Delhi District Court
Additional Sessions Judge-01 : New ... vs Food Inspector on 15 May, 2012
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IN THE COURT OF MS. NEENA BANSAL KRISHNA :
ADDITIONAL SESSIONS JUDGE-01 : NEW DELHI
In re :
CA No. 23/12
Satish Kumar,
S/o Sh. Nain Singh,
M/s Siyana Dairy, P.O. Siyana,
Distt. Bulandshahar, UP. ..... Petitioner
versus
Food Inspector,
Department of PFA,
Government of NCT of Delhi,
A-20, Lawrence Road Indl. Area,
Delhi. ..... Respondent
Date of institution of the appeal : 12.04.2012
Date of reserving judgment/order : 01.05.2012
Date of judgment / order : 15.05.2012
JUDGEMENT :
1. This appeal u/s 374 Code of Criminal Procedure has been preferred against the judgment dated 03.03.2012 and order on sentence dated 19.03.2012 of Shri Raghubir Singh, Ld. ACMM-II, New Delhi, in complaint case no. 181/2000, vide which the appellant has been convicted for offences punishable u/s 16 r/w Section 7 of Prevention of Food Adulteration Act, 1954 (hereinafter referred to as "the Act") and sentenced the appellant to undergo rigorous imprisonment for nine months and to pay a fine of Rs.10,000/-, in default to undergo further simple imprisonment for 15 days.
2. The facts in brief as stated in the complaint, are that the Food Inspector V. P. S. Chaudhary under the CA No. 23/12 Page No. 1 of 10 -2- supervision of Sh. Surender Kumar, the then SDM / LHA had purchased a sample 2 x 500 ml of "Double Toned Milk"
sealed in two polythene packets bearing identical label declaration on 15.06.2000 at about 08.30 a.m. from the accused Ramesh Sharma of M/s Sharma Dairy, 8, Ramdwara Road, New Delhi, where he was found conducting the business of the said food article which was stored there for sale. The polythene packets were opened and contents were poured and re-poured in clean and dry jugs for proper homogenization and thereafter Food Inspector divided the sample into three equal parts by putting it into three separate clean and dry glass bottles. 27 drops of formalin were added in each sample bottle and thereafter they were separately packed, fastened and sealed as per the requirements of the Act. One sample was sent to Public Analyst, who gave his report that the sample did not conform to standards because milk fat was less then the prescribed minimum limit of 1.5%.
3. During the investigations it was found that accused Ramesh Sharma was the vendor-cum-proprietor of M/s Sharma Dairy and was responsible for day to day conduct of the business of the said dairy. In his letter dated 26.09.2000 it was disclosed by him that the sample had been purchased from M/s Siyana Dairy which was a partnership concern having six partners, but the accused Satish Kumar, the Quality Control Manager was the nominee and was as such in-charge and responsible for the day to day business of the said Dairy. The accused Satish Kumar and M/s Siyana Dairy were, thus, added CA No. 23/12 Page No. 2 of 10 -3- as the accused.
4. After obtaining the requisite consent u/s 20 of the Act from Director, PFA, the present complaint was filed in the Court on 06.12.2000.
5. The accused was summoned vide order dated 06.12.2000. Accused Ramesh Sharma exercised the option u/s 13 (2) of the Act. Consequently, the second sample was sent the Director, CFL, Kolkota, who opined in his Certificate that the sample was adulterated because the fat content was less than that specified in PFA standard.
6. Notice u/s 251 Cr.PC for the violation of the Provisions of Section 2 (ia) (c) (d) & (m) of PFA Act, 1954, punishable u/s 16 (ai) r/w Sec. 7 of PFA Act was served upon the accused, to which he pleaded not guilty and claimed trial.
7. The prosecution in support of its case examined three witnesses namely PW1 Sh. Surender Kumar, the then SDM/LHA, though, his statement could not be recorded in complete as he could not be summoned for deferred dates, PW2 Sh. V. P. S. Chaudhary, Food Inspector and PW3 Sh. R. K. Bhaskar, Food Inspector.
8. Statement of the accused was recorded u/s 313 Cr.PC in which he pleaded his innocence. No defence evidence was led.
9. The Ld. MM on the basis of the evidence concluded that accused no. 1 Ramesh Sharma was a vendor, who had purchased the "milk" from accused no. 2 and 3 and was, thus, entitled to the benefit of warrantee and was, therefore, CA No. 23/12 Page No. 3 of 10 -4- acquitted. However, in regard to accused no. 2 and 3 it was held that as per Public Analyst report the sample of "Double Toned Milk" was found to be adulterated as milk fat was found to be 0.5% as against the prescribed standard of 1.5%. It was observed that the report of CFL also found the sample of milk to be having exactly the same standards. It was, thus, concluded that as per the report of Public Analyst as well as Director, CFL, the milk sample was adulterated as it failed to meet the prescribed standards and, therefore, accused no. 2 and 3 were convicted and sentenced.
10. Aggrieved by the said judgment, present appeal has been filed.
11. It is argued on behalf of the appellant that the shelf life of the milk is not more than six months provided preservative is added to the same and the sample is kept in refrigerator. In the present case the sample was not kept in the refrigerator. The sample of milk was likely to get decomposed after a period of eight months when the second sample was sent to Director, CFL. However, the parameters reflected in the Public Analyst report and CFL report are identical, which is difficult to accept. Furthermore, the sampling had not been done properly. It is argued that in fact the sampling had not been done as per the prescribed procedure and it had not been homogenized by using the plunger. It is further argued that the vendor had failed to produce the copy of the bill at the time the sample was taken and the same had been supplied subsequently. It is alleged that the said copy of the bill was CA No. 23/12 Page No. 4 of 10 -5- forged and has been falsely created to implicate the present appellant. Moreover, in the said bill it is nowhere indicated that the "milk" was contained in polythene bags and only quantity is mentioned. It is further argued that the appellant had not supplied the "milk" to the vendor and they had been falsely implicated in this case.
12. Ld. Special PP has argued that the "milk" in polythene bag was in homogenized condition and had also been mixed properly in the jug after being brought to the room temperature. The formalin drops had been added to the sample and the report of the Public Analyst is clearly showing that the "milk fat content" was less than the prescribed limit. This is one case in which the CFL report also indicates the exact same level of adulteration as is indicated in the report of the Public Analyst. It is, therefore, argued that the appellants have been right convicted and the appeal is liable to be dismissed.
13. I have heard the arguments and have perused the record. My observations are as under : -
14. In the present case, the sample of "Double Toned Milk" had been taken on 15.06.2000 and the sample was sent to Public Analyst on 16.06.2000 and after due analysis he had given his report on 21.06.2000. In the said report it was found that the "milk fat content" was 0.5% as against the prescribed standard of 1.5% and the "Double Toned Milk" was, thus, found to be adulterated.
15. The complaint had been filed in the Court on CA No. 23/12 Page No. 5 of 10 -6- 07.12.2000 and the accused were summoned for 17.04.2001. However, the accused had themselves put in their appearances on receiving notice on 03.01.2001 and had on the same day filed an application u/s 13 (2) of the Act for sending the second sample to Director, CFL, Kolkota, for analysis. The second sample was sent to the Director, CFL, vide order dated 19.01.2001. The Director, CFL, had received the sample on 23.01.2001 and had given his report on 22.02.2001, wherein again the "milk fat content" was found to be 0.5% and the "solids not fat" as 9.5%. It is interesting to know that there is a difference of eight months between the report of Public Analyst and Director, CFL, but the adulteration in the two samples is found to be absolutely identical. This becomes significant in the light of the fact that the sample was that of "Double Toned Milk" and its shelf life is not considered to be more than six months.
16. The Supreme Court in the case of "MCD v. Ghisa Ram, AIR 1967 SC 970" had considered the shelf life of milk products. In the said case sample of "Cow Milk" had been taken and the complaint before the Ld. MM had been filed after about a period of seven months. In the said case after relying upon the evidence of the expert, it was noted that the food article like curd starts undergoing changes after a week if kept at a room temperature without a preservative but remains fit for analysis for another 10 days thereafter. However, if the sample is kept in a refrigerator, it will preserve its fats and non- fatty acids contents for the purpose of analysis for a total CA No. 23/12 Page No. 6 of 10 -7- period of four weeks. If a preservative is added and the sample is kept at room temperature, the sample can be analyzed for about four months and in case it is refrigerated the sample will be available for analysis without the decomposition for another six months.
17. Likewise, in the case of "Chanan Lal v. State, 1972 FAC 292 (Delhi)", it was observed that a sample of "Khoya", to which formalin is added, can remain fit for analysis for about one month when kept in the refrigerator. If the same is kept at room temperature it remains fit for about 11 to 15 days. In case no formalin is added to the sample then it starts giving slight putrified smell the following day and become decomposed by the 5th day.
18. From the judgments referred above, it is evident that the sample of milk can be considered fit for analysis upto a maximum of five months that too if the preservative is added and it is kept in refrigerator.
19. Interestingly, in this case, though the samples had been kept at room temperature, there is no changes found in the "milk" samples and also there are no observations if the samples had putrified or decayed. This aspect came up for consideration in the case of "Gian Chand v. State, 1978 (1) FAC 15", wherein a sample of "milk" had been taken and the second sample had been sent to Director, CFL, Kolkota, after eight months. The report had been given by the Director, CFL, that the sample was adulterated. It was observed in the said case that the sample of "milk" to which a preservative had CA No. 23/12 Page No. 7 of 10 -8- been added could not have remained fit for analysis after more than six months, even if it has been kept in a refrigerator. It is difficult to accept that the "milk" had remained in a fit condition for analysis after eight months without being refrigerated. It was, thus, concluded that the only inference which could be drawn from such circumstances was that there was a doubt about the genuineness of the sample which was produced before the Ld. ACMM for being sent to the Director, CFL.
20. Likewise, in the case of "Sheikh Abdul v. State of Maharashtra, 1986 (3) FAC 122", a sample of "milk" had been taken and the difference between sending of the sample to the Public Analyst and to the Director, CFL, was more than six months. In the said circumstances it was again observed that there is normal assumption that the "milk" gets decomposed. If the Department wanted to prove that the "milk" had remained intact even after such a long period, it was for the prosecution to prove that fact by examining the proper experts in that behalf. Since the expert had not been examined to explain how the "milk" sample had not decomposed beyond a period of six months, a doubt has been created about the genuineness of the "milk" sample and the benefit of the same was extended to the accused.
21. In the present case as well there is a difference of about eight months in the two reports i.e. of the Public Analyst and Director, CFL. The PW2 Food Inspector Sh. V. P. S. Chaudhary had deposed that the two polythene bags of "milk", CA No. 23/12 Page No. 8 of 10 -9- which were sealed, were opened after being brought to the room temperature and the contents were poured in a clean and dry steel jug and homogenized by pouring and re-pouring in another jug and thereafter divided into three samples.
22. It is important to note that there is no explanation coming forth as to whether the two polythene bags were stored in refrigerator and why the sample had been brought to the room temperature. Moreover, according to PW2 Sh. V. P. S. Chaudhary, the "milk" had been homogenized by pouring in the jug, but it is a known fact that "milk fat content" in the "milk" has a tendency to settle and there is no evidence to show that the polythene bags had been completely emptied into the jug. The possibility of "milk fat content" having remained stuck to the polythene bags cannot be ruled out. Secondly, the method of homogenization by pouring into two jugs is defective because it is nowhere indicated as to how many times the "milk" was poured from one jug to the other. The method of taking the sample is, therefore, shown to be faulty. It is also pertinent to note in this regard that admittedly in the panchnama Ex.PW1/C, this method of mixing the contents of two packets has not been indicated, though, there is a mention about this in the notice u/s 11 (ia) Ex.PW1/D and in the Form VI Ex.PW1/B.
23. It is also significant to note that PW1 Sh. Surender Kumar, the then SDM/LHA had appeared initially but had failed to appear for the purpose of cross-examination and his testimony cannot be read as such against the accused. In so CA No. 23/12 Page No. 9 of 10
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far as, PW2 Food Inspector Sh. V. P. S. Chaudhary and PW3 Food Inspector Sh. R. K. Bhaskar are concerned, neither of the two witnesses have deposed that the sample of "milk" was sent to the Public Analyst along with the sample seal in a separate packet, which is the mandatory requirement under Rule 17 and 18 of the Act.
24. Thus, to conclude, the prosecution has not been able to show that the sampling of the "milk" had been done properly or that the "milk" had been homogenized in a proper way and the possibility of the "milk fat content" not being according to the prescribed standard, can be attributed to the faulty sampling. Furthermore, no expert had been examined by the prosecution to show as to how the "milk" sample remained intact for examination even after an expiry of eight months, when in fact the general rule is that though preservative is added to "milk" and is refrigerated, its shelf life is not more than six months. The benefit of the same has to be extended to the accused.
25. In view of the above discussion, the appeal is hereby allowed. Conviction is set aside and the appellant is acquitted. Bail-bond and surety bond stand discharged.
26. Trial Court Record be sent back alongwith the copy of this order.
27. Appeal file be consigned to the Record Room. Announced in the open Court on this 15th Day of May,2012.
(Neena Bansal Krishna) ASJ-01/PHC/New Delhi CA No. 23/12 Page No. 10 of 10