Delhi District Court
Fi vs . Saleem Etc. Page 1 Of 19 on 25 April, 2013
IN THE COURT OF SHRI BALWANT RAI BANSAL
ADDITIONAL CHIEF METROPOLITAN MAGISTRATEII,
PATIALA HOUSE COURTS, NEW DELHI
C.C. No. 12/2001
Food Inspector
Department of PFA
Govt. of NCT of Delhi
........ Complainant
Versus
1. Sh. Salim S/o Sh. Anwar
Driver, Van No. DL1G/B1683
R/o Village Akbarpur, Bulandshahar (UP)
........ Vendor
2. M/s Ramlal Ji Sewa Samiti (Discharged vide order
Shikarpur Road, Bulandshahar 203001 (UP) dated 10.02.2004)
........ Supplier cum Manufacturer
3. Sh. Pushpender Singh
S/o Sh. Dharmender Singh
764, Shastri Nagar, Bulandshahar (UP)
........Nominee of accused no. 2
COMPLAINT U/S 16 OF THE PREVENTION OF FOOD
ADULTERATION ACT, 1954
CC No. 12/2001
FI Vs. Saleem Etc. Page 1 of 19
Serial number of the case : 12/2001
Date of the commission of the offence : 09.07.2000
Date of filing of the complaint : 30.01.2001
Name of the Complainant, if any : Shri B.P. Saroha, Food Inspector
Offence complained of or proved : S. 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 : 08.04.2013
Judgment announced on : 25.04.2013
J U D G M E N T
1. The present complaint has been filed on 30.01.2001 by the Delhi Administration through FI Sh. B.P. Saroha against the accused persons. It is stated in the complaint that on 09.07.2001 at about 1.00 AM, FI Sh. B.P. Saroha purchased a sample of Pasteurized Full Cream Milk , a food article for analysis from accused Salim S/o Sh. Anwar, Driver of Van No. DL1G B1683 at Gazipur, Delhi. The sample consisted of 1 litre poly pack of pasteurized Full Cream Milk (ready for sale) having label declaration. The sample was taken under the supervision/direction of Dr. P.S. Batra, SDM/LHA after cutting the poly pack from side and poured the contents in a clean and dry steel jug and mixed properly by clean and dry CC No. 12/2001 FI Vs. Saleem Etc. Page 2 of 19 measure. It is stated that before putting the contents in jug, the poly pack was properly shaken and allowed to come to room temperature. Thereafter, the sample was divided into three equal parts by putting it in three clean and dry bottles and 20 drops of formalin were added in each of the three bottles 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 was given to accused and price of sample was also paid to the accused. Panchnama was also prepared at the spot. All these documents prepared by FI Sh. B.P. Saroha were signed by accused Salim and the other witness namely Sh. N.N. Sharma, FI. It is stated that before starting sample proceedings, efforts were made to get the public witnesses to join the proceedings, but none came forward.
2. It is further stated that one counterpart of the sample 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 fat is less than the prescribed minimum limit of 6.0% ".
CC No. 12/2001 FI Vs. Saleem Etc. Page 3 of 19
3. It is further stated that accused Salim S/o Sh. Anwar, Driver of Van No. DL1G B1683 is the vendor of M/s Ram Lal Milk Products and at the time of sampling he disclosed that the sample food article belongs to M/s Ram Lal Milk Products at Ramlal Ji Sewa Samiti, Shikarpur Road, Bulandshahar and Sh. Pushpender Singh S/o Sh. Dharamveer Singh is the nominee of M/s Ram Lal Milk Products and as such found to be incharge of and responsible to the said concern for its day to day conduct of business. 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)
(d) & (m) of the PFA Act, 1954 which is punishable U/s 16 (1) (a) r/w Section 7 of the said Act.
4. The accused were summoned vide order dated 30.01.2001. The accused no. 1 and 3 appeared in the court. The accused no. 1 Salim 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, Calcutta for analysis. Director, CFL on analysing the second counterpart of the sample in question opined vide his Certificate dated 09.04.2001 that "sample of Full Cream Milk is adulterated". CC No. 12/2001 FI Vs. Saleem Etc. Page 4 of 19
5. It is pertinent here to mention that on an application seeking discharge of accused no. 2, the accused no. 2 was discharged by the Ld. Predecessor of this court vide order dated 10.02.2004.
6. 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 said was framed against the accused no. 1 and 3 jointly vide order dated 10.02.2004 to which they pleaded not guilty and claimed trial.
7. Thereafter, prosecution examined three witnesses namely Sh. B.P. Saroha, Food Inspector as PW1, Sh. P.S. Batra, the then SDM/LHA as PW2 and FI Sh. N.N. Sharma as PW3 and PE was closed vide order dated 08.08.2012.
8. Statements of accused no. 1 and accused no. 3 U/s 313 Cr.P.C. were recorded separately on 20.12.2012 wherein accused claimed themselves to be innocent and opted for to lead evidence in their defence. However, both the accused did not lead any evidence in their defence and DE was closed vide order dated 01.02.2013.
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 prosecution has been launched against the accused on the basis of PA's report dated CC No. 12/2001 FI Vs. Saleem Etc. Page 5 of 19 25.07.2000. The report of PA has been exhibited and proved as Ex. PW2/C and same reveals that sample does not conform to standard because 'milk fat' is less i.e. 5.0% as against the minimum prescribed limit of 6.0%. The accused no. 1 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), Calcutta for analyzing the sample and the report thereof in the form of Certificate of the Director, CFL, Calcutta dated 09.04.2001 was received. Perusal of same shows that sample commodity i.e. Full Cream Milk was found to be adulterated and 'milk fat' was found to be 4.8%.
11. All the three witnesses examined by the prosecution have deposed more or less as per the averments made in the complaint.
12. PW1 Sh. B.P. Saroha who is the complainant in the present case and conducted the sample proceedings has deposed in his examination inchief that on 09.07.2000 he along with FI Sh. N.N. Sharma under the supervisions and directions of SDM/LHA Sh. P.S. Batra intercepted one milk van bearing registration No. DL1GB1683 at Ghazipur, Delhi which was being driven by accused Salim. He further deposed that he disclosed his identity and intention for taking the sample of pasteurized full cream milk in originally sealed polypacks having identical label declaration to CC No. 12/2001 FI Vs. Saleem Etc. Page 6 of 19 which accused agreed and thereafter at about 1.00 AM he purchased 1 litre sealed poly packet of pasteurized full cream milk on payment of Rs. 17 vide receipt Ex. PW 1/A. He further deposed that sealed poly packet containing the pasteurized full cream milk was kept for sometime to bring its contents at room temperature and the sample packet was properly shaken and thereafter he cut the same from one corner and poured its contents in clean and dry jug and mixed the same properly with the help of clean and dry measure. He further deposed that thereafter he divided the purchased sample into three equal parts by putting them in three clean and dry glass bottles and 27 drops of formalin were added in each of the sample bottle and all the three sample bottles were separately packed, marked, fastened and sealed accordingly to PFA Act and Rules.
13. PW1 has also placed on record the notice in Form VI given to the accused as Ex. PW1/B, letter written by vendor/accused Salim as Ex. PW1/C by which he informed that sample packets as well as the vehicle belonged to Ram Lal Milk Product, Notice U/s 14A as Ex. PW1/C1 addressing to Ram Lal Milk Product, Panchnama prepared at the spot as Ex. PW1/D, receipt by which one counter part of the sample was deposited with PA as Ex. PW 2/B, receipt by which reminding two counterparts of the sample were deposited with with SDM/LHA as Ex. PW2/A, PA report as CC No. 12/2001 FI Vs. Saleem Etc. Page 7 of 19 Ex. PW 2/C, letters sent to CMO, Bulandshahar as Ex. PW 1/E & Ex. PW1/F, letters sent to Ram Lal Milk products, Bulandshahar, UP as Ex. PW1/G & Ex. PW1/G, its reply as Ex. PW /G2, requisite sanction/consent by Director, PFA for prosecution against the accused as Ex. PW2/D, complaint as Ex. PW2/E, intimation letter sent to the accused as Ex. PW 2/F and copy of its postal registration receipt as Ex. PW 2/G.
14. PW2 Sh. P.S. Batra, the then SDM/LHA under whom supervision and directions, the sample proceedings were conducted has deposed on the similar lines as deposed by PW1 in his examinationin chief.
15. PW3 Sh. N.N. Sharma, Food Inspector who was made a witness at the time of conducting the sample proceedings has corroborated the version of PW1 and PW2 in his examinationinchief.
16. In his crossexamination, PW1 admitted that they had intercepted a moving tanker (van) to take sample. He stated that accused did not deliver the milk or offer for sale or sold the same to any customer in their presence. He denied the suggestion that as a Food Inspector, he was not empowered by law to draw a sample out of a moving truck unless the accused/vendor either sold or offered for sale or delivered the milk in their presence. He admitted that the complaint was filed after more than 5 ½ CC No. 12/2001 FI Vs. Saleem Etc. Page 8 of 19 months. He further stated that he cannot comment that even after addition of Formalin, milk can retain its value for a period of 4 months only or that thereafter the results would not be reliable. He denied the suggestion that because of delay in filing of the case, the accused was deprived of obtaining a correct analysis report from CFL.
17. PW2 stated in his crossexamination that the milk van was coming from UP to Delhi and it was intercepted by the Food Inspector for taking the sample. He further stated that accused Salim present in the court was driver of the said van. He further stated that in their presence, accused had not sold the sample packets to any other customers/purchaser. He denied the suggestion that Food Inspector had no power to take the sample from moving vehicle from the person who did not answer the description of Section 10 (1) & (2) of the PFA Act. He stated that he cannot say that even if the milk is kept in the AC Room, it cannot retain its value more than six months.
18. PW3 also admitted in his crossexamination that truck was in motion when it was intercepted. He further admitted that in their presence accused did not sell the milk to any customer or delivered the same to any consignee. He further admitted that it is not mentioned on notice Ex. PW1/B that how the milk was mixed with the help of jug and measure. CC No. 12/2001 FI Vs. Saleem Etc. Page 9 of 19 He denied the suggestion that the representative sample was not taken.
19. From the aforesaid crossexamination of PWs, the defence of the accused appears to be that Food Inspector was not empowered by law to lift the sample from a moving truck unless the sample is meant for sale. Meaning thereby, the defence of the accused is that sample of pasteurized full cream milk was not meant for sale and the Food Inspector had acted beyond his jurisdiction by lifting the sample which was not meant for sale. It is further defence of the accused that shelf life of the milk is not more than six months even after any preservative is added to it and due to delay in filing the complaint, the quality of the sample commodity has deteriorated and a reliable report could not be obtained from Director, CFL. In their statement U/s 313 Cr.P.C., it is also contended by accused no. 1 and 3 that representative sample was not taken by the Food Inspector and that is why there is variations in the report of Public Analyst and Director, CFL.
20. Ld. Counsel for accused has also vehemently argued that Food Inspector was not competent and had no power to lift the sample and he exceeded his jurisdiction as sample commodity lifted by the Food Inspector was not meant for sale. He further argued that the truck carrying the sample commodity was intercepted by the Food Inspector and sample was taken, but taking the sample from a moving truck does not come within the CC No. 12/2001 FI Vs. Saleem Etc. Page 10 of 19 definition of 'Sale'. He further argued that there is no evidence to show that accused was selling or delivering the sample commodity to anyone. Ld. Counsel for accused has further vehemently argued that complaint has been launched against the accused after expiry of 6 months from the date of lifting the sample and sample was sent to Central Food Laboratory (CFL), Calcutta after more than 8 months from the date of lifting the sample, while the shelf life of the milk product is not more than 4 months and there is no evidence that the sample commodity was kept in a refrigerator. He has contended that due to delay in filing the complaint and analysis of the sample, the quality of the sample of Pasteurized Full Cream Milk has deteriorated during the said period which is evident from vide variations in the report of Public Analyst and Director, Central Food Laboratory. He has further argued that accused are liable to be given benefit of doubt in view of the huge variations in the report of Public Analyst (PA) and Director, Central Food Laboratory (CFL). In support of his contentions, the Ld. Counsel for accused has relied upon the judgments reported in Gian Chand Vs. The State, Cr. Revision No. 327D/1996 and Municipal Corporation of Delhi Vs. Laxmi Narain Tandon Etc., Cr. Appeal No. 101104 of 1971.
CC No. 12/2001 FI Vs. Saleem Etc. Page 11 of 19
21. On the other hand, the Ld. SPP for complainant has argued that the sample of Pasteurized Full Cream Milk was lifted from the truck which was found to be in possession of accused no. 1 who was the driver and same was meant for sale and thus the Food Inspector was within his jurisdiction to lift the sample. He further argued that as per report of Director, Central Food Laboratory, the sample of Full Cream Milk lifted from the accused no. 1 was found to be adulterated and the report of Director, CFL being conclusive and supersedes the report of Public Analyst, therefore the accused cannot be given benefit of variations in the reports of PA and CFL.
22. First of all, I shall deal with the contention of the Ld. Counsel for accused that Food Inspector was not competent and had no power to lift the sample as sample commodity was not meant for sale.
23. It is not in dispute that sample commodity was lifted by the Food Inspector from a milk van which was being driven by accused Salim. The Food Inspector intercepted the milk van and lifted the sample of Pasteurized Full Cream Milk. As per the Ld. Counsel for accused, lifting the sample from a moving truck after intercepting the same does not come within the definition of "sale" as defined under the PFA Act and by lifting the sample in such a manner, the Food Inspector has acted beyond his CC No. 12/2001 FI Vs. Saleem Etc. Page 12 of 19 jurisdiction.
24. Section 2 (xiii) of the Prevention of Food Adulteration Act, 1954 defines the term "sale" as under: "sale" with its grammatical variations and cognate expressions, means the sale of any article of food, whether for cash or on credit or by way of exchange and whether by wholesale or retail, for human consumption or use, or for analysis, and includes an agreement for sale, an offer for sale, the exposing for sale or having in possession for sale of any such article, and includes also an attempt to sell any such article."
25. In view of aforesaid definition of "sale", it also covers sale of any article which is exposed for sale or having in possession for sale of any such article. In the present case, it is not the case of the accused that sample commodity was meant for self consumption or for charity purposes. No such suggestion has been put to PWs in their crossexamination that sample commodity was meant for self consumption or that same was not meant for sale. The accused no. 1 and 3 have also not taken such defence in their statements U/s 313 Cr.P.C. also that the sample commodity was not meant for sale. In the present case, admittedly the accused Salim was found in the milk van which had packets of pasteurized full cream milk and the said milk van was intercepted by the Food Inspector and thereafter he had lifted the sample. It is nowhere case of the accused that the milk packets kept in CC No. 12/2001 FI Vs. Saleem Etc. Page 13 of 19 the milk van were for self consumption or any other purpose other than the sale. Therefore, in view of aforesaid definition of "sale" defined under the PFA Act, which also includes the sale of any food article which is exposed for sale, the lifting of the sample of Pasteurized Full Cream Milk from the moving milk van after intercepting the same is squarely covered under the definition of "sale".
26. The authority relied upon by the Ld. Counsel for accused titled as Municipal Corporation of Delhi Vs. Laxmi narain Tandan Etc. is not applicable in the facts of the present case as in the said case, the issue was whether sale of food provided by a hotelier to a resident customer on a consolidated charge for room and the other amenities including food and when no rebate is allowed for any meal which may not be taken, amounted to sale within the meaning of the Act or not. But, in the present case, the facts are entirely different as stated above. Hence, this authority is not applicable in the facts and circumstance of the present case.
27. So far as the contention of the Ld. Counsel for accused that Food Inspector acted beyond his jurisdiction by lifting the sample which was not meant for sale is concerned, Section 10 of "The Prevention of Food Adulteration Act, 1954" provides the powers of Food Inspector and reads as under: CC No. 12/2001 FI Vs. Saleem Etc. Page 14 of 19 (1) A food inspector shall have power
(a) to take samples of any article of food from
(i) any person selling such article;
(ii) any person who is in the course of conveying, delivering or preparing to deliver such article to a purchaser or consignee;
(iii) a consignee after delivery of any such article to him; and
(b) ...............
(c) ...............
Explanation ...........
(2) ............
28. As such, as per Section 10 (1) (a) (ii) of the Act, the Food Inspector has powers to take the sample of any food article from any person who is in the course of conveying, delivering or preparing to deliver such article to a purchaser or consignee. In the present case, the accused no. 1 Salim was carrying the poly packets of pasteurized full cream milk in the milk van for the purposes of conveying or delivering to a purchaser or a consignee and in the absence of any explanation that the sample commodity of full cream milk was not meant for sale or same was not for conveying or delivering to any purchaser or consignee as there is nothing in the cross examination of PWs as noted above, there is no merit in the contention of the Ld. Counsel for accused that Food Inspector had no power to lift the CC No. 12/2001 FI Vs. Saleem Etc. Page 15 of 19 sample after intercepting the milk van.
29. Now, coming to the second contention of the Ld. Counsel for accused that there is delay in filing the present complaint which has resulted into deteriorated of the quality of sample commodity due to which reliable report could not be obtained from the Director, Central Food Laboratory.
30. In the present case, admittedly the sample of Pasteurized Full Cream Milk was lifted by FI Sh. B.P. Saroha on 09.07.2000 and the present complaint has been filed on 30.01.2001 on the basis of PA's report dated 25.07.2000 i.e. after about more than 6 months from lifting the sample. The second counterpart of the sample was analyzed by the Director, CFL on 09.04.2001 i.e. after about about more than 8 months from lifting the sample. As such, it is apparent that there is delay in analyzing the sample lifted by the complainant. No explanation has been put forth by the prosecution for delay in filing the complaint.
31. It has been held in Gian Chand Vs. The State by the Hon'ble Delhi High Court that, "Normally the sample with the Food Inspector, to which preservative had been added, could not have remained fit for analysis after more than six months even if it had been kept in a refrigerator." In the said case the sample lifted for analyses of milk was CC No. 12/2001 FI Vs. Saleem Etc. Page 16 of 19 found adulterated by the Public Analyst.
32. In the present case, admittedly the sample was got analyzed by Director, CFL on 09.04.2001 i.e. after about more than 8 months from the date of lifting the sample on 09.07.2000. No evidence has been led by the prosecution that the sample of 'Pasteurized Full Cream Milk' lifted by the Food Inspector was kept in a refrigerator. Even if it is assumed that the sample was kept in a refrigerator, still in view of law laid down in the aforesaid authority cited supra, it cannot be said that the sample of 'Pasteurized Full Cream Milk' remained fit for analysis after 8 months from the date of lifting the same. Even PWs could not deny in their cross examination that even if the milk is kept in the AC room or even after addition of formalin, it can retain its value for a period of 4 months only and thereafter results would not be reliable. Therefore, there appears to be substance in the contention of the accused that due to delay in analzing the sample, the quality of the sample might have been deteriorated and, therefore, there is variations in the report of Public Analyst and Director, Central Food Laboratory.
33. As per report of Public Analyst (PA) Ex. PW 2/C, the 'milk fat content' of the sample has been shown to be 5.0% as against the minimum prescribed requirement of 6.0%, while in the report of CFL, the 'milk fat CC No. 12/2001 FI Vs. Saleem Etc. Page 17 of 19 content' of the sample has been shown to be 4.8%. Similarly, the 'milk solids not fat content' of the sample has been shown to be 9.32% as per the report of Public Analyst (PA), while in the report of CFL, same has been shown to be 9.4%.
34. There are variations in the report of aforesaid two Analysts and it goes to show that the sample was not properly mixed up and hence it cannot be said to be representative sample and further that sample was homogenized before lifting it. It has been held by the Hon'ble Delhi High Court in in M/s Raja Ram Seth & Sons & Anr. Vs. Delhi Administration 2012 (2) FAC 523 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." Similar view has been taken by the Hon'ble High Court of Delhi in State (Delhi Administration) Vs. Ram Singh & Ors. 2009 (1) FAC 371. Reliance may also be placed upon State Vs. Suresh Kumar & Anr. 2010 (2) FAC 204.
35. In view of law laid down in the aforesaid authorities, since there is variations in the report of PA and CFL which is beyond the CC No. 12/2001 FI Vs. Saleem Etc. Page 18 of 19 permissible limit of .3 %, it appears that sample was not representative one and therefore, benefit of doubt is liable to be given to the accused persons. Hence, accused no. 1 and 3 are acquitted from the charges leveled against them.
File be consigned to Record Room.
Announced in the open Court (Balwant Rai Bansal)
on 25th April, 2013 ACMMII/ PHC/ New Delhi
CC No. 12/2001
FI Vs. Saleem Etc. Page 19 of 19
CC No. 12/2001
DA Vs. Salim Etc.
25.04.2013
Present: Sh. Masood Ahmad, Ld. SPP for complainant.
Accused no. 1 and 3 with counsel Accused no. 2 has already been discharged.
Vide my separate Judgment of even date dictated and announced in the open court, the accused no. 1 and 3 stand acquitted of the charges leveled against them. Previous Bail Bond / Surety Bond stands cancelled. Surety stands discharged. Endorsement on the documents of the previous surety, if any, be cancelled.
Accused are directed to furnish fresh bail bonds in compliance of Section 437A Cr.P.C. Accused are admitted to bail on furnishing the P/B and S/B of Rs. 15,000/ each. Bail bonds furnished. Same are accepted.
File be consigned to Record Room.
(Balwant Rai Bansal) ACMMII/PHC/ND/25.04.2013 CC No. 12/2001 FI Vs. Saleem Etc. Page 20 of 19