Delhi District Court
Fi vs . Hans Raj Page 1 Of 15 on 25 June, 2013
IN THE COURT OF SHRI BALWANT RAI BANSAL
ADDITIONAL CHIEF METROPOLITAN MAGISTRATEII,
PATIALA HOUSE COURTS, NEW DELHI
C.C. No. 1991/09
Food Inspector
Department of PFA
Govt. of NCT of Delhi
A20, Lawrence Road
Indl. Area, Delhi - 35
........ Complainant
Versus
Sh. Hans Raj S/o Sh. Ami Chand
M/s Hans Sweets,
C38, Nehru Road, Adarsh Nagar,
New Delhi - 110033
R/o B14, Shankaracharya Road,
Adarsh Nagar, New Delhi 110033
........ VendorcumProprietor
COMPLAINT U/S 16 OF THE PREVENTION OF FOOD
ADULTERATION ACT, 1954
Serial number of the case : 1991/09
Date of the commission of the offence : 08/09/09
Date of filing of the complaint : 18.11.2009
Name of the Complainant, if any : Shri Gian Chand, Food Inspector
CC No. 1991/09
FI Vs. Hans Raj Page 1 of 15
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 and violation of Section 14A
of PFA Act, punishable U/s 16
(1C) of PFA Act.
Plea of the accused : Pleaded not guilty
Final order : Acquitted
Arguments heard on : 21.06.2013
Judgment announced on : 25.06.2013
J U D G M E N T
1. The present complaint has been filed on 18.11.2009 by the Delhi Administration through FI Sh. Gian Chand against the accused Hans Raj. It is stated in the complaint that on 08.09.2009 at about 10 AM, FI Gian Chand purchased a sample of Cow's Milk, a food article for analysis from Sh. Hans Raj S/o Sh. Ami Chand from the premises of M/s Hans Sweets, C38, Nehru Road, Adarsh Nagar, New Delhi 110033, where the said article was found stored for sale and where accused Hans Raj was found conducting the business of the said food article at the time of sampling. FI Sh. Gian Chand purchased 1500 ml of Cow's Milk, taken from an open drum bearing declaration as Cow's Milk. The sample was taken under the supervision and direction of Shri Pradeep Baijal, SDM/LHA after proper mixing with the help of dry and clean measure by rotating it in all possible directions in the drum itself. Thereafter, the CC No. 1991/09 FI Vs. Hans Raj Page 2 of 15 sample was divided into three equal parts by putting it in three clean and dry bottles and 40 drops of 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 08.09.2009. Panchnama was also prepared at the spot. All these documents prepared by FI Sh. Gian Chand were signed by accused Hans Raj, the vendor and the other witness namely Sh. Manohar Lal, 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. Manohar Lal, FA joined as witness.
2. It is further stated that one counterpart of the sample bearing LHA code No. 61/LHA/25623 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 analyzed the sample and opined that "the sample does not conform to standard because milk solids not fat is less than the prescribed minimum limit of 8.5%".
3. It is further stated that Sh. Hans Raj S/o Ami Chand was found as VendorcumProprietor of M/s Hans Sweets at the time of taking sample and as such he is incharge and responsible for the day to day conduct of the business of the said shop. Thereafter, the entire case file was sent to the CC No. 1991/09 FI Vs. Hans Raj Page 3 of 15 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 and for violation of Section 14A of PFA Act, punishable U/s 16 (1C) of the Act.
4. The accused was summoned vide order dated 18.11.2009. 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 and for violation of Section 14A of PFA Act, punishable U/s 16 (1C) of the Act, was framed against the accused vide order dated 08.03.2010 to which accused pleaded not guilty and claimed trial.
6. Thereafter, prosecution examined three witnesses namely Sh. Pradeep Baijal, the then SDM/LHA as PW1, Sh. Gian Chand, FI as PW2 and Sh. Monohar Lal, FA as PW3 and PE was closed vide order dated 20.08.2011.
7. Statement of accused U/s 313 Cr.P.C. was recorded on 22.12.2012 wherein accused claimed himself to be innocent and opted to lead evidence in his defence. However, accused did not lead any evidence in his defence and DE was closed vide order dated 16.04.2013.
8. I have heard the Ld. Counsel for the parties and perused the CC No. 1991/09 FI Vs. Hans Raj Page 4 of 15 record carefully.
9. Ld. Counsel for accused has argued that the Food Inspector stirred the milk with the help of a milk measure, whereas in order to proper homogenization or sterilization of the milk, the Food Inspector should have mixed the milk with the Plunger, but he has not done so, and, therefore the milk was not properly stirred. He further argued that the milk was not properly stirred is evident from the fact that 'milk fat' of the sample commodity was found on the higher side than the prescribed standard, whereas at the same time the milk solids not fat was found less than the prescribed standard and therefore, accused is entitled to be given benefit of doubt. To fortify this argument, he has relied upon the judgment passed by the Hon'ble Punjab and Haryana High Court in "Lekh Raj Vs. U.T. Chandigarh, Criminal Revision No. 505 of 1986." He has further argued that the 'Gerber' method which has been applied by the Public Analyst to detect the fat percentage in the sample commodity is not a sure test and in this regard he has relied upon the judgment passed by the Hon'ble High Court of Delhi in "Corporation of the City of Nagpur Vs. Neetam Manikrao Kature and Ors..1998 SCC (Cri) 564".
10. Ld. Counsel for accused has further argued that the deficiency in the sample of Cow's Milk was only in respect of 'milk solids not fat' 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 'milk CC No. 1991/09 FI Vs. Hans Raj Page 5 of 15 solids not 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 there is marginal deficiency in the sample in respect of 'milk solids not fat' and it is possible that there may be judgment of error for which accused is liable to be given benefit of doubt. To fortify this argument, he has placed reliance on case laws titled as "Noratan Mal Vs. State of Rajasthan, Criminal Appeal No. 621 of 1988"
and "P.S. Sharma Vs. Madanlal Kasturichandji & Anr. 2002 (2) FAC
224."
11. On the other hand, Ld. SPP for complainant has argued that Gerber method to detect the fat percentage in the sample is a valid test. He further argued that sterilization of the milk in order to homogenize the same can be done with the help of a milk measure or a plunger and it depends on the structure or make of the container in which the milk is kept and in the present case the milk was properly stirred with the help of milk measure. He further 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 solids not 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 and accused is liable to be convicted.
12. All the witnesses examined by the prosecution have deposed more or less as per the averments made in the complaint.
CC No. 1991/09 FI Vs. Hans Raj Page 6 of 1513. PW1 Sh. Pradeep Baijal, the then SDM/LHA has deposed in his examinationinchief that on 08.09.2009, under his direction and supervision, FI Gian Chand and FA Monohar Lal along with other staff visited the premises at M/s Hans Sweets, C38, Nehru Road, Adarsh Nagar, New Delhi, where accused was found conducing the business of the said shop including cow's milk for sale for human consumption. He further deposed that they disclosed their identity and intention for purchasing the sample of cow's milk lying in the open drum bearing declaration as 'cow's milk', for analysis to which accused agreed. He further deposed that at about 10 AM, FI Gian Chand purchased 1500 ml cow's milk taken from the aforesaid drum after proper mixing with the help of a clean and dry measure of 500 ml by rotating it in all possible directions several times and each bottle containing the sample was separately packed, fastened and sealed according to PFA Act and Rules. He further deposed that FI prepared notice Ex. PW 1/B and Panchnama Ex. PW1/C at the spot and a copy of notice was also given to the accused and and all the aforesaid documents were read over and explained to the accused who after understanding the same signed the same. He further deposed that on 08.09.2009 FI deposited with him two counterparts of the sample along with two copies of memo of Form VII in a sealed packet vide receipt Ex. PW1/D with the intimation that one counterpart of the sample has already been deposited with PA for analysis vide receipt Ex. PW1/E and as per PA report is Ex. PW 1/F, sample was found not conforming to the CC No. 1991/09 FI Vs. Hans Raj Page 7 of 15 standards.
14. During his deposition, PW1 has also placed on record consent given by the Director, PFA for initiating the prosecution against the accused as Ex. PW1/G, complaint filed by FI as Ex. PW1/H, intimation letter sent to the accused along with PA report as Ex. PW1/I and photocopy of its postal registration receipt as Ex. PW1/J.
15. PW2 is FI Sh. Gian Chand who purchased the sample and conducted the sample proceedings. He has also deposed on the similar lines as deposed by PW1 in his examinationinchief and has also proved on record letter sent by him to STO, Ward No. 70 as Ex. PW2/A.
16. PW3 Sh. Manohar Lal, FI who had accompanied the Food Inspector and was made a witness at the time of conducting the sample proceedings has also more or less deposed on the similar lines as deposed by PW1 & PW2 in their examinationinchief.
17. PW1 Sh. Pradeep Baijal in his crossexamination denied the suggestion that deficiency in the milk solids not fat upto 0.5% as found by PA was due to improper sampling. He stated that he cannot comment that if the water is added in the milk, milk fat as well as SNF will reduce proportionately.
18. PW2 FI Gian Chand admitted in his crossexamination that milk solids not fat deceases in the milk if water is added in the milk. He further admitted that if the water is added in the milk, milk fat as well as SNF will reduce proportionately. He stated that he is not aware that Garbar CC No. 1991/09 FI Vs. Hans Raj Page 8 of 15 method has been disapproved by ISI and rejected by the Hon'ble Supreme Court. He denied the suggestion that deficiency in the milk solids not fat upto 0.5% as found by PA was due to improper sampling.
19. Similarly, PW3 denied the suggestion in his cross examination that sample failed due to improper sampling procedure. He stated that if the quantity of the milk is huge then it can be mixed with the help of a Plunger and if quantity is less then it can be mixed with measure also. He denied the suggestion that the sample commodity being consisting of 25 liters of milk should have been mixed with the help of plunger.
20. In his statement U/s 313 Cr.P.C., the accused has not disputed the fact that on 08.09.2009 at about 10 AM, he was found conducting the business of Cow's Milk at his premises M/s Hans Sweets, C38, Nehru Road, Adarsh Nagar, New Delhi33 and PFA Team visited his premises and further that the FI Sh. Gian Chand lifted the sample of Cow's Milk from him for analysis. The sample of Cow's Milk was sent to the Public Analyst (PA) for analysis who after analysing the sample vide his report dated 13.10.2009 found the same not conforming to the standard because 'milk solid not fat' was less than the prescribed minimum limit of 8.5%. The report of Public Analyst has been exhibited and proved as Ex. PW1/F on the basis of which present complaint has been launched against the accused.
21. The defence of the accused from the aforesaid cross examination of PWs appears to be that proper method of mixing the milk was not applied by the Food Inspector, which resulted in reducing of 'milk CC No. 1991/09 FI Vs. Hans Raj Page 9 of 15 solids not fat' in the sample commodity. In his statement U/s 313 Cr.P.C also, the accused has contended that sample was not properly homogenized by the Food Inspector before taking the sample. It is further contended by the accused that report of Public Analyst is wrong as Public Analyst has not applied the correct test for the determination of milk fat and no test has been performed for the determination of milk solids not fat.
22. It is evident from the report of Public Analyst Ex. PW1/F that sample of Cow's Milk failed only in respect of 'milk solids not fat' which was found less than the prescribed minimum limit. As per accused, milk was mixed by the Food Inspector with the help of milk measure, whereas same should have been mixed with the help of plunger and, therefore, the milk was not properly stirred which resulted in reducing of 'milk solids not fat' in the sample.
23. Admittedly, at the time of sampling, the accused was found in possession of 25 liters of cow's milk. PW1 Sh. Pradeep Baijal categorically stated in his crossexamination that there was about 25 liters of cow's milk in the drum and the capacity of the drum was about 50 liters. He further stated that height of the drum was about 4 feet. It is also not in dispute that before taking the sample of cow's milk, it was mixed by the Food Inspector with the help of milk measure of 500 ml. If it is so, it was not possible to mix the entire milk lying in the drum of about 4 feet with the help of milk measure of 500 ml upto the depth of the bottom of the drum and thus it cannot be said that it was a proper method of mixing the sample commodity CC No. 1991/09 FI Vs. Hans Raj Page 10 of 15 of Cow's milk or that the milk was properly stirred.
24. In a revision petition titled as Lekh Raj Vs. U.T. Chandigarh (cited supra) relied upon by the Ld. Counsel for accused, a sample of Tonned milk was lifted by the Food Inspector from the petitioner for analysis. The sample of Tonned milk was taken from a Patila containing 10 Kg of milk and was sent to the Public Analyst, who found it to be deficient in milk solids not fat than the minimum prescribed standard, while the fat content was found more than the prescribed standard. In the said case, the Food Inspector stirred the milk with a milk measure and in those circumstance the Hon'ble Punjab and Haryana High Court held that stirring the milk with the milk measure is not sufficient to conclude that the milk was properly stirred unless the milk is stirred with a deep probe or by transferring the milk in the Patila to another vessel and stirring it in the said process. It was further held that stirring of the milk with a milk measure would result in blowing it and separating the fat contents from the milk solids. It was also observed by the Hon'ble High Court of Punjab and Haryana that there is no explanation as to how fat contents will be more than the prescribed standard for tonned milk, while at the same time milk solids not fat would be lesser than the prescribed standard, because a milk vendor is not expected to add fats in the milk contents being costlier than the milk itself and if a milk vendor adds water to milk, it will result in reducing fat contents also, provided the sample is taken after proper stirring and in those circumstance it was held that milk was not taken after properly CC No. 1991/09 FI Vs. Hans Raj Page 11 of 15 stirring it.
25. In the present case also, the 'milk fat' in the sample was found 4.5 % which is more than the prescribed minimum limit of 3.5% , whereas 'milk solids not fat' was found to the tune of 8.05% which is less than the prescribed minimum limit of 8.5%. Had there been any adulteration in the milk by the accused by adding water to it, the 'milk fat' should have also been reduced in the sample, as observed by the Hon'ble Punjab and Haryana High Court in the authority cited supra, which in the present case was found higher than the prescribed standard and it goes to show that milk was not properly stirred before taking the sample.
26. Even otherwise, as per report of the Public Analyst Ex. PW1/F, the only shortfall in the sample of Cow's Milk was in respect of 'milk solids not fat' which was found to be 8.05% as against the minimum prescribed limit of 8.5%. In an appeal filed before the Hon'ble Supreme Court 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 held that it cannot be said that courts below have erred in acquitting the accused giving the benefit of doubt.
CC No. 1991/09 FI Vs. Hans Raj Page 12 of 1527. 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.
28. The facts of the present case are squarely covered under the aforesaid authorities. In the present case also, as per report of Public Analyst (PA), the 'milk solids not fat' of the sample commodity of Cow's milk was found to be 8.05% as against the minimum requirement of 8.5% and the 'milk fat' was found to be 4.5% as against the prescribed minimum limit of 3.5% and if percentage of both 'milk fat' and 'milk solids not fat' are added, the total fats comes to 12.55% which is more than the prescribed limit of 12%. Therefore, in view of law laid down in the authority cited supra, the accused can not be convicted on the basis of shortfall in SNF as total fats are more than the prescribed requirement.
29. Not only this, it is also evident that there is only a marginal deficiency in 'milk solids not fat' which was found 8.05% against the prescribed minimum limit of 8.5% and the difference came to only .45% from the standard quantity. In an appeal titled as Noratan Mal Vs. State of Rajasthan relied upon by the Ld. Counsel for accused, a sample of chilli powder was purchased for analysis and total ash found in the sample was 8.38 % by weight against the prescribed requirement of 8 % by weight and CC No. 1991/09 FI Vs. Hans Raj Page 13 of 15 the Hon'ble Supreme Court of India held that, "The adulteration found in the instant case being marginal, the possibility of there being an error of judgment in analysis."
30. In the present case also, since there is a marginal deficiency of .45% in 'milk solids not fat' in the sample commodity, it is possible that there may be error of judgment in the analysis by the Public Analyst and for this reason also, the accused is liable to be given benefit of doubt.
31. It is also evident from the report of Public Analyst (PA) Ex. PW1/F that 'Gerber' method has been applied by the Public Analyst to detect the milk fat content of the sample. In Corporation of the City of Nagpur Vs. Neetam Manikrao Kature and Others, the Hon'ble Supreme Court 1998 SCC (Cri) 564 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". This view of acquittal of accused by the Hon'ble High Court of Delhi was upheld by the Hon'ble Supreme Court.
32. 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, the report of Public Analyst on the basis of which present CC No. 1991/09 FI Vs. Hans Raj Page 14 of 15 complaint has been launched against the accused cannot be relied upon.
33. 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 the accused is acquitted of the charges leveled against him.
File be consigned to Record Room.
Announced in the open Court (Balwant Rai Bansal)
on 25th June, 2013 ACMMII/ PHC/ New Delhi
CC No. 1991/09
FI Vs. Hans Raj Page 15 of 15
CC No. 1991/09
DA Vs. Hans Raj
25.06.2013
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/. Same is accepted.
File be consigned to Record Room.
(Balwant Rai Bansal) ACMMII/PHC/ND/25.06.2013 CC No. 1991/09 FI Vs. Hans Raj Page 16 of 15