Delhi District Court
Da vs . Gaurav Etc. Page 1 Of 10 on 5 July, 2014
IN THE COURT OF GAURAV RAO
ADDITIONAL CHIEF METROPOLITAN MAGISTRATEII,
PATIALA HOUSE COURTS, NEW DELHI
C.C. No. 1952/09
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.Gaurav s/o Anil Kumar Nagar M/s Gaurav Dairy T86, Chand Bibi Camp, Sarai Kale Khan, Nizamuddin, New Delhi13. .....Vendor
2. Anil Kumar Nagar @ Liloo s/o Sh. Raghuraj M/s Gaurav Dairy T86, Chand Bibi Camp, Sarai Kale Khan, Nizamuddin, New Delhi13.
........ Proprietor
Serial number of the case : 1952/09
CC No. 1952/09
DA Vs. Gaurav etc. Page 1 of 10
Date of the commission of the offence : 04/06/09
Date of filing of the complaint : 24.09.2009
Name of the Complainant : Sh. Virender 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 : Both accused Acquitted
Arguments heard on : 05/07/14
Judgment announced on : 05/07/14
Brief facts of the case
1. In brief the case of the prosecution is that on 04.06.2009 at about 07.00 p.m. Food Inspector Virender Singh and Field Assistant Sh. Shivji Mehto under the supervision and directions of SDM / LHA Sh. Lallan Singh visited M/s Gaurav Dairy, T86, Chand Bibi Camp, Sarai Kale Khan, Nizamuddin, New Delhi13, where accused no. 1 Gaurav who was the vendor was found present conducting the business of sale of various dairy articles including toned milk for sale for human consumption 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 toned milk.
2. During the course of investigation it was revealed that accused no. 2 Anil Kumar was the proprietor of M/s Gaurav Dairy and therefore responsible for and CC No. 1952/09 DA Vs. Gaurav etc. Page 2 of 10 incharge of 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 toned milk as per PFA rules 1955 as per tests performed as the Milk solids not fat were 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 24.09.2009. The accused no. 2 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 15.10.2009. The Director, CFL after analysing the sample opined vide its Certificate dated 04.11.2009 that "sample does not conform to the standards of Toned Milk as per PFA Rules 1955 as per tests performed". The Director so opined as the milk fat was found at 2.5% against the minimum prescribed standard of 3.0%.
5. Notice for violation of provision of Section 2 (ia) (a) & (m) of PFA Act CC No. 1952/09 DA Vs. Gaurav etc. Page 3 of 10 1954 punishable U/s 16 (1) (a) r/w section 7 of the Act was framed against the accused persons vide order dated 17.02.2010 to which accused persons pleaded not guilty and claimed trial.
6. In support of its case the complainant/prosecution examined three witnesses i.e. the then SDM/LHA Sh. Lallan Singh as PW1, Sh. Virender Singh, Food Inspector as PW2 and FA Sh. Shivaji Mehto as PW3 and thereafter PE was closed vide orders dated 24.08.2011.
7. Statement of the accused persons U/s 313 Cr. P.C. were recorded on 21.02.2013 wherein the accused persons claimed themselves to be innocent. A brief scrutiny of the evidence recorded in the matter is as under:
8. PW1 Sh. Lallan Singh, the then SDM/LHA deposed that on 04.06.2009 under his supervision and direction FI Sh. Virender Singh and FA Sh. Shivaji Mehto visited M/s Gaurav Dairy, T86, Chand Bibi Camp, Sarai Kale Khan, Nizamuddin, New Delhi where accused Gaurav was found conducting the business of the said dairy including toned milk, for sale for human consumption. He deposed that they disclosed their identity and intention for purchasing the sample of toned milk lying in the open drum bearing declaration as toned milk for analysis to which accused agreed. He deposed that before taking the sample, FI Virender Singh tried his best to procure CC No. 1952/09 DA Vs. Gaurav etc. Page 4 of 10 some public witnesses by requesting some neighborers, customers and passersby to join the sample proceedings but as none agreed and on his request FA Shivji Mehto agreed and joined as witness. He deposed that at about 07.00 p.m. FI Virender Singh purchased 1500 ml of toned milk after proper mixing the milk with the help of clean and dry measure of 1 litre by rotating it in all possible directions several times i.e. clockwise, anticlockwise, upward and downward, on payment of Rs. 30/ vide vendor's receipt Ex. PW1/A. He deposed that FI Virender Singh divided the sample then and there into three equal parts by putting them in three clean and dry glass bottles. He deposed that 40 drops of formalin were added to each of the sample bottle with the help of clean and dry dropper and was properly shaken for its uniform distribution. He deposed that each bottle containing the sample was then separately packed, fastened and sealed according to PFA Act and Rules. He deposed that LHA slip bearing his code number and signatures were affixed on each counterpart. He deposed that vendor signatures were obtained on the LHA slips and on the wrappers of the bottles. He deposed that notice in form VI Ex. PW1/B was prepared on the spot and a copy of which was given to the vendor bearing his endorsement from portion A to A. He deposed that Panchnama Ex. PW1/C was also prepared at the spot. He deposed that raid report under Rule 9 (e) Ex. PW1/C1 was also prepared at the spot.
He deposed that all the documents Ex. PW1/A to C were prepared on the spot and read over and explained to the vendor who after understanding the same signed at point A, witness singed at point B and FI signed at point C respectively. He deposed that the two counterparts of the sample along with two copies of memo of Form VII in a CC No. 1952/09 DA Vs. Gaurav etc. Page 5 of 10 sealed packed were deposited in intact condition with him on 05.06.2009 vide receipt Ex. PW1/D with the intimation that one counterpart of the sample has already been deposited in intact condition with the PA. He deposed that all the copies of memo of Form VII bore the same seal impression with which the sample in question was sealed. PA receipt is Ex. PW1/E. He deposed that PA report Ex. PW1/F was received according to which the sample does not conform to the standards as mentioned therein at portion X. He deposed that then on completion of the investigation by the FI the complete case file along with all statutory documents were sent through him to the Director (PFA) Sh. Mohan Lal who after going through the case file applied his mind and gave his consent Ex. PW1/G. He deposed that complaint Ex. PW1/H was filed in the court by FI Virender Singh. He deposed that intimation letter Ex. PW1/I along with PA report was sent to accused by registered post through him which was not received back undelivered and postal registration receipt is Ex. PW1/J.
9. During his cross examination he stated that there was about 5 ltrs of toned milk lying in an open drum and the capacity of the drum was about 25 litres. He stated that he does not remember the metal of the drum. He stated that accused no. 2 was not present at the spot that is why his signatures were not obtained on the documents prepared at the spot. He stated that Toned milk was written with black ink in Hindi on the body of the drum. He stated that 1 litre measure was provided by the vendor. He stated that there were 23 measures lying with the vendor, only 1 litre measure was used. He stated that measure was rotated in the drum in all possible CC No. 1952/09 DA Vs. Gaurav etc. Page 6 of 10 directions. He denied the suggestion that FI adopted the wrong procedure by mixing the milk with the help of measure. He denied the suggestion that proper method of mixing the milk is either by using plunger or by dipper. He stated that FI put the milk into the bottles. He stated that bottles were already dry and clean and the same were not made again dry and clean at the spot. He stated that he does not know when the bottles were issued to the FI by the department. He stated that he cannot know tell who made clean the bottles but the same were issued in packed condition by the department and same were new one. He stated that two counterparts were kept by him in refrigerator. He stated that refrigerator was issued to him in the year 2008 but he does not remember its exact date. He denied the suggestion that counterparts were kept by him in his office Almirah. He stated that Director, PFA granted consent to the SDM/LHA to institute or get instituted the complaint through FI. He denied the suggestion that sanction is bad in law. He denied the suggestion that report of the PA and the Director, CFL are highly divergent so either sample was not representative or different samples were sent to different Analysts.
10. PW2 FI Virender Singh and PW3 FA Shivji Mehto deposed on the same lines as deposed by PW1 in his examination in chief.
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 CC No. 1952/09 DA Vs. Gaurav etc. Page 7 of 10 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.D. Goel 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 toned milk was not conforming to the standards the prosecution is relying upon the report of Director, CFL dated 04.11.2009 who had reported that the sample of toned milk did not conform to the standards as the milk fat were less than the prescribed minimum limit of 3.0%. However as per the report of the Director, CFL, he used the Gerber method for the purpose of analyzing the sample of toned 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 toned milk so analyzed and thereafter By difference calculated the contents of the milk solids not fat in the sample of toned 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 CC No. 1952/09 DA Vs. Gaurav etc. Page 8 of 10 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:
".......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 toned 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 CC No. 1952/09 DA Vs. Gaurav etc. Page 9 of 10 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.
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 both accused stand acquitted of the charges in the present case.
18. I order accordingly.
Announced in the open Court (Gaurav Rao)
on 05th July 2014 ACMMII/ New Delhi
CC No. 1952/09
DA Vs. Gaurav etc. Page 10 of 10