Delhi District Court
Udai Veer vs Food Inspector on 24 July, 2012
-1-
IN THE COURT OF MS. NEENA BANSAL KRISHNA :
ADDITIONAL SESSIONS JUDGE-01 : NEW DELHI
In re :
CA No. 55/12
Udai Veer
S/o Shri Ganga Ram
M/s Choudhary Dairy,
N-71, A/541, Magzine Road,
Old Chandrawal, Delhi-54 ..... Petitioner
versus
Food Inspector,
PFA Department,
A-20, Lawrence Road Indl. Area,
Delhi. ..... Respondent
Date of institution of the appeal : 03.07.2012
Date of reserving judgment/order : 13.07.2012
Date of judgment / order : 24.07.2012
JUDGMENT :
1 This appeal u/s 374 Code of Criminal Procedure has been preferred against the judgment dated 29.05.2012 and order on sentence dated 01.06.2012 of Ld. ACMM-II, New Delhi, vide which the appellant has been convicted for offences punishable u/s 16 (1) (a) r/w Section 7 of Prevention of Food Adulteration Act, 1954 (hereinafter referred to as "the Act") and sentenced to undergo simple imprisonment for six months and to pay a fine of Rs.5,000/-, in default to undergo further simple imprisonment for 07 days.
2 The facts in brief as stated in the complaint are that on 19.06.2003 at about 06.15 p.m. Food Inspector Virendra Singh under the supervision of Sh. S. L. Batra, the CA No. 55/12 Page No. 1 of 6 -2- then SDM / LHA had purchased a sample of 1500 ml of "Cow's Milk" from the accused Udai Veer of M/s Chaudhary Dairy, N-71, A/541, Magzine Road, Old Chandrawal, Delhi-54, where he was found conducting the business of the said food article which was stored there for sale. The sample was properly homogenized with the clean plunger and then divided into three equal parts and thereafter Food Inspector divided the sample into three equal parts by putting it into three separate clean and dry glass bottles. 40 drops of formalin were added in each sample bottle and thereafter they were separately packed, fastened and sealed as per the requirements of the Act. One sample was sent to Public Analyst, who gave his report that the sample did not conform to standards because milk fat was less than the prescribed minimum limit of 3.5%.
3 After obtaining the requisite consent u/s 20 of the Act from Director, PFA, the present complaint was filed in the Court on 17.09.2003.
4 The accused was summoned vide order dated 17.09.2003. He moved an application u/s 13 (2) of the Act. Thereafter vide order dated 13.10.2003, second counterpart of the sample was sent to the Director, CFL, Pune for analysis, who gave the opinion that the sample did not conform to the standards of "Cow's Milk" as per PFA rules. 5 Charges for the violation of the Provisions of Section 2 (ia) (a) & (m) of PFA Act, 1954, punishable u/s 16 (1)
(a) r/w Sec. 7 of PFA Act was framed against the accused, to CA No. 55/12 Page No. 2 of 6 -3- which he pleaded not guilty and claimed trial. 6 The prosecution in support of its case examined three witnesses namely PW1 Sh. S. L. Batra, the then SDM/LHA, PW2 Sh. Virender Singh, Food Inspector, and PW3 Sh. S. Mishra, Field Assistant.
7 Statement of the accused was recorded u/s 313 Cr.PC in which he pleaded his innocence. He did not opt to lead any defence evidence.
8 The Ld. ACMM observed that in both the reports it was found that the milk sample was having less "milk fat" and, thus, held the sample to be adulterated and accordingly convicted and sentenced the accused.
9 Aggrieved by the said conviction and sentence, present appeal has been filed.
10 Ld. counsel on behalf of the appellant has argued that no proper procedure for homogenization of the "milk" had been adopted by the Food Inspector. Moreover, the procedure which was adopted for homogenization has also not been mentioned in the panchnama and the other documents, which were prepared on the spot. Moreover, the Public Analyst has used the Gerber Test for ascertaining the "milk fat" content in the "milk" sample, but it has been held by the Supreme Court in the case of "Corporation of Nagpur v. Neetam Manikrao Kature & Ors., 1998 SCC (Cri) 564" that Gerber's Method for 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. Therefore, the CA No. 55/12 Page No. 3 of 6 -4- finding written in the Public Analyst report on the basis of Gerber Test cannot be relied upon. This is reflected in the huge variations in the report of Public Analyst and the Director, CFL. It is, therefore, argued that the prosecution has not been able to prove that the sample was adulterated and the appellant is entitled to be acquitted.
11 Ld. Special PP on behalf of the Department has argued that not only Gerber Method but also other tests had been performed to determine the adulteration in the sample of "cow's milk". The Ld. ACMM has rightly convicted the accused and the present appeal is liable to be dismissed. 12 I have heard the arguments and have perused the record. My observations are as under : -
13 The main argument which has been taken on behalf of the appellant is that proper procedure for homogenization for taking the sample had not been followed by the Food Inspector and that was the reason for the sample to have been found deficit in the "milk fat" content. 14 It is no doubt true that in the present case after his appearance exercised his right u/s 13 (2) and the second sample was sent to the Director, CFL, for analysis, but it has been held in the case of "MCD v. Ghisa Ram, AIR 1967 SC 970" that even if the report of the Director, CFL has been obtained and takes precedent over the report of the Public Analyst, but the report of Public Analyst does not get completely obliterated. It can still be looked into for the purpose of ascertaining if the sampling had been done CA No. 55/12 Page No. 4 of 6 -5- correctly. In the present case, the Public Analyst report shows that the "milk fat" content was found to be 2.3% while the Director, CFL in his report has indicated its contents to be 2.6%.
15 To see the difference in the two reports, it would be fruitful to reproduce the two reports, which are as under : 16 The other variations which have been noted int he Public Analyst and CFL report are as under :
Sr.No. Quality Characteristics PA Report CFL Report 1 Milk Fat % 2.3% 2.6% 2 Milk Solids not fat % 8.64% 8.9% 3 B. R. reading of extracted fat at 40oC 43 41.8
17 From the comparison of these two reports, it is evident that in the "milk fat" there is a difference of 0.3% in the Public Analyst report and the Director, CFL report. Even if the "msnf", though, found to be more than the prescribed limit, there is a difference of 0.3%. The B.R. Reading is also found to be different and there is a difference of 1.2%. These differences clearly reflected that the proper homogenization procedure has not been followed by the Food Inspector. Moreover, it has been observed in the case of "Ghisa Ram (supra)" that if there is a difference of 0.3% in the two reports then the benefit has to be extended to the accused. 18 Not only this, in the case of "Corporation of Nagpur v. Neetam Manikrao Kature & Ors., 1998 SCC (Cri) 564" it has been held that Gerber's Method of analysis of CA No. 55/12 Page No. 5 of 6 -6- the quality of food substance was not of assured quality and accuracy and such method was not certified by the Indian Standard Institute.
19 The Public Analyst has followed Gerber's Method and his report based on such test cannot be held to be reliable. The Manual of Methods of Analysis of Foods issued by Directorate General of Health Services, Ministry of Health and Family Welfare, Government of India, no doubt prescribes Gerber Method for determination of fat in "milk" but the same Manual also prescribes two other methods namely Roese- Gottlieb Method and Werner Schmidt Method for the said determination. Once the Supreme Court has accepted the uncertainty of Gerber Method, no explanation is forthcoming as to how this method is applied instead of two other methods. The report of the Public Analyst, which is based on the said test can, therefore, not be held reliable.
20 In view of the above discussion, the appeal is hereby allowed. Conviction is hereby set aside and the appellant is acquitted. Bail-bond and surety bond stand discharged.
21 Trial Court Record be sent back alongwith the copy of this order.
22 Appeal file be consigned to the Record Room. Announced in the open Court on this 24th Day of July,2012.
(Neena Bansal Krishna) ASJ-01/PHC/New Delhi CA No. 55/12 Page No. 6 of 6