Delhi District Court
Fi vs . Lalit Mohan Page 1 Of 17 on 6 November, 2013
IN THE COURT OF SHRI BALWANT RAI BANSAL
ADDITIONAL CHIEF METROPOLITAN MAGISTRATEII,
PATIALA HOUSE COURTS, NEW DELHI
C.C. No. 227/05
Food Inspector
Department of PFA
Govt. of NCT of Delhi
A20, Lawrence Road
Indl. Area, Delhi - 35
........ Complainant
Versus
Sh. Lalit Mohan S/o Late Sh. Suresh Chand Sharma
M/s Shri Radha Dairy,
Shop No. 4, Sector1,
Pushp Vihar Market, New Delhi - 17
R/o 5356 Laddoo Ghati,
Pahar Ganj, New Delhi 55
........ VendorcumProprietor
COMPLAINT U/S 16 OF THE PREVENTION OF FOOD
ADULTERATION ACT, 1954
Serial number of the case : 227/05
Date of the commission of the offence : 21.06.2005
Date of filing of the complaint : 13.10.2005
Name of the Complainant, if any : Shri Arun Kumar, Food Inspector
CC No. 227/05
FI Vs. Lalit Mohan Page 1 of 17
Offence complained of or proved : Violation of Section 2 (ia) (a) & (m)
of PFA Act 1954; punishable U/s
16(1) (a) r/w Section 7 of PFA Act
Plea of the accused : Pleaded not guilty
Final order : Acquitted
Arguments heard on : Not reserved
Judgment announced on : 06.11.2013
J U D G M E N T
1. The present complaint has been filed on 13.10.2005 by the Delhi Administration through FI Sh. Arun Kumar against the accused Lalit Mohan. It is stated in the complaint that on 21.06.2005 at about 5.00 PM, FI Arun Kumar purchased a sample of 'Toned Milk Curd', a food article for analysis from Lalit Mohan S/o late Sh. Suresh Chand Sharma of M/s Shri Radha Dairy, Shop No. 4, Sector1, Pushp Vihar Market, New Delhi17, where the said article was found stored for sale and where accused Lalit Mohan was found conducting the business of the said food article at the time of sampling. FI Sh. Arun Kumar purchased 600 gms of 'Toned Milk Curd', taken from an open tray bearing the declaration as 'Toned Milk Curd'. The sample was taken under the supervision and direction of Sh. Manish Garg, SDM/LHA after proper mixing the Toned Milk curd with the help of dry and clean mixer and clean and dry jug and thereafter the sample was divided into three equal parts by Food Inspector by putting it in three clean and dry glass bottles and 16 drops of formalin were added to each bottle and thereafter each bottle containing the sample was separately CC No. 227/05 FI Vs. Lalit Mohan Page 2 of 17 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 given to him vide vendor's receipt dated 21.06.2005. Panchnama was also prepared at the spot. All these documents prepared by FI Sh. Arun Kumar were signed by accused Lalit Mohan, the vendor and the other witness namely Sh. S. Massey, FA. It is stated that before taking the sample, efforts were made to get the public witnesses to join the proceedings, but none came forward and as such Sh. S. Massey, FA joined as witness.
2. It is further stated that one counterpart of the sample bearing LHA Code No. 72/LHA/5549 in intact condition was sent to the Public Analyst, Delhi and two counterparts of the sample in intact condition were deposited with LHA. The Public Analyst analyzed the sample and opined that "The sample does not conform to standard because milk fat is less than the prescribed minimum limit of 3.0% when judged on the basis of curd made of Toned Milk".
3. It is stated that during investigation it was revealed that Lalit Mohan S/o late Sh. Suresh Chand Sharma was the VendorcumProprietor of M/s Shri Radha Dairy, Shop No. 4, Sector1, Pushp Vihar Market, New Delhi17 at the time of sampling and as such he is incharge and responsible for the day to day conduct of the business of the said dairy. After conclusion of the investigation, the entire case file was sent to the CC No. 227/05 FI Vs. Lalit Mohan Page 3 of 17 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 Section 7 of the Act.
4. The accused was summoned vide order dated 13.10.2005. The accused appeared and chose not to exercise his right U/s 13 (2) of the PFA Act to get analyzed the second counterpart of the sample from Central Food Laboratory (CFL).
5. Notice U/s 251 Cr.P.C. for violation of Section 2 (ia) (a) & (m) of the PFA Act, punishable U/s 16 (1) (a) r/w section 7 of the PFA Act was framed against the accused vide order dated 07.07.2009 to which accused pleaded not guilty and claimed trial.
6. Thereafter, prosecution examined three witnesses namely Sh. Arun Kumar, FI, who conducted the sample proceedings as PW1, Sh. S. Massey, FA, who was made a witness in the sample proceedings as PW2 and Sh. Manish Garg, the then SDM/LHA under whose supervisions sample proceedings were conducted as PW3 and PE was closed vide order dated 08.07.2010.
7. Statement of accused U/s 313 Cr.P.C. was recorded on 10.02.2011 wherein accused claimed himself to be innocent and opted to lead evidence in his defence.
8. Accused in his defence has examined one witness namely Dr. Rajan Sharma, Sr. Scientist from National Diary Research Institute, CC No. 227/05 FI Vs. Lalit Mohan Page 4 of 17 Karnal, Haryana as DW1 and also examined himself as DW2 (though wrongly mentioned as DW1) and DE was closed vide order dated 30.07.2011.
9. I have heard the Ld. Counsel for the parties and perused the record carefully.
10. Ld. Counsel for accused has argued that the deficiency in the sample of Toned Milk Curd was only in respect of 'milk fat', whereas 'milk solids not fat' was found more than the prescribed limit and if the percentage of 'milk fat' and 'milk solids not fat' are added, it meets the total requirement of fat content of the sample commodity and, therefore, sample cannot be said to have failed only on account of shortfall in respect of 'milk fat'. In this regard, he has relied upon the case law titled as Administrator of the City of Nagpur Vs. Laxman & Anr. Crl. No. 132 of 1986. He further argued that Toned Milk Curd should have been mixed/homogenized by the Food Inspector before lifting the sample as per rule, but in the present case mixing/ homogenization was done by Field Assistant. He further argued that even there is contradiction in the statement of PWs as to who homogenized the 'toned milk curd' before lifting the sample and it suggests that in fact sample was not homogenized before lifting it and, therefore, it cannot be said that a representative sample was lifted in the present case. It is also argued by Ld. Counsel for accused that 'Gerber' method has been applied by the Public Analyst to detect the fat content in the sample commodity, which is not an assured and accurate test in view of CC No. 227/05 FI Vs. Lalit Mohan Page 5 of 17 law laid down by the Hon'ble Apex Court in Corporation of the City of Nagpur Vs. Neetam Manikrao Kature and Others 1998 SCC (Cri) 564 and therefore, on the basis of PA' report, accused cannot be held guilty. Ld. Defence Counsel further argued that intimation letter was received by the accused after 4 months from the date of lifting the sample and by that time the shelf life of the sample commodity had deteriorated being perishable in nature and the sample became unfit for further analysis and thus accused could not get analyzed the second counterpart of the sample from Director, CFL and in this way accused has been deprived of his valuable right U/s 13 (2) of PFA Act and, therefore, accused cannot be convicted on the basis of report of Public Analyst in view of law laid down by Hon'ble Apex Court in M.C.D. Vs. Ghisa Ram AIR 1967 SC 970.
11. On the other hand, Ld. SPP for complainant has argued that sample commodity was required to be conforming to the standard in respect of 'milk fat' and 'milk solids not fat' separately, whereas the sample commodity failed on account of 'milk fat', which was found less than the prescribed requirement and therefore, even if total fat comes more than the prescribed requirement, same is of no avail. He further argued that Gerber method to detect the fat content in the sample commodity is a valid test. He further argued that intimation letter was sent to the accused within time and there is no delay on the part of the prosecution in sending the intimation letter and it cannot be said that accused has been deprived of his valuable right U/s 13 (2) of PFA Act.
CC No. 227/05 FI Vs. Lalit Mohan Page 6 of 1712. All the witnesses examined by the prosecution have deposed more or less as per the averments made in the complaint.
13. PW1 Sh. Arun Kumar, who is the complainant and conducted the sample proceedings in the present case deposed in his examinationin chief that on 21.06.2005, he along with Sh. Manish Garg, SDM/LHA and FA Sh. S. Massey went to M/s Shri Radha Dairy, Shop No. 4, Sector - 1, Pushp Vihar, New Delhi, where accused Lalit Mohan was found conducting the business of said dairy including Toned Milk Curd kept there for sale for human consumption. He further deposed that he disclosed his identity and intention for purchasing the sample of Toned Milk Curd to which accused agreed and he tried to join some public witnesses but none agreed and on his request FA Sh. S. Massey joined as a witness. He further deposed at about 5.00 PM he purchased 600 gms of Toned Milk Curd from an open tray bearing label declaration as Toned Milk Curd after proper mixing the whole curd in the clean and dry jug with the help of clean and dry mixture on payment of Rs. 14.40/ vide receipt Ex. PW1/A. He further deposed that he divided the sample into three equal parts by putting them into three clean and dry glass bottles and 16 drops of formalin were added to each sample bottle and shaken properly for proper mixing and thereafter each bottle containing the sample was separately packed, fastened and sealed according to PFA Act and Rules. He further deposed that notice in Form VI Ex. PW 1/B and Panchnama Ex. PW1/C were also prepared at the spot and a copy of notice was also given to the accused and accused also gave his CC No. 227/05 FI Vs. Lalit Mohan Page 7 of 17 statement vide Ex. PW1/D to the effect that he is the sole owner of the dairy and his shop is not registered with the sales tax and all the aforesaid documents Ex. PW1/A to Ex.PW1/C were read over and explained to the accused who after understanding the same signed the same. He further deposed that one counterpart of the sample was deposited in intact condition with the PA on 22.06.2005 vide receipt Ex. PW1/E and remaining two counterparts of the sample in intact condition were deposited on the same day with the LHA vide receipt Ex. PW1/F. He further deposed that report of PA was received according to which the sample was found not conforming to the standards and during investigation accused was found proprietor of dairy from where the sample was lifted. He further deposed that after completion of investigation by him, the complete case file was sent to the Director (PFA) who accorded requisite consent for launching prosecution against the accused and accordingly he filed the present complaint and thereafter intimation letter along with PA's report was sent to the accused through registered post.
14. During his deposition, PW1 has also placed on record PA's report as Ex. PW1/G, letter sent by him during investigation to Sales Tax Office, Ward No. 96 as Ex. PW1/H, consent given by the Director, PFA for initiating the prosecution against the accused as Ex. PW1/J, complaint filed by him as Ex. PW1/K, intimation letter sent to the accused along with PA report as Ex. PW1/L and photocopy of its postal registration receipt as Ex. PW1/M. CC No. 227/05 FI Vs. Lalit Mohan Page 8 of 17
15. PW2 FI Sh. S. Massey who had accompanied the Food Inspector and was made a witness at the time of conducting the sample proceedings deposed more or less on the similar lines as deposed by PW1 in his examinationinchief regarding the sample proceedings.
16. PW3 Sh. Manish Garg, the then SDM/LHA under whose supervision and direction, sample proceedings were conducted has also corroborated the version of PW1 in his examinationinchief and deposed on the similar lines as deposed by PW1.
17. PW1 in his crossexamination stated that curd was taken with the help of spoon and was put into jug. He further stated the mixer was not electric device but rotated by hands and mixing was done by the vendor as per his direction. He further stated that jug was also provided by the vendor and jug and spoon were already dry and clean and the same were not made again dry and clean at the spot in his presence. He denied the suggestion that mixer/churner was not clean and dry. He further denied the suggestion that deficiency of milk fat is due to bad sampling. He was also suggested that a representative sample was not taken, which he denied. He stated that the entire curd was mixed before taking the sample in the jug.
18. PW2 in his crossexamination stated that there was about 2 and ½ Kg of curd was lying in a tray which was taken into big bowl and then it was mixed properly with the help of Mathani which was made of wood. He denied the suggestion that sample was not drawn properly. Similarly, PW3 also denied the suggestion in his crossexamination that CC No. 227/05 FI Vs. Lalit Mohan Page 9 of 17 sample was not properly taken. He stated that curd was mixed with the help of mathani for two minutes by the FA.
19. In his statement U/s 313 Cr.P.C., the accused has not disputed the fact that on 21.06.2005 at about 5.00 PM, he was found conducting the business of Toned Milk Curd at his dairy M/s Shri Radha Dairy, Shop No. 4, Sector1, Pushp Vihar Market, New Delhi, when PFA Team visited the dairy and FI Sh. Arun Kumar lifted the sample of Toned Milk Curd from him for analysis, which on being analyzed by the Public Analyst was found not conforming to the standards as milk fat was less than the prescribed minimum limit. However, it was contended by the accused that deficiency found in the sample commodity was due to bad sampling as curd was not properly mixed by the FI before lifting the sample nor he was allowed to do so and when he protested to this effect he was not heard.
20. The present complaint has been launched against the accused on the basis of Public Analyst's (PA) report dated 13.07.2005 which has been proved on record as Ex. PW1/G. The Public Analyst vide its report Ex. PW1/G found the sample lifted from the accused not conforming to the standards as 'milk fat' was found less than the minimum prescribed limit of 3.0%. The accused on appearing did not exercise his right U/s 13 (2) of PFA Act to get analyzed the second counterpart of the sample from the Director, CFL. Hence, report of Public Analyst became final and conclusive.
21. As per the report of Public Analyst Ex. PW1/G , the only CC No. 227/05 FI Vs. Lalit Mohan Page 10 of 17 shortfall in the sample of 'Toned Milk curd' was in respect of 'milk fat' which was found to be less that the prescribed limit of 3.0%. Whereas, the 'milk solids not fat' was found 10.05 % i.e. more than the prescribed limit of 8.5%. In an appeal filed before the Hon'ble Supreme Court of India titled as Administrator of the City of Nagpur Vs. Laxman & Anr cited supra, the sample of cow's milk was taken in which the fat percentage was 6% as against 3.5%, which was more than the prescribed for cow's milk. The only shortfall was that SNF which was 7.3%, whereas it ought to have been 8.5%. Further it was noted that the total solids are 13.37 which was again more than the satisfying standard of cow's milk and under those circumstance, the Hon'ble Supreme Court of India held that it cannot be said that courts below have erred in acquitting the accused giving the benefit of doubt.
22. Similarly, in Sakeel Vs. State of Haryana 2008 FAJ (506) (P&H), the analyst reported the sample adulterated as milk solid not fat contents were 7.7% and deficiency was to the tune of 0.8%, while the percentage of fat was 5.4% which was higher than the prescribed standard, it was held that inference could be drawn that either sample was not properly taken or analyzed or cow was not properly fed.
23. The facts of the present case are squarely covered under the aforesaid authorities. In the present case also, as per report of Public Analyst Ex. PW1/G, the 'milk fat' of the sample commodity of 'Toned Milk curd' was found to be 2.32% as against the minimum requirement of 3.0% CC No. 227/05 FI Vs. Lalit Mohan Page 11 of 17 and the 'milk solids not fat' was found to be 10.05% as against the minimum requirement of 8.5% and if percentage of both 'milk fat' and 'milk solids not fat' are added, the total solids comes to 12.37% which is more than the prescribed limit of 11.5%. Therefore, in view of law laid down in the authorities cited supra, if both the fat contents are added, it meets the prescribed requirement and the sample commodity cannot be said to be non conforming to the standards on account of deficiency in 'milk fat' content.
24. It is also evident from the report of Public Analyst that 'Gerber' method has been applied by the Public Analyst to detect the fat content of the sample. In Corporation of the City of Nagpur Vs. Neetam Manikrao Kature and Others 1998 SCC (Cri) 564, the Hon'ble Supreme Court did not approve the Gerber method as a test for detecting the fat content in the milk observing 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."
25. In the present case, apart from the Gerber method, no other method has been applied by the Public Analyst to detect the fat content in the sample and the Gerber method of analysis being not of assured quality and accuracy in view of law laid down by the Hon'ble Apex Court in aforesaid authority, the report of Public Analyst on the basis of which present complaint has been launched against the accused cannot be relied upon.
CC No. 227/05 FI Vs. Lalit Mohan Page 12 of 1726. Accused has also taken a defence in his statement recorded U/s 313 Cr.P.C. that curd was not properly mixed up before lifting the sample which led into deficiency found in the sample commodity. In order to prove this contention, the accused has also examined himself as DW2 and deposed in his examinationinchief that the curd from which the sample was lifted was not mixed by him. He further deposed that FI also did not mix the Curd before lifting the sample. He further deposed that there was total 1 1.25 Kg. Curd and the sample therefrom had been obtained without any sort of mixing thereof with any apparatus. He further deposed that he had not provided any Mathani to the PFA team for the purpose of mixing/homogenization the Curd and the person junior to the FI had put the Curd in the sample bottles.
27. Accused has also examined one Dr. Rajan Sharma, Sr. Scientist, National Dairy Research Institute, Karnal, Haryana who has been working on this post for the last about 14 years and has personally analyzed approximately 500 samples of milk and milk products during his tenure. He deposed that first requirement for withdrawing the sample of curd is that the Curd should be set and the set curd should be divided into equal compartment by cutting it vertically with the help of a sharp Palta and remove the whole one portion out of the portions in a separate vessel. He further deposed that after making a vertical cut for the purpose of obtaining sample the portion so removed for the purpose of sample should be properly mixed.
CC No. 227/05 FI Vs. Lalit Mohan Page 13 of 1728. Though, the PWs stated in their evidence that sample was taken after proper mixing the whole curd taken from the tray in the clean and dry jug with the help of clean and dry mixture, but in the cross examination, PWs are making contradictory statement as to who mixed the curd before lifting the sample. PW1 FI Arun Kumar who conducted the sample proceedings stated in his crossexamination that mixing was done by vendor as per his direction. Whereas, PW3 Sh. Manish Garg, the then SDM/LHA stated in his crossexamination that curd was mixed with the help of mathani for two minutes by the FA. As such, PWs themselves are not sure that as to who mixed the curd, whether the same was mixed by vendor or the same was mixed by the FA. In the given circumstances, where accused has raised a specific plea that neither the Food Inspector mixed the curd nor he was allowed to do so and the PWs are making contradictory statement to each other as to who mixed the curd before lifting the sample, it leads credence to the contention of the accused that curd was not mixed before lifting the sample. The complainant was required to lead positive evidence to the effect that curd was properly mixed before lifting the sample. However, no positive evidence has been led by the prosecution to this effect and all the witnesses examined by the prosecution are the departmental witness who are making contradictory statement in this regard as stated above. Rather, the case of the prosecution that the whole curd was properly mixed before lifting the sample became doubtful on account of contradictions in the statement of PWs in this regard CC No. 227/05 FI Vs. Lalit Mohan Page 14 of 17 and it cannot be said that a representative sample was lifted in the present case, benefit of which is liable to be given to the accused.
29. It is also to be noted that in the present case admittedly the sample of 'Toned Milk curd' was lifted from accused on 21.06.2005 which was sent to the Public Analyst for analysis who after analysing the sample vide his report dated 13.07.2005 found the sample not conforming to the standards. On the basis of Public Analyst's report Ex. PW1/G, the present complaint has been launched against the accused on 13.10.2005 and intimation of present complaint along with PA's report was sent to the accused on 21.10.2005 vide registration postal receipt Ex. PW1/M. As such, it is evident that accused received the intimation letter after 21.10.2005 i.e. after about 4 months from the date of lifting the sample.
30. The Hon'ble Apex Court in M.C.D. Vs. Ghisa Ram AIR 1967 SC 970 observed that if a preservative is added in a milk product and the sample is kept at room temperature, the percentage of fat and nonfatty solids contents for purposes of analysis will be retained for about four months, and in case it is kept in a refrigerator after adding the preservative, the total period which may be available for making analysis, without decomposition, will be six months.
31. In the present case, sample of 'Toned milk curd' was lifted which is admittedly a milk product and perishable in nature. It is nowhere case of the prosecution that the sample of 'Toned milk curd' was kept in refrigerator. Therefore, the complainant should have taken immediate steps CC No. 227/05 FI Vs. Lalit Mohan Page 15 of 17 to file the complaint after receiving the report of Public Analyst and to intimate the accused well in time in order to enable him to exercise his right U/s 13 (2) of PFA Act to get the second counterpart of the sample analyzed by the Director, CFL. But, the intimation letter was sent to the accused on 21.10.2005 i.e. after about 4 months from lifting the sample on 21.06.2005. By the time when the accused received the intimation of present complaint, the sample of 'Toned Milk curd' must have decomposed with the passage of time being perishable in nature and got deteriorated and became unfit for further analysis by the Director, CFL. Therefore, it is evident that due to delay in sending the intimation letter on the part of the prosecution, the accused was deprived of the opportunity of exercising his right U/s 13 (2) of PFA Act to have sample examined by the Director, Central Food Laboratory and hence on the basis of report of Public Analyst, the accused cannot be held guilty in view of law laid down by the Hon'ble Supreme Court of India in Municipal Corporation of Delhi Vs. Ghisa Ram (cited supra) wherein it was held that, "When a valuable right is conferred by Section 13(2) of the Act on the vendor to have the sample given to him analyzed by the Director of the Central Food Laboratory, it is to be expected that the prosecution will proceed in such a manner that right will not be denied to him. The right is a valuable one, because the certificate of the Director supersedes the report of the Public Analyst and is treated as conclusive evidence of its contents. Obviously, the right has been given to the vendor in order that, for his satisfaction and proper defence, he should CC No. 227/05 FI Vs. Lalit Mohan Page 16 of 17 be able to have the sample kept in his charge analyzed by a greater expert whose certificate is to be accepted by court as conclusive evidence. In a case where there is a denial of this right on account of the deliberate conduct of the prosecution, we think that the vendor, in his trial, is so seriously prejudiced that it would not be proper to uphold his conviction on the basis of the report of the Public Analyst, even though that report continues to be evidence in the case of the facts contained therein."
32. In view of above reasons and discussions, I am of the considered opinion that the prosecution has failed to prove its case against the accused beyond reasonable doubt, benefit of which must go in favour of accused. Accordingly, benefit of doubt is given to the accused and he is acquitted of the charges leveled against him.
File be consigned to Record Room.
Announced in the open Court (Balwant Rai Bansal)
on 6th November, 2013 ACMMII/ PHC/ New Delhi
CC No. 227/05
FI Vs. Lalit Mohan Page 17 of 17
CC No. 227/05
DA Vs. Lalit Mohan
06.11.2013
Present: Sh. Masood Ahmad, Ld. SPP for complainant.
Accused with counsel Sh. M.L. Narang.
Further arguments heard. Put at 4.00 PM for orders.
(Balwant Rai Bansal)
ACMMII/PHC/ND/06.11.2013
At 4.00 PM
Present: As above
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. He has furnished the B/B & S/B in the sum of Rs. 15,000/ each. Same is accepted.
File be consigned to Record Room.
(Balwant Rai Bansal) ACMMII/PHC/ND/06.11.2013 CC No. 227/05 FI Vs. Lalit Mohan Page 18 of 17