Delhi District Court
Da vs . Daya Nand Page 1 Of 9 on 25 August, 2014
IN THE COURT OF GAURAV RAO
ADDITIONAL CHIEF METROPOLITAN MAGISTRATEII,
PATIALA HOUSE COURTS, NEW DELHI
C.C. No. 1945/09
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
Daya Nand S/o Sh. Lala Ram
M /s Chaudhary Dairy,
1655/90, Shanti Nagar,
Opposite Haryana Jewellers,
Delhi35
R/o 1655 C,
Gali No. 117, Ganeshpura, Tri Nagar
Delhi110035
........ VendorcumProprietor
Serial number of the case : 1945/09
Date of the commission of the offence : 30.06.2009
Date of filing of the complaint : 16.09.2009
Name of the Complainant : Sh. Gian Chand, Food Inspector
CC No. 1945/09
DA Vs. Daya Nand Page 1 of 9
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 : Acquitted
Arguments heard on : 25.08.2014
Judgment announced on : 25.08.2014
Brief facts of the case
1.In brief the case of the prosecution is that on 30.06.2009 at about 11.00 a.m. Food Inspector Gian Chand and Field Assistant Sh. Manohar Lal under the supervision and directions of SDM / LHA Sh. Naveen Kumar Saxena visited M/s Chaudhary Dairy,1655/90, Shanti Nagar, Opposite Haryana Jewellers, Delhi35, where accused Daya Nand who was the vendorcumproprietor was found present conducting the business of sale of various dairy articles including mixed milk 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 mixed milk.
2. 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 standard because milk fat and milk solids not fat were less than the prescribed minimum limit of 4.5% and 8.5% respectively and accordingly after obtaining the necessary Sanction / Consent under Section 20 of the Act the present CC No. 1945/09 DA Vs. Daya Nand Page 2 of 9 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.
3. After the complaint was filed, the accused was summoned vide orders dated 16.09.2009. The accused 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 20.10.2009. The Director, CFL after analysing the sample opined vide its Certificate dated 05.11.2009 that "sample does not conform to the standards of Mix Milk as per PFA Rules 1955 as per tests performed". The Director so opined as the sample was not conforming to standard because milk fat was less than the prescribed minimum limit of 4.5%.
4. Notice 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 the accused vide order dated 19.01.2010 to which accused pleaded not guilty and claimed trial.
5. Thereafter the complainant/prosecution examined three witnesses i.e. Sh. Naveen Kumar Saxena as PW1, PW2 FI. Gian Chand and FA Sh. Manohar Lal as PW3 and thereafter PE was closed vide orders dated 06.12.2013. CC No. 1945/09 DA Vs. Daya Nand Page 3 of 9
6. Statement of the accused U/s 313 Cr. P.C. was recorded on 03.05.2014 wherein the accused claimed himself to be innocent.
A brief scrutiny of the evidence recorded in the matter is as under:
7. PW1 Sh. Naveen Kumar Saxena deposed that on 30.06.2009 he was posted as SDM/LHA Model Town and on that day under his supervisionsand directions FI Sh. Gian Chand and FA Manohar Lal visited M/s Chaudhary Dairy, 1655/90, Shanti Nagar opposite Haryana Jewellery, Delhi, where accused Daya Nand was found conducting the business of the said Dairy including mixed milk, for sale for human consumption. He deposed that they disclosed their identity and intention for purchasing the sample of mixed milk lying in the open drum bearing label declaration, to which accused agreed. He deposed that before taking the sample, FI Gian Chand tried his best to procure some public witnesses by requesting some neighborers, customers and passersby to join the sample but as none agreed and on his request, FA Manohar Lal, agreed and joined as witness. He deposed that at about 11.00 am, FI Gian Chand purchased 1500 ml of mixed milk from an open drum bearing label declaration after properly mixing the milk with the help of clean and dry plunger by rotating it in all possible directions several times, on payment of Rs. 36/ vide vendor's receipt Ex. PW1/A. He deposed that the milk was taken with the help of 1 litre measure. He deposed that FI Gian Chand divided the sample then and there into CC No. 1945/09 DA Vs. Daya Nand Page 4 of 9 three equal parts by putting them in three clean and dry glass bottles. He deposed that 40 drops of formalin were added to each of the sample bottle with the help of clean and dry dropper and was properly shaken for its uniform distribution. He deposed that each bottle containing the sample was then separately, packed, fastened and sealed according to PFA Act and Rules. He deposed that LHA slip bearing his code number and signatures were affixed on each counterpart. He deposed that vendor signatures were obtained on the LHA slips bearing his signature and stamps and on the wrappers of the bottles. He deposed that Notice in form VI Ex. PW1/B was prepared at the spot. He deposed that a copy of which was given to the vendor bearing his endorsement from portion A to A. He deposed that Panchnama Ex. PW1/C was also prepared at the spot. He deposed that Raid Report under Rule 9(e) Ex. PW1/C1 was also prepared at the spot. He deposed that vendor also furnished the photocopy of his Election I Card mark X. He deposed that all the documents Ex. PW1/A to C were prepared on the spot and read over and explained to the vendor in Hindi who after understanding the same signed at point A, witness signed at point B and the FI signed at point C respectively. He deposed that the two counter parts of the sample along with two copies of memo of Form VII in a sealed packet were deposited in intact condition with him on 30.06.09 i.e. same day vide receipt Ex. PW1/D bearing his signature at point A with the intimation that one counter part of the sample has already been deposited in intact condition with the PA. He deposed that all the copies of memo of Form VII bore the same seal impression with which the sample in question was sealed. He deposed that PA receipt is Ex. PW1/E. He CC No. 1945/09 DA Vs. Daya Nand Page 5 of 9 deposed that the PA Report Ex. PW1/F was received, according to which, the sample does not conform to the standards, as mentioned therein at portion X. He deposed that then on completion of the investigation by the FI, the complete case file along with all statutory documents were sent through him to the Director (PFA), Sh. Mohan Lal, who after going through the case file, applied his mind and and gave his consent for prosecution Ex. PW1/G which bears his signature at point A. He deposed that the complaint Ex. PW1/H was filed in Court by FI Gian Chand bearing his signature at point A. He deposed that thereafter, he was transferred and further action was taken by his successor.
8. During his cross examination he stated that sample was taken at about 11.00 am. He stated that Notice in Form VI was given to the accused after taking sample. He stated that the length of the plunger was about 3 feet and diameter of the disk was about 6 inches having 6 holes. He stated that plunger was rotated approximate 1012 times. He stated that the height of the drum from which the sample was lifted was about 4 feet having 2 feet diameter. He stated that bottles were already dry and clean and the same were not made again dry and clean at the spot. He denied the suggestion that a representative sample was not taken.
9. PW2 FI. Gian Chand and PW3 FA Manohar Lal deposed on the same lines as deposed by PW1 in his examination in chief.
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10. This so far is the prosecution evidence in the matter.
11. I have heard the arguments advanced at bar by the Ld. defence counsel as also the Ld. SPP for complainant. I have also carefully gone through the evidence recorded in the matter and perused the documents placed on record by the prosecution in this case.
12. At the outset it was argued by Ld. Defence counsel Sh. Shailender Billore that the present case is covered by the judgment passed by the Hon'ble Apex Court in Corporation of City of Nagpur Vs. Neetam Manikraro Kature & Anr. 1998 SCC (Cri) 564 . It was argued that the Director, CFL used Gerber method which is not a sure/accurate test and accordingly no reliance can be placed upon the Director's report.
13. To establish its case of adulteration i.e. that the sample of mixed milk was not conforming to the standards the prosecution is relying upon the report of Director, CFL dated 05.11.2009 who had reported that the sample of mixed milk did not conform to the standards as the milk fat was less than the prescribed minimum limit of 4.5%. However as per the report of the Director, CFL, he used the Gerber method for the purpose of analyzing the sample of mixed milk so collected by the Food Inspector. It is reflected in his report that he used I.S. 1224 Part I 1977 method for the purpose of calculating the percentage of milk fat in the sample of mixed milk so CC No. 1945/09 DA Vs. Daya Nand Page 7 of 9 analyzed and thereafter By difference calculated the contents of the milk fat in the sample of mixed 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 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:
".......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."
14. 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.
15. 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 CC No. 1945/09 DA Vs. Daya Nand Page 8 of 9 mixed 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 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.
16. Accordingly in view of my above discussion and the law laid down in Corporation of City of Nagpur Vs. Neetam Manikraro Kature & Anr. 1998 SCC (Cri) 564 the accused stands acquitted of the charges in the present case.
17. I order accordingly.
Announced in the open Court (Gaurav Rao)
on 25th August 2014 ACMMII/ New Delhi
CC No. 1945/09
DA Vs. Daya Nand Page 9 of 9