy, letter sent by him to M/s Parag Dairy, Noida dated 19.09.2000 as Ex. PW1/K, its reply sent by M/s Parag Dairy, Noida as Ex. PW1/K1 along with photocopy of bill Mark X 1, photocopy of appointment of Sh. Joginder Singh, Distributor of M/s Parag CC No. 29/02 FI Vs. Desh Pal Singh Etc. Page 9 of 25 Dairy, Noida Mark Y1 and photocopy of Form VII i.e. Nomination of V.K. Paliwal Mark Z1, letter Ex. PW1/L, reminders Ex. PW1/L1 to Ex. PW1/L2 sent to M/s Parag Dairy, Noida, its reply Ex. PW1/L3, consent given by the Director, PFA for initiating the prosecution against the accused persons as Ex. PW1/M, complaint filed by him as Ex. PW1/N, copy of intimation letter sent to the accused along with PA report as Ex. PW1/O and copy of postal registration receipt as Ex. PW1/P.
16. PW2 Sh. Kamal Dev Dogra, the then SDM/LHA under whose supervision and direction, sample proceedings were conducted and PW3 Sh. P.N. Khatri, who was made a witness in the sample proceedings have deposed more or less on the similar lines as deposed by PW1 in his examinationin chief.
17. PW1 in his crossexamination conducted by Ld. Counsel for accused no. 2, inter alia, denied the suggestion that wrong method for mixing the milk was adopted. He could not say if the milk is properly homogenized, the variations of 1% in SNF can occur by two Analysts. In his cross examination conducted by Ld. Counsel for accused no. 4, he admitted that the complaint was filed after the period of seventeen months. He denied the suggestion that complaint was filed deliberately delay to deprive the accused in exercising his right under Section 13 (2) of the PFA Act to get the correct analysis.
18. Similarly, PW2 in his crossexamination conducted by Ld. Counsel for accused no. 2 denied the suggestion that the milk was not made homogenize and two divergent reports are the result of the same. In his CC No. 29/02 FI Vs. Desh Pal Singh Etc. Page 10 of 25 crossexamination conducted by Ld. Counsel for accused no. 4, PW2 again denied the suggestion that a representative sample was not taken. PW3 also in his crossexamination conducted by the Ld. Counsel for accused no. 4 denied the suggestion that the method of homogenizing of milk adopted in this case was wholly improper or that the milk was not homogenized at all.
19. Accused no. 1 in his statement recorded U/s 313 Cr.P.C. has not disputed the fact that on 08.07.2000 at 5.00 AM, he was driving the vehicle No. D 1L B2372, wherein poly packets of Pasteurized Toned Milk of 500 ml each were found stored in crates for distribution/ for sale and the vehicle was intercepted by the PFA team including FI Hukam Singh and FI P.N. Khatri under the supervision and direction of SDM/LHA Sh. K.D. Dogra at Bharion Marg Crossing, Near National Science Centre, Pragti Maidan, New Delhi and a sample of Pasteurized Toned Milk was lifted by FI Hukam Singh which on analysis was found to be adulterated. However, accused no. 1 has taken a defence that he never disclosed himself as salesman and he was not competent and authorized to sell the sample commodity and for the said reasons he did not accept the price of the sample commodity. Though, accused no. 1 admitted that he was the registered owner of the vehicle, but he contended that he has nothing to do with the sample commodity and the said milk belongs to M/s Parag Dairy, Noida and was handed over to him by Sh. Joginder Singh for further delivery to the distributors in Delhi and Gole Market. It was further contended by accused no. 1 that he was the registered owner of the vehicle and was working as a transporter for 4 years under Joginder Singh and used to get transportation charges from Joginder Singh and used to transport the milk to CC No. 29/02 FI Vs. Desh Pal Singh Etc. Page 11 of 25 the distributors of M/s Parag Dairy on behalf of Sh. Joginder Singh and he also handed over photocopy of Delivery Challan to the FI at the time of sampling as a proof of the ownership of the milk.
20. Accused no. 2 in his statement recorded U/s 313 Cr.P.C. though feigned ignorance regarding sample proceedings stating that he was not present at the stop, but he contended that Desh Pal Singh had given a wrong statement to the FI and Desh Pal Singh was simply a driver and was not his supply man nor he gave sample on his behalf. He further contended that there is no agreement between him and Desh Pal that he will supply the milk on his behalf. It was further contended by accused no. 2 that he had hired truck of Desh Pal Singh and sent it to Parag Dairy, who was the manufacturer of the milk, for supply milk in the capacity of transporter and his arrangement with Parag Dairy was only for transportation of milk to its distributors.
21. Accused no. 4 who has been impleaded as Nominee of M/s Parag Dairy in his statement U/s 313 Cr.P.C. has disputed the sale of sample commodity by his company contending that the packets of milk out of which the sample was taken were not manufactured/packed or sold by his company as the packets did not bear any Batch number or the date of packing, which shows that the packets were spurious, whereas all their packets were having batch number and date of packing is invariably mentioned. It was also contended by accused no. 4 that the milk was not properly homogenized and the method adopted by the FI was not sufficient for proper homogenization of Milk. He further contended that the complaint was filed after a long gap thereby defeating the right of accused U/s 13 (2) of the Act for obtaining a CC No. 29/02 FI Vs. Desh Pal Singh Etc. Page 12 of 25 correct analysis report from CFL, Calcutta and there are vide variations between report of PA and CFL.
22. The present case has been launched against the accused persons on the basis of report of Public Analyst dated 25.07.2000, which has been proved on record as Ex. PW1/G. The Public Analyst vide her report Ex. PW1/G found the sample lifted from the accused no. 1 not conforming to the standards as milk fat and milk solids not fat were found less than the minimum prescribed limit of 3.0% & 8.5% respectively. The accused no. 1 has been impleaded in the present case being vendorcumdriver of the milk van from which the sample of 'Pasteurized Toned Milk' was lifted for analysis. On the disclosure of accused no. 1 at the spot, accused no. 2 has been impleaded as Distributor of manufacturing firm of sample commodity i.e. M/s Parag Dairy and accused no. 4 has been impleaded being Nominee of M/s Parag Dairy. On appearing, the accused no. 4 exercised his right U/s 13 (2) of PFA Act and accordingly second counterpart of the sample was sent to the Director, CFL, Calcutta who also vide his certificate dated 01.04.2002 found the 'milk fat' and 'milk solids not fat' less than the prescribed minimum limit and opined that sample is adulterated.
23. The case of the prosecution is that on 08.07.2000 at about 5.00 AM, one vehicle bearing No. DL 1LB 2372 was intercepted by PFA team at Bhairon Marg Crossing, Near National Science Centre, Pragti Maidan, New Delhi, which was being driven by accused no. 1, wherein poly packets of Pasteurized Toned Milk of 500 ml each were found stored for sale/distribution and a sample of said milk was lifted which on analysis was found to be CC No. 29/02 FI Vs. Desh Pal Singh Etc. Page 13 of 25 adulterated. It is further case of the prosecution that accused no. 1 had disclosed that he had purchased the sample commodity from M/s Parag Dairy, Noida vide challan No. 6571 and he is salesman and working under accused no. 2 Joginder Singh who is an approved distributor of M/s Parag Dairy.
24. While, accused no. 1 has claimed that he never disclosed himself as salesman of accused no. 2. As per accused no. 1, he was registered owner of the vehicle from which the sample of 'Pasteurized Toned Milk' was lifted and he was working as a transporter only under accused no. 2 and used to get transportation charges from accused no. 2 for transporting/handing over the milk manufactured by Parag Dairy to its distributors on behalf of accused no.
2. It was also contended by the accused no. 1 that he had also handed over the photocopy of the delivery challan to the Food Inspector showing ownership of the milk which was issued by M/s Parag Dairy in the name of accused no. 2.
25. PW1 FI Hukam Singh who conducted the sample proceedings though deposed in his evidence as per the averments made in the complaint, but in the crossexamination conducted by Ld. Counsel for accused no. 1, he admitted that no statement of vendor/driver was recorded at the spot to the effect that he is the salesman of Sh. Joginder Singh. He further admitted that vendor provided RC of the vehicle and he was the owner of the vehicle. He further categorically admitted that in his presence vendor had not sold the milk to any customer. He further admitted that mark X is the Gate pass/ challan and not a Bill and is in the name of Sh. Joginder Singh. He further admitted that vendor informed vide letter Ex. PW1/H that he had given the truck on rent to Sh. Joginder Singh to supply the milk.
CC No. 29/02 FI Vs. Desh Pal Singh Etc. Page 14 of 2526. In view of aforesaid categorical admission of PW1 and stand taken by the accused no. 1 in his statement recorded U/s 313 Cr.P.C. coupled with the statement of accused no. 2 recorded U/s 313 Cr.P.C. in which he admits that vendor Desh Pal Singh (accused no. 1 herein) was not his supply man nor he gave the sample on his behalf and further that Desh Pal Singh was simply a driver and not entitled to give the sample, it is evident that at the time of sample proceedings, accused no. 1 was not found selling the sample commodity. The Food Inspector intercepted the milk van containing the milk in question driven by the accused no. 1 which was on its way and it has come on record from the evidence of PWs that accused no. 1 was the registered owner of the vehicle in question and he was transporting the milk manufactured by Parag Dairy to its distributors on behalf of accused no. 2 on hire basis. Therefore, it cannot be said that accused no. 1 was selling the milk in question or salesman of accused no. 2 or was involved in any manner in sale of the milk. Hence, I find substance in the argument of Ld. Counsel for accused no. 1 that accused no. 1 had nothing to do with the sample commodity.
27. So far the liability of accused no. 2 is concerned, the defence of the accused no. 2 is that he was not a distributor of M/s Parag Dairy who manufactured the milk in question and his arrangement with the Parag Dairy was only for transportation of milk to its distributors. It is contended by accused no. 2 that there is no agreement between him and accused no. 1 to the effect that accused no. 1 will supply the milk on his behalf. As per accused no. 2, he simply hired the truck of accused no. 1 and sent it to Parag Dairy for CC No. 29/02 FI Vs. Desh Pal Singh Etc. Page 15 of 25 supplying the milk in the capacity of transporter and he has been falsely implicated in the present case.
28. While, the case of the prosecution against the accused no. 2 is that accused no. 1 had informed that he was the salesman of accused no. 2 who is an approved distributor of M/s Parag Dairy, manufacturing firm of the sample commodity. In this regard, PW1 has also placed on record the photocopy of the bill which was handed over by the accused no. 1 to him at the time of sample proceedings which is Mark X. The said bill has been issued by Parag Dairy in favour of accused no. 2 Joginder Singh. Though, accused no. 2 furnished a reply Ex. PW1/I in response to the letter sent by Food Inspector during investigation stating that he is the transporter of M/s Parag Dairy, Noida and he arranged the vehicle for M/s Parag Dairy, Noida and the bill was issued in his favour in the capacity of transporter. But, from the evidence of PW1, it is revealed that he sent a letter dated 19.09.2000 Ex. PW1/K to M/s Parag Dairy, Noida to confirm whether the sample commodity was sold by M/s Parag Dairy, Noida to Desh Pal Singh (accused no. 1) and Joginder Singh (accused no. 2) or not and received its reply from M/s Parag Dairy vide Ex. PW1/K1 that milk in question was handed over to Sh. Jogender Singh for distribution through Sh. Desh Pal Singh, the salesman and he was the distributor of M/s Parag Dairy, Noida who is manufacturer of the sample commodity. Along with the reply, photocopy of the appointment of accused no. 2 Joginder Singh as distributor was also provided by M/s Parag Dairy which has been placed on record as Mark Y1. As per accused no. 2, the document Mark Y1 was only a letter for distributionship offered to him by CC No. 29/02 FI Vs. Desh Pal Singh Etc. Page 16 of 25 M/s Parag Dairy to him, which he did not accept and his arrangement with Parag Dairy was only for transportation of Milk to its distributors.
29. In his crossexamination conducted by Ld. Counsel for accused no. 2, PW1 stated that no written agreement or indemnity bond was furnished to him by M/s Parag Dairy, Noida or Joginder Singh to show that agreement was executed regarding distribution. He could not say whether Mark Y1 is only an offer letter for distribution by M/s Parag Dairy to Joginder Singh. He was suggested that a false case has been made out against the accused no. 2, although, he had no concern with the sample commodity, which he denied.
30. Similarly, in the crossexamination of PW3 conducted by Ld. Counsel for accused no. 2, he stated that except the Challan Mark X, no other document showing the Contract/ Agreement between the Manufacturer/ supplier i.e. M/s Parag Dairy and said Joginder Singh, was shown by the vendor at the spot. Though, he admitted that word 'Pasteurized' is not there in Challan X before words 'Toned Milk' against Sr. No. 4., but he denied the suggestion that Pasteurized Toned milk and Toned Milk are two different kinds of Milk. Voluntarily, he stated that both are toned milk and as per PFA Rules, the Toned Milk can be sold only after being pasteurized. He stated that he cannot say that accused Joginder Singh had hired the truck from accused Desh Pal Singh, which was registered in his name or that Joginder Singh had further provided the truck to Parag Dairy for the supply of milk. He further stated that except the statement of accused Desh Pal Singh and the Challan produced by him, he has no knowledge from any other source that accused Joginder Singh had something to do with the sample commodity.
CC No. 29/02 FI Vs. Desh Pal Singh Etc. Page 17 of 2531. From the aforesaid crossexamination of PW1 and PW3 and statement of accused no. 2 recorded U/s 313 Cr.P.C., the contention of accused no. 2 appears to be that there was no agreement for distributorship between him and M/s Parag Dairy and bill Mark X was issued in his favour by M/s Parag Dairy in the capacity of transporter. However, perusal of document Ex. PW1/K1 would reveal that in response to the letter sent by Food Inspector, M/s Parag Dairy informed that sample commodity lifted on 08.07.2000 from vehicle No. DL 1L B 2372 belongs to them and the milk was haded over to Joginder Singh for distribution through Desh Pal Singh, his salesman. They also disclosed that Joginder Singh (accused no. 2 herein) was their distributor vide appointment letter Mark Y1. Perusal of the Bill Mark X would also reveal that same was issued in the name of accused no. 2 Joginder Singh. It is not the case of accused no. 2 that the Bill mark X is forged and fabricated one. There is nothing in the Bill Mark X to show that same has been issued in the name of accused no. 2 in the capacity of transporter as contended by accused no. 2.
32. From the aforesaid evidence, it is revealed that bill Mark X was issued in the name of accused no. 2 and he was appointed as distributor by M/s Parag Dairy, manufacturer of the sample commodity which is evident from the reply Ex. PW1/K1 as well as statement furnished by the accused no. 1 during investigation vide Ex.PW1/H. Though, accused no. 2 has taken a plea that document Mark Y1 is only an offer for appointment as a distributor which he declined, but no suggestion has been given to PW1 by the Ld. Counsel for accused no. 2 that accused no. 2 had not accepted the said letter of appointment for distributorship which was offered to him by M/s Parag Dairy CC No. 29/02 FI Vs. Desh Pal Singh Etc. Page 18 of 25 vide Mark Y1. Accused no. 2 has also not placed on record anything to show that he was working as a transporter only for M/s Parag Dairy and used to supply the truck to M/s Parag Dairy for supplying the milk to the distributors of M/s Parag Dairy.
33. From the entire evidence and material available on record, it is proved that bill Mark X has been issued by M/s Parag Dairy, manufacturer of sample commodity in the name of accused no. 2 in the capacity of distributor and not in the capacity of transporter as alleged by accused no. 2. As such, being distributor of the sample commodity, the accused no. 2 has been rightly implicated in the present case and his contention that he has nothing to do with the sample commodity and he has been falsely implicated in the present case is not tenable.
34. Now, coming to the contention of accused no. 4 that there is no evidence to connect him with the sample commodity. Accused no. 4 has been impleaded in the present case being Nominee of M/s Parag Dairy, the manufacturing firm of the sample commodity. Accused no. 4 in his statement recorded U/s 313 Cr.P.C. denied that sample commodity was manufactured/packed or sold by his company.
35. From the perusal of Notice in Form VI Ex. PW1/B prepared at the spot, it is apparent that as per label declaration on the sample packets, same was processed and manufactured by Parag Dairy (An autonomous unit of PCDF Ltd, Lucknow). Further, vide reply Ex. PW1/K1, which was written on the letter head of the firm M/s Parag Dairy, the firm admitted that the sample lifted on 08.07.2000 belongs to them and was handed over to accused CC No. 29/02 FI Vs. Desh Pal Singh Etc. Page 19 of 25 no. 2 who was their distributor vide challan No. 6571 dated 08.07.2000 and also provided the photocopy of the said challan/bill which is Mark X, original of same is Ex. PW1/D1. Perusal of same would reveal that same has been issued by Parag Dairy, Noida in the name of accused no. 2. Not a single suggestion has been given by Ld. Counsel for accused no. 4 to the PWs that sample commodity does not belong to M/s Parag Dairy, Noida of which accused no. 4 is the Nominee. Therefore, there is no merit in the contention of the accused no. 4 that sample commodity is neither manufactured nor packed by his company.
36. So far as the other contentions of the accused persons that a representative sample was not lifted by the Food Inspector and further that due to delay in filing the complaint, correct analysis from the Director, CFL could not be obtained are concerned, perusal of reports of Public Analyst and Director, Central Food Laboratory (CFL) shows that though both the Analysts found the sample not conforming to the standards as 'milk fat' and 'milk solids not fat' were found less than the prescribed minimum standard of 3.0% & 8.5% respectively, but there are variations in respect of fatty and non fatty solid of the sample commodity. As per report of Public Analyst (PA) Ex. PW 1/G, the 'milk fat' was found to the extent of 2.9%, while in the report of CFL, the 'milk fat' has been shown to the extent of 2.8%. Similarly, as per report of Public Analyst PW1/G, the 'milk solids not fat' in the sample was found to the tune of 8.44%, while the Director, CFL found the 'milk solids not fat' to the tune of 7.5%. Further, Public Analyst found the B.R. Reading of extracted fat at 40 deg. C as 43, whereas Director, CFL found the same as CC No. 29/02 FI Vs. Desh Pal Singh Etc. Page 20 of 25 43.6.
37. The aforesaid variations in the reports of Public Analyst and Director, Central Food Laboratory go to show that the sample was not properly mixed up and hence it cannot be said to be representative sample. In State Vs. Rama Rattan Malhotra 2012 (2) FAC 398 after relying upon various judgments titled as Kanshi Nath Vs. State 2005(2) FAC 219 and State Vs. Mahender Kumar & Ors, 2008 (1) FAC 177, the Hon'ble High Court of Delhi has held that, "Since in the present case, variation in public analyst and CFL certificates is more than .3%, it would clearly imply that samples in the present case were not representative.". In Kanshi Nath Vs. State (Supra) even while certain other contentions of the accused were rejected, the contention concerning the samples sent to the two test labs not being representative was accepted and the accused were acquitted. In this judgment after referring to the judgment of Calcutta Municipal Corporation Vs. Pawan Kumar Saraf 1999(1) FAC 1 and Municipal Corporation of Delhi Vs. Bishan Sarup 1972 FAC 273 has observed that, " Therefore, on the facts of the present case, It can be said that the variation is beyond the acceptable range and would clearly imply that the samples were not representative. In view of this finding and in the background of the law which is well settled, no conviction can be sustained". Similarly, It has been held by the Hon'ble Delhi High Court in M/s Raja Ram Seth & Sons & Anr. Vs. Delhi Administration that, "If the variations in the report of PA and CFL is more than 0.3 % which is stated to be permissible limit, it cannot be said that CC No. 29/02 FI Vs. Desh Pal Singh Etc. Page 21 of 25 identical representative samples were sent to both the Public Analyst and CFL and therefore it raises a doubt about the sample of being not homogenized and no conviction is permissible on the basis of said reports and benefit of doubt is liable to be given to the accused." Similar view has been taken by the Hon'ble High Court of Delhi in State (Delhi Administration) Vs. Ram Singh & Ors. 2009 (1) FAC 371. Reliance may also be placed upon State Vs. Suresh Kumar & Anr. 2010 (2) FAC 204.
38. In view of law laid down in the aforesaid authorities, since there are variations in the report of PA and CFL which are beyond the permissible limit of .3 %, it appears that sample was not representative one and, therefore, for this reason benefit of doubt is liable to be given to the accused persons.
39. It is to also be noted that in the present case, admittedly the sample of Pasteurized Toned Milk was lifted by FI Hukam Singh on 08.07.2000 and the present complaint has been filed on 04.02.2002 i.e. after about 19 months from the date of lifting the sample. The second counterpart of the sample was analyzed by the Director, CFL on 01.04.2002 i.e. after about more than 20 months from the date of lifting the sample. The Hon'ble Apex Court in M.C.D. Vs. Ghisa Ram AIR 1967 SC 970 held that the shelf life of the milk is about four months, if it is kept in a room temperature and six months, if it is kept in a refrigerator. The Hon'ble Delhi High Court also held in Gian Chand Vs. The State 1978 (I) FAC 15 (Delhi) that if a preservative is added and the sample is kept at room temperature, the percentage of fat and nonfatty solids contents for purposes of analysis will be retained for about four months, and in case it is kept in a refrigerator after adding the CC No. 29/02 FI Vs. Desh Pal Singh Etc. Page 22 of 25 preservative, the total period which may be available for making analysis, without decomposition, will be six months. PW1 FI Hukum Singh also could not deny in his crossexamination conducted by Ld. Counsel for accused no. 4 that shelf life of the milk for accurate analysis is four months, if stored at room temperature and six months, if stored in refrigerator.
40. In the present case, it is not the case of the prosecution that the sample of Pasteurized Toned Milk was kept in refrigerator and in this regard PW1 FI Hukum Singh who conducted the sample proceedings feigned ignorance and stated in his crossexamination conducted by accused no. 4 that he does not know whether the counterparts were stored by LHA in the office Almirah at room temperature. Even if it is assumed that the sample was kept in a refrigerator, still in view of law laid down in the aforesaid authorities cited supra, it cannot be said that the sample of 'Pasteurized Toned Milk' remained fit for reanalysis by Director, CFL after 20 months from the date of lifting the same.
41. Admittedly, the Pasteurized Toned Milk, sample of which was lifted in the present case is a perishable item and cannot remained fit for analysis after six months in case if it is refrigerated. Therefore, the complainant should have taken immediate steps to file the complaint within 6 months from lifting the sample after receiving the report of Public Analyst in order to enable the accused to exercise their right U/s 13 (2) of PFA Act to get the second counterpart of the sample analyzed by the Director, CFL within time. But, the present complaint has been filed on 04.02.2002 i.e. after about 19 months from lifting the sample on 08.07.2000 even the first counterpart of CC No. 29/02 FI Vs. Desh Pal Singh Etc. Page 23 of 25 the sample was analyzed by the Public Analyst on 25.07.2000.
42. As such, it is apparent that there is huge delay in filing the complaint and due to inordinate delay on the part of the prosecution in filing the complaint, the accused no. 4 could exercise his right U/s 13 (2) of DRC Act only after lapse of 19 months after receiving the intimation of present complaint, which again resulted in delay in analyzing the sample by Director, CFL on 01.04.2002 i.e. after the lapse of about 20 months from lifting the sample. By the time when the accused received the intimation of present complaint and even by the time present complaint was filed, the sample of Pasteurized Toned Milk might have decomposed with the passage of time being perishable in nature and got deteriorated and became unfit for further analysis by the Director, CFL. Therefore, I find substance in the argument of the Ld. Counsel for accused that due to delay in filing the complaint, correct analysis from Director, CFL could not be obtained as by that time the shelf life of the milk had already expired and thus the valuable right of the accused U/s 13 (2) of PFA Act stood frustrated. Hence, the accused persons cannot be convicted on the basis of report of Public Analyst Ex. Pw1/G as also held by the Hon'ble Apex Court in Municipal Corporation of Delhi Vs. Ghisa Ram, AIR 1967 S.C 970.
43. In view of above reasons and discussions, I am of the considered opinion that the prosecution has failed to prove its case against the accused persons beyond reasonable doubt, benefit of which must go in favour of accused persons. Accordingly, benefit of doubt is given to the accused persons and they are acquitted of the charges leveled against them.
CC No. 29/02 FI Vs. Desh Pal Singh Etc. Page 24 of 25File be consigned to Record Room.
Announced in the open Court (Balwant Rai Bansal)
on 16th August, 2013 ACMMII/ PHC/ New Delhi
CC No. 29/02
FI Vs. Desh Pal Singh Etc. Page 25 of 25
CC No. 29/02
DA Vs. Deshpal Singh Etc.
16.08.2013
Present: Sh. Masood Ahmad, Ld. SPP for complainant.
Accused no. 1 with counsel Sh. M.L. Narang.
Accused no. 2 with counsel Sh. M.C. Sanghi.
Accused no. 3 has already been discharged.
Accused no. 4 with counsel Sh. M.K. Gupta.
Vide my separate Judgment of even date dictated and announced in the open court, all the accused persons stand acquitted of the charges leveled against them. Previous Bail Bond / Surety Bond stands cancelled. Surety stands discharged. Endorsement on the documents of the previous surety, if any, be cancelled.
Accused are directed to furnish fresh bail bonds in compliance of Section 437A Cr.P.C. Accused have furnished B/B & S/B in the sum of Rs. 15,000/ each. Same are accepted.
File be consigned to Record Room.
(Balwant Rai Bansal) ACMMII/PHC/ND/16.08.2013 CC No. 29/02 FI Vs. Desh Pal Singh Etc. Page 26 of 25