Delhi District Court
Fi vs . Joginder Kumar on 20 April, 2013
IN THE COURT OF SHRI BALWANT RAI BANSAL
ADDITIONAL CHIEF METROPOLITAN MAGISTRATEII,
PATIALA HOUSE COURTS, NEW DELHI
C.C. No. 236/05
Food Inspector
Department of PFA
Govt. of NCT of Delhi
A20, Lawrence Road
Indl. Area, Delhi - 35
................ Complainant
Versus
Sh. Joginder Kumar
S/o Sh. Hari Chand Sachdeva
M/s Sachdeva Dairy,
7085, Beriwala Bagh Azad Market,
Delhi06.
........ VendorcumProprietor
COMPLAINT U/S 16 OF THE PREVENTION OF FOOD
ADULTERATION ACT, 1954
Serial number of the case : 236/05
Date of the commission of the offence : 12.07.2005
Date of filing of the complaint : 18.10.2005
CC No. 236/05
FI Vs. Joginder Kumar
Name of the Complainant, if any : Shri N.N. Sharma, 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 S. 7 of PFA Act
1954.
Plea of the accused : Pleaded not guilty
Final order : Acquitted.
Arguments heard on : 20.04.2013
Judgment announced on : 20.04.2013
J U D G M E N T
1. The present complaint has been filed on 18.10.2005 by the Delhi Administration through FI Sh. N.N. Sharma against the accused Sh. Joginder Kumar. It is stated in the complaint that on 12.07.2005 at about 5:00 PM, FI Sh. N.N. Sharma purchased a sample of Cow's Milk, a food article for analysis from Sh. Joginder Kumar S/o Shri Hari Chand Sachdeva of M/s Sachdeva Dairy, 7085, Beriwala Bagh, Azad Market, Delhi06 who was found conducting the business of the said food article at the said premises. It is further stated in the complaint that FI Sh. N.N. Sharma purchased 1500 ml of Cow's Milk, taken from an open drum, bearing declaration as "Cow's Milk". The sample was taken after proper CC No. 236/05 FI Vs. Joginder Kumar homogenization with the help of a clean and dry plunger by rotating it in all possible directions under the supervision and direction of Shri Dharam Pal, SDM/LHA. Thereafter, the sample was divided into three equal parts by putting it in three clean and dry glass bottles and 40 drops of liquid 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 paid to the accused vide Vendor's Receipt dated 12.07.2005. Panchnama was also prepared at the spot. All these documents prepared by FI Sh. N.N. Sharma were signed by accused Sh. Joginder Kumar, the vendor and the other witness namely Sh. J.P. Bhardwaj, FA. It is stated that before taking the sample, efforts were made to get the public witnesses to join the sample proceedings, but none came forward and as such Sh. J.P. Bhardwaj, FA joined as witness.
2. It is further stated that one counterpart of the sample bearing LHA code No. 43/LHA/11964 in intact condition was sent to the Public Analyst, Delhi and two counterparts of the sample in intact conditions were deposited with LHA. The Public Analyst analysed the sample and opined that "the sample does not conform to standards because milk solids not CC No. 236/05 FI Vs. Joginder Kumar fat is less than the prescribed minimum limit of 8.5%".
3. It is further stated in the complaint that accused Joginder Kumar, S/o Sh. Hari Chand Sachdeva was the VendorcumProprietor of M/s Sachdeva Dairy and he being the incharge of the said dairy shop was responsible for the day to day conduct of the business of the said diary shop. Thereafter, 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 for violation of provisions of Section 2 (ia) (a) & (m) of the PFA Act, 1954 which is punishable U/s 16 (1) (a) r/w S. 7 of the Act.
4. The accused was summoned vide order dated 18.10.2005. The accused appeared and moved an application U/s 13 (2) of the Act 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, Pune for analysis. Director, CFL on analysing the second counterpart of the sample in question opined vide his Certificate dated 03.12.2005 that " the sample bearing No. 43/LHA/11964 does not conform to the standards of Cow Milk as per PFA Rules 1955".
5. In pre charge evidence, the prosecution examined one witness CC No. 236/05 FI Vs. Joginder Kumar namely Shri N.N. Sharma, Food Inspector as PW1 and pre charge evidence was closed vide order dated 05.05.2009.
6. Thereafter, Charge for the violation of provisions of Section 2(ia) (a) & (m) of PFA Act, punishable U/s 16 (1) (a) r/w S. 7 of PFA Act 1954 was framed upon the accused vide order dated 25.08.2009 to which the accused pleaded not guilty and claimed trial.
7. Thereafter, the prosecution examined three witnesses including Sh. N.N. Sharma, Food Inspector as PW1, Shri Dharam Pal, the then SDM / LHA as PW2 and Shri J.P. Bhardwaj, Field Assistant as PW3 and the PE was closed vide order dated 18.11.2011.
8. Statement of accused U/s 313 Cr.P.C. was recorded on 03.02.2012 wherein accused claimed himself to be innocent and opted for to lead evidence in his defence. However, accused did not lead any defence evidence and DE was closed vide order dated 13.07.2012.
9. I have heard the Ld. Counsel for the parties and perused the record carefully.
10. From the perusal of the record, it is evident that complaint has been filed against the accused on the basis of PA's report dated 27.07.2005. The report of PA has been exhibited and proved as Ex. PW1/G and same reveals that sample does not conform to standard because 'milk solids not CC No. 236/05 FI Vs. Joginder Kumar fate' is less than the prescribed minimum limit of 8.5%. The accused exercised his right u/s 13 (2) of the PFA Act and consequently second counterpart of the sample selected by the accused was sent to the Central Food Laboratory (CFL), Pune for analyzing the sample and the report thereof in the form of Certificate dated 03.12.2005 was received. Perusal of same shows that sample commodity failed on the ground that the 'milk solids not fat' was found to be 7.54% against the minimum prescribed requirement of 8.5%.
11. The Ld. Counsel for the accused has argued that the sample was not properly homogenized before taking the sample and therefore, there are variations in both the reports of experts. He has further argued that the 'Gerber' method which has been applied by the Public Analyst to analyze the sample commodity is not a sure test. He has placed reliance on various case law titled as Kanshi Nath Vs. State 2005(2) FAC 219, M/s Raja Ram Seth & Sons & Anr. Vs. Delhi Administration, 2012 (2) FAC 523 and Corporation of the City of Nagpur Vs. Neetam Manikrao Kature and Others.
12. On the other hand, the Ld. SPP for complainant has argued that as per report of Director, CFL, the milk solids not fat was less than the prescribed minimum standards and the report of Director, CFL being CC No. 236/05 FI Vs. Joginder Kumar conclusive and supersedes the report of Public Analyst, therefore the accused cannot be given benefit of variations in the reports of PA and CFL. He has further argued that Gerber method to detect the fat percentage in the sample is a valid test.
13. All the three witnesses examined by the prosecution have deposed more or less as per the averments made in the complaint and substantiated the averments.
14. PW1 Sh. N.N. Sharma who is the complaint in the present case has deposed in his examinationinchief that on 12.07.2005, he alongwith FA Shri J.P. Bhardwaj, under the supervision and directions of SDM / LHA Shri Dharam Pal visited the premises of M/s Sachdeva Dairy, 7085, Beriwala Bagh, Azad Market, Delhi06, where accused was found conducting the business of the said dairy shop. He has further deposed that he purchased 1500 ml of Cow's Milk, taken from an open drum, having label declaration as Cow's Milk, on payment of Rs. 24/ vide vendor's receipt Ex. PW1/A. He has further deposed that sample was taken after proper homogenization the Cow's Milk with the help of a clean and dry plunger by rotating it in all possible directions several times and then he divided the same into three equal parts by putting them in three clean and dry glass bottles. He further deposed that notice was prepared at the spot CC No. 236/05 FI Vs. Joginder Kumar and same was given to accused which is Ex. PW1/B and panchnama was also prepared at the spot which is Ex. PW1/C. He further deposed that all the documents Ex. PW1/A to Ex. PW1/C prepared on the spot were read over and explained to the accused who after understanding the same signed the same. He has also deposed that the accused had furnished his statement Ex PW 1/D disclosing himself to be the sole proprietor of the dairy shop in question. He has also deposed that two counterparts of the sample in a sealed packet were deposited in intact condition with LHA on 13.07.2005 vide receipt Ex. PW1/F and one counterpart of the sample has already been deposited in intact condition with PA vide PA receipt Ex. PW1/E and PA report is Ex. PW1/G according to which the sample does not conform to the standards as the milk solids not fat was less than the prescribed minimum limit of 8.5%.
15. PW2 Sh. Dharam Pal, SDM/LHA under whom supervision the sample proceedings were done has corroborated the version of PW1 in his examinationinchief.
16. PW3 Sh. J.P. Bhardwaj, Field Assistant who was made a witness at the time of conducting the sample proceedings by PW1 FI Sh. N.N. Sharma has also deposed on the same lines as deposed by PW1 & PW2 in their examinationinchief.
CC No. 236/05 FI Vs. Joginder Kumar
17. PW 1 in his pre charge crossexamination could not comment that if the water is added in cow's milk, fat as well as SNF will be reduced proportionately. He further could not comment that if fat is extracted from the cow's milk, milk fat will be reduced and milk solids not fat will be increased. He affirmed the suggestion that as per report of the PA, the SNF was detected by subtracting milk fat from total solids. He has denied the suggestion that the bulk of the milk was not made representative before lifting the sample.
18. PW1 in his crossexamination could not comment that if two counterparts of a representative sample are analyzed by two experts then their analytical results would be similar and identical. He further could not comment that if water is added in a sample of milk then the milk fat & milk solids not fat, both would reduce proportionately or that the total solids would also reduce. He has denied the suggestion that milk was not properly homogenized with the help of plunger.
19. PW2 in his crossexamination could not comment that if the representative sample is analyzed by two analysts, the analytical result should be identical. He could not affirm or deny that there should not be more than + 0.2% variation in two reports.
20. In the statement U/s 313 Cr.P.C, the accused has admitted that CC No. 236/05 FI Vs. Joginder Kumar on 12.07.2005 at about 5:00 PM, FI Shri N.N. Sharma alongwith FA Shri J.P. Bhardwaj, under the supervision of SDM / LHA Shri Dharam Pal had visited in his dairy M/s Sachdeva Dairy, 7085, Beriwala Bagh, Azad Market, Delhi06 where he was found present conducting the business and the sample of Cow's Milk was lifted. He has taken a defence that the FI did not homogenize the sample commodity properly hence, the sample failed. He has also taken a defence that there was no plunger with the FI.
21. From the aforesaid crossexamination of PWs and statement of accused, the defence of the accused appears to be that sample taken was not a representative one as the sample commodity was not properly homogenized by the FI and, therefore there is variation in the report of two Analysts and further that the gerber method applied by the PA is not a sure test.
22. As per report of Public Analyst (PA) Ex. PW1/G, the 'milk solids not fat' of the sample has been shown to be 6.06% as against the minimum prescribed requirement of 8.5%, while in the report of Director CFL, the 'milk solids not fat' has been shown to be 7.54% against the minimum prescribed requirement of 8.5% and as such there is variation upto more than 1.48% which is higher than 0.3%, which is said to be the permissible limit of variation. The variations in the reports of both the CC No. 236/05 FI Vs. Joginder Kumar Analysts appears to be on higher side and it goes to show that the sample was not properly homogenized and hence it cannot be said to be representative sample. 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 in M/s Raja Ram Seth & Sons & Anr. Vs. Delhi Administration, 2012 (2) FAC 523 it has been held 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 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." CC No. 236/05 FI Vs. Joginder Kumar
23. So far as the contention of the accused that the Gerber method is not a sure test, is concerned, in Corporation of the City of Nagpur Vs. Neetam Manikrao Kature and Others after relying upon a case law titled as State of Maharashtra Vs. Narayan Dewlu Shanbhag has held that, "
Gurber's method of analysis of the quality of food substance was not of assured quality and accuracy and as 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.".
24. In view of aforesaid discussion and observations, I am of the considered view that the accused is liable to be acquitted. Accordingly, the accused is acquitted from the charges leveled against him.
File be consigned to Record Room.
Announced in the open Court (Balwant Rai Bansal)
on 20th April, 2013 ACMMII/ PHC/ New Delhi
CC No. 236/05
FI Vs. Joginder Kumar
CC No. 236/05
DA Vs. Joginder Kumar
20.04.2013
Present: Sh. Masood Ahmad, Ld. SPP for complainant.
Accused with the counsel Sh. M.L. Narang.
Final arguments heard.
Put up for order at 3:00 PM.
At 3:30 PM.
Present: Sh. Masood Ahmad, Ld. SPP for complainant.
Accused with the counsel Sh. M.L. Narang.
Vide my separate Judgment of even date dictated and announced in the open court, accused stands acquitted of the charges leveled against him. Previous Bail Bond / Surety Bond stands cancelled. Surety stands discharged. Endorsement on the documents of the previous surety, if any, be cancelled.
Accused is directed to furnish fresh bail bonds in compliance of Section 437A Cr.P.C. Accused has furnished B/B & S/B in the sum of Rs. 15,000/. The same is accepted.
File be consigned to Record Room.
(Balwant Rai Bansal) ACMMII/PHC/ND/20.04.2013 CC No. 236/05 FI Vs. Joginder Kumar