Delhi District Court
Da vs . Raj Kumar Etc. on 12 November, 2014
IN THE COURT OF GAURAV RAO
ADDITIONAL CHIEF METROPOLITAN MAGISTRATEII,
PATIALA HOUSE COURTS, NEW DELHI
DA Vs. Raj Kumar etc.
C.C. No. 1884/09
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
1.J. K. Sharma S/o Sh. Shiv Dutt, (Deputy Manager) M/s Kwality Dairy (India) Ltd, Village Softa, Tehsil Palwal, Distt. Faridabad, Haryana ...........Nominee of Accused no. 05
2. M/s Kwality Dairy (India) Ltd, Village Softa, Tehsil Palwal, Distt. Faridabad Haryana ............Packer Company
3. Mohan Bhai. D. Patel (Site Incharge) M/s Mehsana District Cooperative Milk Producers Union Ltd, Dhudhsagar Dairy, CC No. 1884/09 DA Vs. Raj Kumar etc Page 1 of 14 Mehsana 384002 ..........Nominee of Accused no. 07
4. M/s Mehsana District Cooperative Milk Producers Union Ltd, Dhudhsagar Dairy, Mehsana 384002. ........Manufacturer company Serial number of the case : 1884/09 Date of the commission of the offence : 17.11.2007 Date of filing of the complaint : 18.07.2009 Name of the Complainant : Sh. P.M. Kothekar, Food Inspector 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 : All accused Acquitted Arguments heard on : 12.11.2014 Judgment announced on : 12.11.2014 Brief facts of the case
1. In brief the case of the prosecution is that on 17.11.2007 at about 05.30 p.m. Food Inspector P. M. Kothekar and Field Assistant Sh. Jagdish Prasad under the supervision and directions of SDM / LHA Sh. Gyaneshwar Sharma visited M/s Raj Dairy and Milk Products, Shop No. A169, DDA LIG Flats, Jhilmil Colony, New CC No. 1884/09 DA Vs. Raj Kumar etc Page 2 of 14 Delhi92, where accused Raj Kumar (accused no. 1 as per original complaint and discharged vide orders dated 13.09.2013) who was the VendorCumProprietor was found present conducting the business of sale of various dairy articles including including full cream Milk which was lying in sealed polypacks of 500 Ml each 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 full cream Milk.
2. During the course of investigation it was revealed that the sample commodity was supplied to M/s Raj Dairy and Milk Products of which accused no. 1 (since discharged) was the proprietor by M/s Gujarat Cooperative Milk Marketing Federation Ltd., (accused no. 3 as per original complaint and also discharged vide orders dated 13.09.2013) of which Sunil Kumar Chopra (accused no. 2 as per original complaint and proceedings against whom abated vide orders dated 11.05.2011) was the Dy. Manager cum Nominee and is the Incharge and therefore responsible for the day to day conduct of the business.
3. Investigation further revealed that the sampled food product was packed by accused no. 2 M/s Kwality Dairy (India) Ltd. (accused no. 5 as per original complaint) of which accused no. 1 Sh. J.K. Sharma (accused no. 4 as per original complaint) was the Nominee as per the provisions of PFA Act and Rules and responsible for/Incharge of day to day conduct of the sales Depot of the company. CC No. 1884/09 DA Vs. Raj Kumar etc Page 3 of 14
4. The sample commodity was manufactured by accused no. 4 M/s Mehsana District Cooperative Milk Producers Union Ltd. (accused no. 7 as per original complaint) of which accused no. 3 Mohan Bhai D. Patel (Accused no. 6 as per original complaint) is the Nominee under the provisions of PFA Act and Incharge of and responsible for day to day conduct of the business of the manufacturing unit.
5. 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 standards because milk solids not fat was less than the prescribed minimum limit of 9.0% and accordingly after obtaining the necessary Sanction / Consent under Section 20 of the Act the present complaint was filed for violation of provisions of Section 2 (ia) (a) & (m) of PFA Act 1954 punishable U/s 16 (1) (a) r/w Section 7 of the Act.
6. After the complaint was filed, accused persons were summoned vide orders dated 18.07.2009. Accused no. 4 J.K. Sharma 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 21.08.2009. The Director, CFL after analysing the sample opined vide its Certificate dated 05.09.2009 that " sample CC No. 1884/09 DA Vs. Raj Kumar etc Page 4 of 14 contains milk fat less than 6% and hence does not conform to the standards of Full Cream Milk as per PFA Rules 1955 as per tests performed".
7. Notices 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 all the accused persons vide order dated 08.04.2010 to all the accused persons pleaded not guilty and claimed trial.
8. So far the complainant/prosecution examined only one witness i.e Dr. P. M. Kothekar.
A brief scrutiny of the evidence recorded in the matter is as under:
9. PW1 Dr. P. M. Kothekar deposed that on 17.11.2007 he was posted at office of SDM, SubDivision Vivek Vihar. He deposed that on that day, he along with FA Sh. Jagdish Prasad and SDM/LHA Sh. Gyaneshwar Sharma under the supervision and direction of SDM/LHA visited M/s Raj Dairy and Milk Products, Shop No. A169,DDA LIG Flats, Jhilmil Colony, New Delhi, where accused Raj Kumar was found conducting the business of said dairy having stored food articles for human consumption including sealed polypacks of full cream milk. He deposed that he disclosed his identity and intention for purchasing a sample of full cream milk from the accused/vendor for analysis to which he agreed. He deposed that before sample CC No. 1884/09 DA Vs. Raj Kumar etc Page 5 of 14 proceedings, he tried to join some public witnesses by requesting customers, neighborers and passersby but none agreed then on his request FA Sh. Jagdish Prasad agreed and joined as a witness in sample proceedings. He deposed that he purchased 3 sealed polypacks of 500 ml full cream milk from the accused for analysis bearing identical label declaration on payment of Rs. 36/ vide Vendor's receipt Ex. PW1/A, bearing signature of vendor at point A. He deposed that the polypacks were brought at the room temperature by putting them at the counter for about 1015 minutes. He deposed that thereafter, he cut open the polypacks from the corner with the help of the clean and dry scissor then the contents of the polypacks were poured in a clean and dry jug and then full cream milk was poured and repoured several times with the help of another clean and dry jug. He deposed that after mixing properly the contents ie. Full cream milk was divided then and there into 3 equal parts by putting them into 3 clean and dry glass bottles. He deposed that 40 drops of formalin were added in each bottle with the help of a clean and dry dropper. He deposed that all the 3 bottles were packed, fastened, marked and sealed according to PFA Act and Rules. He deposed that LHA Slips bearing the code number and signatures of LHA were affixed on all the three bottles from top to bottom. He deposed that Vendor's signature were obtained on each counterpart in such a manner that his signatures appeared partly on LHA slip and partly on the wrapper of the bottle. He deposed that Notice in Form VI Ex. PW1/B bearing signature of vendor at point A was prepared and a copy of the same was given to the vendor as per his endorsement at portion A to A on Ex. PW1/B. He deposed that vendor disclosed the source of CC No. 1884/09 DA Vs. Raj Kumar etc Page 6 of 14 purchase of the sample commodity on Ex. PW1/B at portion B to B bearing his signature at point B the he had purchased the sample commodity from GCMMF Ltd which was of same lot. He deposed that accordingly Notice u/s 14A was also prepared at the spot vide Ex. PW1/B1 bearing signature of vendor at point A. He deposed that Panchnama Ex. PW1/C was also prepared at the spot which bears signature of vendor at point A. He deposed that all these documents were read over and explained to the vendor in Hindi and after understanding the same vendor signed at point A, witness signed at point B and he signed the same at point C. He deposed that one counterpart of the sample along with one copy of Memo in Form VII in intact condition in a sealed packet was deposited with PA on 19.11.2007 i.e. next working day vide PA Receipt Ex. PW1/D bearing signature of Authorized Representative at point A and another copy of Form VII in a sealed envelope was separately sent to PA and remaining two counterparts along with two copies of Memo in Form VII in intact condition were deposited in sealed packet with LHA on 19.11.2007 vide LHA Receipt Ex. PW1/E bearing his signature at point A and signature of LHA at point B under the intimation that one counterpart of the same has already been deposited with PA. He deposed that the Notice u/s 14A was sent to M/s GCMMF on 19.11.2007 i.e. next working day through registered post. He deposed that PA Report Ex. PW1/F bearing signature of PA was received and as per the opinion of PA at portion X " the sample was not found conforming to the standard because milk solids not fat was less than the prescribed minimum limit of 9.00%". He deposed that after receipt of PA Report, SDM/LHA directed him to conduct the investigation and he conducted the investigation CC No. 1884/09 DA Vs. Raj Kumar etc Page 7 of 14 in this case. He deposed that he sent a letter Ex. PW1/G to the vendor bearing his signature at point A seeking information from him regarding constitution of M/s Raj Dairy & Milk Products, he received reply from vendor which is Ex. PW1/G1. He deposed that the vendor also sent another letter to him vide Ex. PW1/G1A along with photocopy of Delivery Challan mark X claiming therein that he had purchased the sample commodity through this Delivery Challan. He deposed that he also sent a letter to STO, Ward No. 83, seeking information from him regarding constitution of M/s Raj Dairy & Milk Products vide Ex. PW1/G2 bearing his signature at point A and he received reply from STO/VATO, Ward Nos. 81 & 83 vide Ex. PW1/G3 according to which the said firm was not found registered in that ward. He deposed that he also sent a letter to STO, Ward No. 60, seeking information from him regarding constitution of M/s GCMMF Ltd,, Delhi, MMO (Amul) vide Ex. PW1/H bearing his signature at point A. He deposed that he also sent a letter to M/s GCMMF Ltd., Anand, Gujarat vide Ex. PW1/H1 bearing his signature at point A. He deposed that he also sent a letter to M/s Mehsana District Cooperative Milk Producers Union Ltd., Mehsana vide Ex. PW1/H2 bearing his signature at point A. He deposed that he received reply from GCMMF Ltd., Anand, Gujarat vide Ex. PW1/H3 along with photocopy of Nomination Form VIII whereby Sh. S. K. Chopra Dy. Manager (Sales) was the nominee of GCMMF Ltd, Anand, Gujrat which is mark X1. He deposed that he received another letter from Sh. S. K. Chopra, Deputy Manager (Sales) vide Ex. PW1/H4 along with photocopy of Invoice mark X2, photocopy of ByLaws of GCMMF Ltd which are collectively mark X3. He deposed that Sh. S. K. Chopra informed that the sample CC No. 1884/09 DA Vs. Raj Kumar etc Page 8 of 14 commodity was purchased by him from M/s Mehsana Distt. Cooperative Milk Producers Union Ltd. He deposed that he received a reply from Mehsana Distt. Co operative Milk Producers Union Ltd which is Ex. PW1/I along with photocopy of nomination Form VIII in the name of Sh. Mohanbhai D. Patel which is marked Y and photocopy of Municipal license which is marked Y1. He deposed that he received another reply from Mehsana District Cooperative Milk Producers Union Ltd., which is Ex. PW1/I1 where in, it was informed that Sh. M. D. Patel was the Nominee of above mentioned Cooperative Union. He deposed that he sent a letter to M/s Kwality Dairy (India) Ltd vide Ex. PW1/J. He deposed that he also sent a letter to Sh. Anil Sehgal (Legal Branch) of M/s Kwality Dairy (India) Ltd vide Ex. PW1/J1 and received its reply vide Ex. PW1/J2 along with copy of Nomination in Form VIII, which is mark Y2, which disclosed that Sh. J. K. Sharma was its Nominee. He deposed that he also received photocopy of Extract of Meetings of the Board of Directors of M/s Kwality Dairy (India) Ltd, which is mark Y3 and copy of Renewal of Agreement between Mehsana District Cooperative Milk Producers Union Ltd and Gujarat Cooperative Milk Marketing Federation Ltd., which is mark Y4, copy of Agreement is mark Y5, photocopy of Voter I Card of Sh. Jai Kumar Sharma, which is mark Y6 and photocopies of letters regarding shifting of their office, which are mark Y7, mark Y8 & mark Y9. He deposed that on the date of sample proceedings, Report under Rule 9 (e) was also prepared, which is Ex. PW1/K, bearing signature of SDM/LHA at point A, signature of witness at point B and his signature at point C. He deposed that after conclusion of investigations, it was found that accused Raj Kumar was the Vendorcum Proprietor of CC No. 1884/09 DA Vs. Raj Kumar etc Page 9 of 14 M/s Raj Dairy & Milk Products and the sample commodity was supplied to the vendor by M/s Gujarat Cooperative Milk Marketing Federation Ltd and Sh. Sunil Kumar Chopra was found its Nominee. He deposed that thereafter, the entire case file was sent to SDM/LHA concerned, who forwarded the same to the then Director PFA, Sh. Mohan Lal for obtaining his consent. He deposed that the then Director PFA granted his consent for prosecution vide Ex. PW1/L, bearing his signature at point A. He deposed that thereafter, he filed the complaint before this Hon'ble Court, which is Ex. PW1/M, bearing his signature at point A. He deposed that intimation letters along with copies of PA Reports were sent to the accused through registered post, which were not received back undelivered. He deposed that intimation letter is Ex. PW1/N, bearing signature of concerned LHA at point A and photocopies of Postal Registration Receipts are collectively Mark Y10.
10. During his cross examination he stated that he had shaken the polythene packets before cutting them open to remove the milk contained therein and had mentioned this fact on the notice in Form VI. He stated that he had seized the empty polythene packets which he has brought today. He produced one sealed wrapper bearing sample number 23/1027/315/2007 bearing the signature of accused, witness as well as FI and same was opened. It contained three empty polythene packets of Amul Gold, same is Ex. PX1 and the three polythene packets are collectively Ex. PX2. He admitted that he had not sent the empty polythene packets to the PA along with counterpart of the sample sent for analysis. He stated that he does not CC No. 1884/09 DA Vs. Raj Kumar etc Page 10 of 14 remember if he had read the explanation beneath Rule 20 of the PFA Rules. He stated that he was not aware if according to the said explanation where food is sold in sealed packages the packages have to be taken in a sealed condition and sent for analysis as such however if formalin is to be added, then the packets can be opened and sample can be taken of loose food articles but the empty packets are to be sent to the PA along with the counterpart of the sample. He stated that he had received during investigation a tripartite agreement entered into between Gujarat Cooperative Milk Marketing Federation Ltd., the Quality Dairy Ltd. and the Mehsana District Cooperative Milk Producers Union Ltd. He stated that he must have read the agreement. He stated that he does not recollect if it was a condition of the agreement that the Mehsana District Cooperative Milk Producers Ltd. will supply their own bill to the Quality Dairy ltd. who will pack the same for Mehsana Dairy and transfer the stock as per their instructions. He stated that he has received some papers from the Quality Dairy but he does not remember if they had taken the plea that they were merely the packers of the milk as supplied by Mehsana Milk Union. He admitted that no lot number was printed in the polythene packets which were purchased as sample. He admitted that the packets have not been packed or labeled by the vendor. He stated that he might have made the endorsement as per the documents and the bill received by him. He admitted that complaint was filed by him on 18.07.2009 i.e. after 20 months. He stated that he cannot comment that milk can remain fit for a period of 4 months only even after addition of formalin therein. He stated that he cannot comment that the variations in the report of PA and the certificate of CFL is due to the delayed filing of the case. He CC No. 1884/09 DA Vs. Raj Kumar etc Page 11 of 14 stated that he cannot comment that by delayed filing of the complaint he has deprived the accused to obtain a correct and reliable result of analysis from the CFL.
11. This so far is the prosecution evidence. In my opinion taking into account the report of the Director no purpose shall be served in further continuation of trial in the present case.
12. To establish its case of adulteration i.e. that the sample of full cream milk was not conforming to the standards the prosecution is relying upon the report of Director, CFL dated 05.09.2009 who had reported that the sample of full cream milk did not conform to the standards as the milk fat were less than the prescribed minimum limit of 6.0%. However as per the report of the Director, CFL, he used the Gerber method for the purpose of analyzing the sample of full cream milk so collected by the Food Inspector. It is reflected in his report that he used I.S. 1224 Part I 1977 for the purpose of calculating the percentage of milk fat in the sample of full cream milk so analyzed and thereafter By difference calculated the contents of the milk solids not fat in the sample of full cream 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 food article/ 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:
CC No. 1884/09 DA Vs. Raj Kumar etc Page 12 of 14
".......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 dismissed accordingly."
13. 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.
14. 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 full cream 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 food article/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. CC No. 1884/09 DA Vs. Raj Kumar etc Page 13 of 14
15. Accordingly in view of my above discussion and the law laid down inCorporation of City of Nagpur Vs. Neetam Manikraro Kature & Anr. 1998 SCC (Cri) 564 the continuation of the trial shall be an exercise in futility. Accordingly PE is closed and SA is dispensed with. All the accused persons stand acquitted of the charges in the present case.
16. I order accordingly.
Announced in the open Court (Gaurav Rao)
on 12th November 2014 ACMMII/ New Delhi
CC No. 1884/09
DA Vs. Raj Kumar etc Page 14 of 14