Delhi District Court
Joginder Singh vs Delhi Admn. (Pfa Deptt on 2 June, 2010
1
IN THE COURT OF SH. J. R. ARYAN,
ADDITIONAL SESSIONS JUDGE; NEW DELHI
Date of Institution : 16.01.2010
Date of judgment reserved on : 06.05.2010
Date of decision : 02.06.2010
Criminal Appeal No. 06/2010
IN THE MATTER OF :
Joginder Singh
S/o Shri Randhir Singh
R/o Pahalwan Dairy, Near Petrol Pump,
Shimbhawali, Distt. Ghaziabad, UP. ..... Appellant
Versus
Delhi Admn. (PFA Deptt, NCT of Delhi) ..... Respondent
JUDGMENT:
Accused - appellant Joginder Singh has been held guilty and convicted u/s. 16.1.A R/W Section 7 of the PFA Act by Ld. ACMM-II, New Delhi, vide conviction judgment dt. 7.12.2009. Facts emerging from conviction judgment and not much in controversy are that :
On 06.06.1999 at around 1.30 am, Food Inspector R. P. Singh along with a team of officials from Deptt. of PFA intercepted a milk tanker plying on a registration no. DL-IL-B-2649 at Kureji Chowk, Wazirabad Road , Delhi and milk described and mentioned as double tone on the tanker was found stored in tanker for sell and a sample of milk was drawn after proper homogenizing the milk contents of the tanker with the help of a clean and dry plunger. The sample milk consisting 750 ml quantity was drawn in three clean and dry glass bottles. 20 drops of formalin as preservative was added in each of these three bottles and bottles were Criminal Appeal No. 06/2010 page No.1 of page No.7 2 packed and fastened and sealed . Signature of accused Joginder Singh as a vendor were obtained and rest of the formalities were completed.
Sample has got analyzed by Public Analyst , Govt. of Delhi. Report Ex. PW-1/G was received to the effect that milk fat was 1.9% and milk solids not fat was 8.36 %. The sample was reported adulterated as not confirming to standard because milk solids not fat was less than prescribed minimum limits of 9%.
On the filing of the prosecution after obtaining consent in terms of section 20 of the PFA Act proved as Ex. PW-1/H before trial court, that accused appeared before the trial court. Accused applied for sending counterpart of the sample to Central Food Laboratory and accordingly counterpart sample was sent to CFL. Report Ex. P-X was received to the effect that sample was found containing milk fat 1.7%, milk solids not fat 8.4% and thereby the sample was reported "Doble tone milk as adulterated". Accused was tried as a summons trial before trial court. Ld. MM after dealing with the contentions raised on behalf of accused that Food Inspector was not empowered to lift sample from a moving truck u/s. 10 of the PFA Act and dealing with the further defence arguments and contentions that milk had not been properly homogenized found ultimately that contentions unsustainable and unacceptable and convicted accused and sentenced him to RI for six months with a fine of Rs. 3000/- , I.D., to suffers one month SI has been awarded. Accused is in appeal before this court.
I have heard Sh. M. K. Gupta , Ld. Counsel for the appellant - accused and Special PP for the Deptt of PFA, NCT, Delhi.
Ld. Counsel argued that sample could not have been drawn Criminal Appeal No. 06/2010 page No.1 of page No.7 3 from the moving truck. It could have been drawn from a person to whom the food article milk was to be delivered.
Counsel submitted further that method of taking sample was not proper and has resulted serious prejudice to the accused and conviction judgment will be a serious miscarriage of justice. Counsel submitted that milk ought to have been homogenized by a mechanical agitator. Homogenizing milk in a bulk quantity in the tanker, as witnesses have admitted that there was around 12000 liters of milk in the tanker, by a plunger would not be enough to homogenize the milk and thereby sample drawn could not be said to be a representative one. Ld. counsel referred to guidelines contained in ISI booklet titled Indian Stand " Method of sampling for milk and milk products". At point 9.2 as regards apparatus to be used for homogenizing milk it is mentioned that for mixing the contents of large vessel or storage, road and rail tank, mechanically agitation is advisable. Another point argued by Ld. counsel was that the counterpart sample was examined at CFL on a gap of around 8 months. In a case of milk sample even where preservative was added and if milk sample as kept on a room temperature , its shelf life would be four months and if it was kept in refrigerator then its life could be 6 months before shelf contents of the milk starts a process of decomposition. Relying upon Supreme Court judgment in case MCD v Ghisa Ram, 1951,77, FAC,SC,93, which has been referred to and relied upon by Delhi High Court in Gian Chand v STATE, 1978(1) FAC 15, it is submitted by Ld. defence counsel that counterpart sample in the present case when examined at CFL, after the gap of 8 months, the report could not be accepted as reliable for the analysis mentioned in the report. Counsel submitted that conviction judgment deserves to be set aside. On the other hand, Ld. Special PP, Shri Padhey argued that both these points have been dealt with elaborately by Ld. trial court in the Criminal Appeal No. 06/2010 page No.1 of page No.7 4 conviction judgment supported by law point and conviction judgment suffers no illegality and deserve to be sustained and up-held.
Arguments that sample could not have been drawn from tanker which was in a process of transportation as situation would not be covered by Section 10 of the Act, Ld MM found the contention unacceptable. Ld MM relied upon statement given by accused voluntarily when sample was drawn that he was the owner of the double toned milk in tanker and was carrying it for sale. Even otherwise sub clause 2 of Section 10 provides for category of person from whom food sample may be drawn and it includes a person who is in the course of conveying, delivering or preparing to deliver such article to a purchaser or consignee. Situation covers the accused in present like case when he is carrying milk in a tanker, may be it was to be delivered to a purchaser or a consignee. Once the milk was meant for sale then there was no prohibition in drawing sample from the tanker. Reliance on Supreme Court judgment in the case MCD Vs Laxmi Narain Tandon 1975 PFA 444 is not strictly attracted in the facts situation of the present case. In the reported judgment food being provided by Hotelier to resident customers on a consolidated charge for a room amenities including food would not mean the food article amounted to sale within the meaning of the Act, situation in the case is different.
Another point argued by ld defence counsel was that the sample drawn could not be said to be a representative sample of a homogenized milk contents of the tanker. I do agree with this argument and contention of ld defence counsel. This is a case where milk around 10-12000 liter quantity was being carried in a tanker. Witnesses examined have deposed in cross examination that tanker was around 10 feet long 5 feet wide and around 4 ½ - 5 feet high (deep) PW-1 admits that milk quantity in the Criminal Appeal No. 06/2010 page No.1 of page No.7 5 tanker could be 12000 liter. PW-2 has also given almost identitical features of the tanker. All witnesses in their examination in chief merely deposed that milk was homogenized with the help of clean dry plunger. It is only in their cross examination that they came up with the description of plunger as 6 feet in length with a disk around 1 feet in diameter. As regards homogenizing the milk quantity in the tanker only averment in the complaint is that before taking sample milk was homogenized with a dry plunger by rotating it clockwise, anti-clockwise , up and downwards several times. Pachnama proved as Ex.PW1/C appears to be a cyclostyled document filled up with open blank lines in pen writing and irrelevant words deleted. There is no mention at all if in a special peculiar situation that milk was homogenized by a special category of plunger with a broad one foot diameter base/disk. To my opinion homogenizing food article milk in this case in a peculiar situation ought to have been specifically described and non describing of this method either in the complaint or in the panchnama may suggest that method now deposed in cross examination was a kind of after thought and as an improvement. Ld defence counsel further appeared to be justified when he pointed out discrepancy in two reports i.e report by the public analyst where milk fat contents in the sample were found 1.9 % and milk solids not feet 8.36 % whereas report by CFL reflects that milk was 1.7% and milk solids not fat 8.4 %. Variation in milk fat could suggest a non homogenized sample. Ld defence counsel pointed out that standard for a double toned milk as regards milk fat was 1.5 % and thereby in both the reports milk fat contents were above the minimum prescribed. It is only the milk solids not fat that percentage fell a little below the minimum prescribed 9%. Ld MM relied upon High Court judgment in a case ( Kashi Nath Vs State 2005 (2) FAC 219 ) on the point that where variation in two reports was less than .3% the Criminal Appeal No. 06/2010 page No.1 of page No.7 6 sample could be said and considered to be not a representative one. The judgment may not be attracted in the present facts situation where we do not have a satisfactory evidence that the product was duly homogenized before the sample was drawn and that could be the reason that variation of .2 % appears in the milk fat contents of two samples.
Ld defence counsel argued another point that there was a gap of 8 months till when appellant accused exercised his right U/s 13 (2) PFA Act and the sample milk would not have preserved its constituents even if preservative was added beyond a certain period and on that point ld counsel had relied on judgment by Delhi High Court in a case Gian Chand Vs State wherein reliance was placed on another Supreme Court judgment in MCD Vs Ghisa Ram. It was found that the sample curd in the reported judgment even if preservative had been added could not have remained fit for analysis after more than six months even if it was kept in refrigerator. There being no evidence to that effect, it was to be presumed that it was not kept in refrigerator and therefore decomposition should have taken place earlier. Accordingly it was held that the court was inclined to agree with the submissions of ld counsel that genuineness of the sample which had been produced before trial court as the counter sample was not beyond doubt.
Defence counsel is justified in placing reliance on this findings as applicable in the fact situation of the present case. Admittedly in the present case counter sample taken up for analysis at FSL was on 23/2/200 and by that time about 8 months period had lapsed. There is no evidence in the present case if the sample had been kept in refrigerator. Considering shelf life of six month for the analysis of the milk sample, the CFL report suggesting the sample analysable puts a question mark to the genuineness of the counter sample. The argument made by defence Criminal Appeal No. 06/2010 page No.1 of page No.7 7 counsel on this point cannot be ignored.
Non examination of all these aspects by Ld trial court has resulted in miscarriage of justice and the conviction judgment thereby suffers illegality. Accused deserves benefit of doubt on both the points i.e the milk had not been homogenized before the sample was drawn and exercise of right U/s 13 (2) of PFA Act by accused after 8 months leaves a reasonable doubt in the genuineness of the counter sample sent for analysis. Conviction accordingly deserves to be set aside. Appeal is allowed.
Trial court record along with copy of this order be sent to Ld. trial court.
Appeal file be consigned to record room.
Announced in the Open (J. R. ARYAN)
court on 02/06/2010. ADDITIONAL SESSIONS JUDGE
NEW DELHI.
Criminal Appeal No. 06/2010 page No.1 of page No.7
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Criminal Appeal No. 06/2010
IN THE MATTER OF :
Joginder Singh
S/o Shri Randhir Singh
R/o Pahalwan Dairy, Near Petrol Pump,
Shimbhawali, Distt. Ghaziabad, UP. ..... Appellant
Versus
Delhi Admn. (PFA Deptt, NCT of Delhi) ..... Respondent
02/06/2010
Present: Appellant Joginder Singh in person.
Sh. Jagdish Chand representative of department of PFA.
Vide separate judgment conviction of appellant is set aside.
Appeal is allowed. Appeal file be consigned to record room.
(J. R. ARYAN)
ADDITIONAL SESSIONS JUDGE
NEW DELHI.
02/06/2010.
Criminal Appeal No. 06/2010 page No.1 of page No.7