Delhi District Court
Da vs . Chatar Singh Page 1 Of 11 on 15 July, 2014
IN THE COURT OF GAURAV RAO
ADDITIONAL CHIEF METROPOLITAN MAGISTRATEII,
PATIALA HOUSE COURTS, NEW DELHI
C.C. No. 153/11
COMPLAINT U/S 16 OF THE PREVENTION OF FOOD ADULTERATION ACT, 1954
Food Inspector
Department of PFA
Govt. of NCT of Delhi
A20, Lawrence Road
Indl. Area, Delhi - 35
........ Complainant
Versus
1.Chatar Singh s/o Sh. Samay Singh R/o Mohalla Ram Nagar, Gulaoti, Distt. Bulandsahar, UP .....Vendorcumdriver
2. Sushil Kumar Khode, Nominee of M/s VRS Foods Ltd., Old Bus Stand, Gulaoti, Bulandsahar, UP ........ Nominee of manufacturing company
3. M/s VRS Foods Ltd., Old Bus Stand, Gulaoti, Bulandsahar, UP ........Manufacturing company Serial number of the case : 153/11 Date of the commission of the offence : 27.04.2011 CC No. 153/11 DA Vs. Chatar Singh Page 1 of 11 Date of filing of the complaint : 07/07/11 Name of the Complainant : Sh. Ram Pratap Singh, Food Inspector Offence complained of or proved : Section 2 (ia) (a) & (m) of PFA Act 1954, punishable U/s 16(1) (a) r/w section 7 of the PFA Act.
Plea of the accused : Pleaded not guilty Final order : All accused acquitted Arguments heard on : 15/07/14 Judgment announced on : 15/07/14 Brief facts of the case
1. In brief the case of the prosecution is that on 27.04.2011 at about 11.30 a.m. Food Inspector Ram Pratap Singh, Food Inspector Virender Singh and FA J.S. Bisht under the supervision and directions of SDM / LHA Sh. Vipin Garg were present at Bhopura Check post, Wazirabad Road near Nand Nagri Dairy where one tanker bearing no. UP13L3306 was found coming from UP side in Delhi which was carrying mixed milk as mentioned on the said tanker ready for supply and sale to various shopkeepers in Delhi and in compliance of the provisions of the Prevention of Food Adulteration Act, 1954 and the Prevention of Food Adulteration Rules, 1955, the Food Inspector collected / purchased the sample of mixed milk.
2. During the course of investigation it was revealed that sample commodity was manufactured by accused no. 3 i.e. M/s VRS Foods Ltd. of which accused no. 2 Sushil Kumar Khode was the nominee and therefore incharge of and responsible for CC No. 153/11 DA Vs. Chatar Singh Page 2 of 11 day to day conduct of its business.
3. It is further the prosecution's case that the sample was sent to Public Analyst for analysis and as per the report of Public Analyst the sample was found not conforming to the standard of mixed milk as per PFA rules 1955 as per tests performed as the Milk solids not fat was less than the prescribed minimum limit of 8.5% and accordingly after obtaining the necessary Sanction / Consent under Section 20 of the Act the present complaint was filed for violation of provisions of Section 2 (ia)
(a) & (m) of PFA Act 1954 punishable U/s 16 (1) (a) r/w Section 7 of the Act.
4. After the complaint was filed, the accused persons were summoned vide orders dated 07.07.2011. The accused no. 1 after filing his appearance moved an application under Section 13(2) of PFA Act to get analyzed the second counterpart of the sample from Central Food Laboratory and consequent thereto second counterpart of the sample as per the choice of the accused was sent to Director, CFL (Pune) for its analysis vide orders dated 01.08.2011. The Director, CFL after analysing the sample opined vide its Certificate dated 16.08.2011 that "sample does not conform to the standards of Mix Milk as per PFA Rules 1955 as per tests performed". The Director so opined as the milk solids not fat was found at 8.04% against the minimum prescribed standard of 8.5%.
5. Notice for violation of provision of Section 2 (ia) (a) & (m) of PFA Act CC No. 153/11 DA Vs. Chatar Singh Page 3 of 11 1954 punishable U/s 16 (1) (a) r/w section 7 of the Act was framed against the accused persons vide order dated 28.08.2012 to which accused persons pleaded not guilty and claimed trial.
6. In support of its case the complainant/prosecution examined three witnesses i.e. FI Virender Singh as PW1, Sh. Vipin Garg, the then SDM/LHA as PW2 and Sh. Ram Pratap Singh, Food Inspector as PW3 and thereafter PE was closed vide orders dated 12.12.2013.
7. Statement of the accused persons U/s 313 Cr. P.C. were recorded on 15.07.2014 wherein the accused persons claimed themselves to be innocent. A brief scrutiny of the evidence recorded in the matter is as under:
8. PW1 FI Virender Singh deposed that on 27.04.2011 he was posted in Sub DivisionSaraswati Vihar, as Food Inspector and on that day he alongwith FI Shri Ram Pratap Singh, under the supervision of SDM / LHA Shri Vipin Garg were present at Wazirabad Road at Bhopura Check Post, near Nand Nagari, Delhi. He deposed that at about 11:00 PM, they noticed a Tanker No. UP13L3306 coming from UP side towards Delhi, carrying Mixed Milk as mentioned on the said Tanker. He deposed that it was intercepted and accused Chatar Singh was found driving the same and the tanker was found containing Mixed Milk ready for supply and sale to various CC No. 153/11 DA Vs. Chatar Singh Page 4 of 11 shopkeepers. He deposed that first of all, FI Shri Ram Pratap Singh disclosed his identity to the accused / vendor Chatar Singh and expressed his intention to purchase a sample of Mixed Milk from him for analysis to which he agreed. He deposed that before starting the sample proceedings, FI Shri Ram Pratap Singh requested some passersby to join as a witness in sample proceedings, but none came forward and then on his request he joined as a witness in sample proceedings. He deposed that thereafter, FI purchased from the accused / vendor 1500 ml of Mixed Milk, which was taken from above mentioned tanker on payment of Rs. 33/ vide Vendor's Receipt Ex.
PW 1/A, bearing signature and LTI of the vendor at point 'A'. He deposed that before taking the sample, the entire quantity of Mixed Milk available in the tanker was properly homogenized with the help of a clean and dry PLUNGER by rotating it in all possible directions several times and thereafter, the required quantity i.e. 1500 ml of Mixed Milk was taken out from the tanker with the help of a clean and dry stainless steel jug and was equally put into three clean and dry sample glass bottle. He deposed that 40 drops of Formalin were added in each sample bottle with the help of a clean and dry dropper. He deposed that all the three sample bottles were separately packed, fastened and sealed, according to PFA Act and Rules. He deposed that LHA slips of Shri Vipin Garg were affixed on all the three counterparts from top to bottom. He deposed that Vendor signed and put his LTI on each counterpart in such a manner so as to appear partly on the LHA Slip and partly on the wrapper of the counterpart. He deposed that notice in Form VI was prepared vide Ex. PW 1/B and a copy of this Notice was given to the vendor as per his acknowledgment at portion X to X thereon. CC No. 153/11 DA Vs. Chatar Singh Page 5 of 11 He deposed that Panchnama Ex. PW 1/C was also prepared at the spot. He deposed that all these documents were read over and explained to the vendor in Hindi and thereafter, he signed and put his thumb impression at point 'A', he signed at point 'B' and FI Shri Ram Pratap Singh signed the same at point 'C'. He deposed that Raid Report under Rule 9(e) was prepared at the spot vide Ex. PW 1/D, bearing signature of LHA at point A, his signature at point B and signature of FI Shri Ram Pratap Singh at point C. He deposed that vendor furnished photocopy of his Driving License and photocopy of Sale Tax Permit, which are Mark X & Mark X1 respectively. He deposed that the vendor furnished his Statement at the spot vide Ex. PW 1/E, bearing his signature and LTI at point 'A'. He deposed that since the sample proceedings were started at about 11:00 PM on 27.04.2011 and till the time the accused / vendor furnished his Statement, the next day started hence, the date on his statement is mentioned as 28.04.2011.
9. During his cross examination he stated that the milk tanker was coming from UP to Delhi. He stated that there were 4 members in the raiding party. He stated that approx. 12000 litre Milk was there in the milk tanker when the sample was taken. He stated that it was homogenized by the clean and dry PLUNGER. He stated that the PLUNGER was approx. 33.5 feet in height and the diameter was about 1 feet. He stated that there were 6 holes in the PLUNGER. He stated that the PLUNGER was arranged by the vendor. He stated that it was homogenized more than 810 times. He stated that all the documents were prepared on the spot. He stated that it was not CC No. 153/11 DA Vs. Chatar Singh Page 6 of 11 specifically mentioned in the Form VI that how many times milk has been homogenized. He denied the suggestion that the milk was not homogenized properly. He stated that the jug was obtained from the vendor for taking 1500 ml milk. He stated that the jug was clean and dry. He stated that it was not cleaned and dried by the FI because it was already clean and dry. He stated that in his presence the vendor had not cleaned and dried the jug. He stated that the milk which was taken in the jug in 1500 ml quantity was not further homogenized. He stated that he has seen only accused Chatar Singh in the tanker. He stated that in his presence he had not sold the milk to any other person. He stated that FI might have recorded the name and address of the persons who refused to join the proceedings. He denied the suggestion that a helper was also present in the tanker alongwith the accused Chatar Singh. He denied the suggestion that no efforts was made to join the public witnesses in the proceedings. He denied the suggestion that since the sample was not properly taken by the FI therefore, there is variation in the report of PA & Director CFL. He denied the suggestion that the milk was not homogenized in view of the height of the tanker and of the PLUNGER. He denied the suggestion that he was deposing falsely.
10. PW2 the then SDM/LHA Sh. Vipin Garg and PW3 FI Sh. Ram Pratap Singh have deposed on the same lines as deposed by PW1 in his examination in chief. In addition PW2 SDM/LHA deposed that two counterparts of the sample in a sealed packet in intact condition were deposited with him on the next working day i.e. CC No. 153/11 DA Vs. Chatar Singh Page 7 of 11 28.04.2011 vide LHA Receipt Ex. PW 2/A, bearing his signature at point A and signature of FI Ram Pratap Singh at point B, under intimation that one counterpart of the same has already been deposited with PA. He further deposed that PA Report was received vide Ex. PW 2/B, which revealed that the sample was not conforming to the standards and accordingly on his directions, FI Ram Pratap Singh conducted the investigations and after conducting the investigations, he put the entire case file before him and he forwarded the same to the then Director PFA Shri K.S. Singh for obtaining his Consent and the then Director PFA granted his Consent for prosecution vide Ex. PW 2/C, bearing his signature at point A. Thereafter, on his instructions, FI Ram Pratap Singh filed the complaint before this Hon'ble Court vide Ex. PW 2/D, bearing his signature at point A and then Intimation letters alongwith copies of PA Reports were sent to the accused persons through registered post which were not received back undelivered.
11. This so far is the prosecution evidence in the matter.
12. I have heard the arguments advanced at bar by the Ld. defence counsel as also the Ld. SPP for complainant. I have also carefully gone through the evidence recorded in the matter and perused the documents placed on record by the prosecution in this case.
13. At the outset it was argued by Ld. Defence counsel Sh. R.K. Sharma and CC No. 153/11 DA Vs. Chatar Singh Page 8 of 11 Sh. M.K. Gupta that the present case is covered by the judgment passed by the Hon'ble Apex Court in Corporation of City of Nagpur Vs. Neetam Manikraro Kature & Anr. 1998 SCC (Cri) 564 . It was argued that the Director used Gerber method which is not a sure/accurate test and accordingly no reliance can be placed upon the Director's report.
14. To establish its case of adulteration i.e. that the sample of mixed milk was not conforming to the standards the prosecution is relying upon the report of Director, CFL dated 16.08.2011 who had reported that the sample of mixed milk did not conform to the standards as the milk solids not fat were less than the prescribed minimum limit of 8.5%. However as per the report of the Director, CFL, he used the Gerber method for the purpose of analyzing the sample of mixed milk so collected by the Food Inspector. It is reflected in his report that he used I.S. 1224 Part I 1977 for the purpose of calculating the percentage of milk fat in the sample of mixed milk so analyzed and thereafter By difference calculated the contents of the milk solids not fat in the sample of mixed milk. This is Gerber method as has been fairly conceded by Ld. SPP. The said method is not a sure/accurate test for the purpose of analysis of milk so as to give a finding/report regarding the milk fat and milk solids not fat in sample of milk as held by the Hon. Apex Court in Corporation of City of Nagpur Vs. Neetam Manikraro Kature & Anr. 1998 SCC (Cri) 564. The Hon. Apex Court observed as under:
CC No. 153/11 DA Vs. Chatar Singh Page 9 of 11
".......The High Court has indicated that although the Bombay High Court in State of Maharashtra V. Narayan Dewlu Shanbhag held that Gurber's method of analysis of the quality of food substance was not of assured quality and accuracy and such method was not certified by the Indian Standard Institute. The public analyst however followed Gurber's method and on the basis of such report the prosecution case was initiated. In that view of the matter the High Court did not intend to interfere with the order of acquittal. In our view, the High Court has taken a reasonable view and interference by this Court is not warranted. The appeal, therefore, fails and dismissed accordingly."
15. Reliance may also be placed upon State of Maharashtra Vs. Narayan Dewlu Shanbhaju (1979) 3 Cr LR 117 (Bombay), G.K. Upadhayay Vs. Kanubhai Raimalbhai Rabari and another 2009 (1) FAC 499 and Keshubhai Ranabhai Tukadiya Vs. State of Gujarat 2009 (1) FAC 565.
16. In view of the above as the Director used the Gerber method no reliance can be placed upon the report for the purpose of concluding whether the sample of mixed milk so collected was adulterated or not. Though Ld. SPP for the complainant argued that the Gerber method is a prescribed method in DGHS Manual and is a valid and accurate test and in fact it is the most widely used test all over the world for the purpose of analysis of milk to find out the percentage of the milk fat and the same is also certified by Indian Standards Institute from time to time however in view of the above ruling of the Hon. Supreme Court and failure on the part of the Ld. SPP to distinguish the said ruling I find no merits in his contention. CC No. 153/11 DA Vs. Chatar Singh Page 10 of 11
17. Accordingly in view of my above discussion and the law laid down in Corporation of City of Nagpur Vs. Neetam Manikraro Kature & Anr. 1998 SCC (Cri) 564 the accused no. 1 to 3 stand acquitted of the charges in the present case.
18. I order accordingly.
Announced in the open Court (Gaurav Rao)
on 15th July 2014 ACMMII/ New Delhi
CC No. 153/11
DA Vs. Chatar Singh Page 11 of 11