Delhi District Court
Da vs . Manoj Franklin Page 1 Of 10 on 13 October, 2014
IN THE COURT OF GAURAV RAO
ADDITIONAL CHIEF METROPOLITAN MAGISTRATEII,
PATIALA HOUSE COURTS, NEW DELHI
C.C. No. 1957/09
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
Manoj Franklin S/o Fenial Franklin
M/s New Krishna Dairy,
Gali No. 69, Shanti Place
Molarband Extn. Badarpur, New Delhi110044
R/o IInd Floor, Shanti Place,
Gali No. 69, Molarband Extension,
Badarpur, New Delhi110044 ........ VendorcumProprietor
Serial number of the case : 1957/09
Date of the commission of the offence : 06.06.2009
Date of filing of the complaint : 12.10.2009
Name of the Complainant : Sh. Jeet Ram, Food Inspector
CC No. 1957/09
DA Vs. Manoj Franklin Page 1 of 10
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 : Acquitted
Arguments heard on : 13.10.2014
Judgment announced on : 13.10.2014
Brief facts of the case
1.In brief the case of the prosecution is that on 06.06.2009 at about 07.15 a.m. Food Inspector Jeet Ram and Field Assistant Sh. S. Messy under the supervision and directions of SDM / LHA Ms. Richa visited M/s New Krishna Dairy, Gali No. 69, Shanti Place, Molarband Extn. Badarpur, New Delhi110044 where accused Manoj Franklin who was the vendorcumproprietor 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. 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 because 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 CC No. 1957/09 DA Vs. Manoj Franklin Page 2 of 10 provisions of Section 2 (ia) (a) & (m) of PFA Act 1954 punishable U/s 16 (1) (a) r/w Section 7 of the Act.
3. After the complaint was filed, the accused was summoned vide orders dated 12.10.2009. The accused 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 22.12.2009. The Director, CFL after analysing the sample opined vide its Certificate dated 08.01.2010 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 solids not fat and milk fat were less than the prescribed minimum limit of 8.5% and 3.0% respectively.
4. Notice for violation of provision of Section 2 (ia) (a) & (m) of PFA Act 1954 punishable U/s 16 (1) (a) r/w section 7 of the Act was framed against the accused vide order dated 10.03.2010 to which accused pleaded not guilty and claimed trial.
5. The complainant/prosecution so far has examined two witnesses i.e. the then SDM/LHA Ms. Richa as PW1 and Food Inspector Jeet Ram as PW2. CC No. 1957/09 DA Vs. Manoj Franklin Page 3 of 10 A brief scrutiny of the evidence recorded in the matter is as under:
6. PW1 Ms. Richa deposed that on 06.06.2009 she was posted as SDM/LHA, Kalkaji, South District, Delhi. She deposed that on that day at about 07.15 AM, she alongwith FI Sh. Jeet Ram and FA Sh. S. Messy, under her supervision, visited the premises of M/s New Krishna Dairy, Gali No. 69, Shanti Place, Molarband Extn., Badarpur, New Delhi, where accused Manoj Franklin was found conducting the business of above mentioned dairy shop, having stored various milk & milk products, including Toned Milk for sale for human consumption. She deposed that this Toned Milk was lying in an open container, bearing no label or declaration. She deposed that first of all, they disclosed their identity to the accused and expressed their intention to purchase a sample of Toned Milk from him for analysis to which he agreed. She deposed that before starting the sample proceedings, they requested some public persons to join the sample proceedings as witness but none came forward. She deposed that then on their request FA Sh. S. Messy joined as such in sample proceedings. She deposed that thereafter, FI purchased from the accused 1.5 kg of Toned Milk which was taken from above mentioned container, on payment of Rs. 28.50/ vide vendor's receipt Ex. PW1/A, bearing signature of vendor at point A. She deposed that before taking the sample, the sample commodity was properly mixed with the help of a clean and dry Plunger by rotating it in the container itself in all possible directions. She deposed that thereafter, the required quantity was taken out and was divided into three equal parts by putting it into three clean and dry sample CC No. 1957/09 DA Vs. Manoj Franklin Page 4 of 10 glass bottles. She deposed that 40 drops of Formalin were added in each sample bottle as preservative. She deposed that all the three sample bottles were separately sealed and packed as per PFA Act & Rules. She deposed that LHA slips bearing her signature and Code No. were affixed on all the three counterparts. She deposed that vendor signed on each counterpart in such a manner so as to appear partly on LHA slip and partly on wrapper of the counterparts. She deposed that Notice in Form VI was prepared vide Ex. PW1/B and a copy of this Notice was given to the accused as per his acknowledgment at portion X to X thereon. She deposed that Panchnama was prepared vide Ex. PW1/C. She deposed that all these documents were read over and explained to the accused in Hindi and then he signed the same at point A, witness signed at the same at point B and FI signed the same at point C. She deposed that Raid Report under Rule 9(e) was prepared vide Ex. PW1/D, bearing her signature at point A, signature of witness at point B and signature of FI at point C. She deposed that vendor submitted photocopy of his Driving License, which is mark X bearing his signature at point A. She deposed that two counterpart of the sample were deposited with her on the next working day i.e. 08.06.2009 vide LHA Receipt Ex. PW1/E bearing her signature at point B and signature of FI at point A, under intimation that one counterpart of the same has already been deposited with PA. She deposed that PA Report was received vide Ex. PW1/F, which revealed that the sample was not conforming to the standards and accordingly on her directions, FI Sh. Jeet Ram, conducted the investigations and after conducting the investigation, he put the entire case file before her and she forwarded the same to the then Director PFA Sh. Mohan CC No. 1957/09 DA Vs. Manoj Franklin Page 5 of 10 Lal who granted his consent for prosecution vide Ex. PW1/G, bearing his signature at point A. She deposed that thereafter, on her instructions FI Sh. Jeet Ram filed the complaint before this Court vide Ex. PW1/H and then Intimation letter alongwith copy of PA Report was sent to the accused through registered post, which was not received back undelivered.
7. During her cross examination she stated that Toned Milk was lying in an open container. She stated that approximately 810 litre of Toned Milk was available in the container at that time. She stated that the container was made up of Steel. She stated that the capacity of the container was approximately 2530 litre. She stated that the container was of drum type however, its radius was less and its length was more. She stated that the PFA team had a plunger and the sample commodity was mixed by the FI with the help of this plunger. She stated that the height of the plunger was more than 3 feet. She stated that there was a disc on the lower side of the plunger. She stated that she does not remember as to how many holes were there in the disc of the plunger. She denied the suggestion that they were not having any plunger with them or that the sample commodity was not mixed with the help of any plunger. She stated that the plunger was made up of Steel. She stated that the required quantity of the sample commodity was taken out from the container with the help of a measure and it was transferred in a jug which was provided by the vendor. She stated that thereafter, it was put into sample bottles. She stated that she does not remember as to what was the capacity of the measure and the jug. She stated that the measure and the jug CC No. 1957/09 DA Vs. Manoj Franklin Page 6 of 10 were made clean by water before using the same for sample proceedings and some milk was poured in the jug and the jug was shaken vigorously and then the milk was thrown and then the required quantity of the Toned Milk from the drum was transferred in the jug. She denied the suggestion that the measure and the jug were not made clean at the spot. She stated that 12 persons from nearby area were present at the shop of the accused at the time of sample proceedings. She stated that the FI requested these persons to join the sample proceedings as witness. She stated that she does not remember their names and addresses. She denied the suggestion that FI did not deliberately make any effort to join the public witnesses in sample proceedings. She denied the suggestion that the sample commodity was not properly mixed or that a representative sample was not taken in this case or that there is variation in PA & CFL Reports due to this fact. She stated that the two counterparts were stored by her in office almirah at room temperature, till they were sent to the Court for being sent to CFL.
8. PW2 FI. Jeet Ram has deposed on the same lines as deposed by PW1 in her examination in chief.
9. This so far is the prosecution evidence. Today matter is listed for PE however no PW is present. In my opinion taking into account the report of the Director, CFL no purpose shall be served in further continuation of trial in the present case.
CC No. 1957/09 DA Vs. Manoj Franklin Page 7 of 10
10. 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 08.01.2010 who had reported that the sample of Toned Milk did not conform to the standards as the milk fat and Milk solids not fat were less than the prescribed minimum limit of 3.0% and 8.5% respectively. 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 method 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 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 CC No. 1957/09 DA Vs. Manoj Franklin Page 8 of 10 dismissed accordingly."
11. 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.
12. 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 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.
13. 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 continuation of the trial shall be an exercise in futility with no prospect of a result in favour of prosecution. Accordingly PE is closed and SA is dispensed with. Accused stands acquitted of the charges in the present case.
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14. I order accordingly.
Announced in the open Court (Gaurav Rao)
on 13th October 2014 ACMMII/ New Delhi
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DA Vs. Manoj Franklin Page 10 of 10