Delhi District Court
Da vs . Harish Chander Mishra Page 1 Of 10 on 14 July, 2014
IN THE COURT OF GAURAV RAO
ADDITIONAL CHIEF METROPOLITAN MAGISTRATEII,
PATIALA HOUSE COURTS, NEW DELHI
C.C. No. 240/05
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
Harish Chander Mishra
S/o Sh. Shambu Nath Mishra
M/s New Luxmi Dairy,
C318, Gandhi Vihar,
Delhi54.
R/o C318, Gandhi Vihar,
Delhi54
........ VendorcumProprietor
Serial number of the case : 240/05
Date of the commission of the offence : 14.07.2005
Date of filing of the complaint : 21.10.2005
Name of the Complainant : Sh. Gian Chand, Food Inspector
CC No. 240/05
DA Vs. Harish Chander Mishra Page 1 of 10
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 : 14.07.2014
Judgment announced on : 14.07.2014
Brief facts of the case
1.In brief the case of the prosecution is that on 14.07.2005 at about 04.00 p.m., Food Inspector Gian Chand and Field Assistant J.P. Bhardwaj under the supervision and directions of SDM / LHA Sh. B.P. Singh visited M/s New Luxmi Dairy, C318, Gandhi Vihar, Delhi 54, where accused Harish Chander Mishra who was the vendorcumproprietor was found present conducting the business of sale of various dairy articles including cow 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 cow 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 of cow milk as per PFA rules 1955 as per tests performed as the Milk solids not fat were less than the prescribed minimum limit of 8.5% and accordingly after obtaining the necessary Sanction / Consent under Section 20 of the CC No. 240/05 DA Vs. Harish Chander Mishra Page 2 of 10 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.
3. After the complaint was filed, the accused was summoned vide orders dated 21.10.2005. 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 however the application was dismissed vide detailed order dated 27.03.2006.
4. In pre charge evidence prosecution examined one witness i.e. Sh. Gian Chand, Food Inspector as PW1 and and thereafter pre charge evidence was closed vide orders dated 20.11.2009.
5. Charge 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 23.01.2010 to which accused pleaded not guilty and claimed trial.
6. In support of its case the complainant/prosecution examined three witnesses i.e. the Food Inspector Gian Chand as PW1, then SDM/LHA B.P. Singh as PW2 and Field Assistant J.P. Bhardwaj as PW3 and PE was closed vide order dated 26.09.2012.
CC No. 240/05 DA Vs. Harish Chander Mishra Page 3 of 10
7. Statement of the accused U/s 313 Cr. P.C. was recorded on 26.10.2013 wherein the accused claimed himself to be innocent.
A brief scrutiny of the evidence recorded in the matter is as under:
8. PW1 FI Sh. Gian Chand deposed that on 14.07.2005 he along with FA J.P. Bhardwaj and other staff under the supervision and direction of SDM/LHA Sh. B.P. Singh went to M/s New Laxmi Dairy, C318, Gandhi Vihar, Delhi where accused Harish Chand Mishra was found conducting the business of aforesaid Dairy including cow's milk for sale for human consumption. He deposed that they disclosed their identity and intention for taking the sample of cow's milk lying in an open drum bearing label declaration as cow's milk for analysis to which accused agreed. He deposed that before taking the sample he tried his best to procure some public witnesses by requesting some public witnesses by requesting some neighborers, customers and passersby etc. to join the sample proceedings but as none agreed then on his request FA J.P. Bhardwaj agreed and joined as a witness. He deposed that then at about 04.00 p.m. he purchased 1500 Ml of cow's milk lying in an open drum having the label declaration as Cow's milk on payment of Rs. 21/ vide receipt Ex. PW1/A. He deposed that sample was taken after proper homogenization with the help of a clean and dry plunger by rotating in all possible directions several times. He deposed that then he divided the sample into three equal parts by putting them in three clean and dry glass bottles separately. He deposed that 40 drops of formalin were added to each sample CC No. 240/05 DA Vs. Harish Chander Mishra Page 4 of 10 bottle and shaken properly for its proper mixing. He deposed that each sample bottle containing the sample was then separately packed, fastened, marked and sealed according to PFA Act and Rules. He deposed that LHA slip bearing his code number and signature was affixed on all the three counterparts of the bottle and then vendor's signatures were obtained on the LHA slips in such a manner that a portion of his signature were on the wrapper as well as on the LHA slips. He deposed that then notice in form VI Ex. PW1/B was prepared at the spot and copy of it was given to the accused as per his endorsement at portion A to A bearing his signature at point A. He deposed that panchnama Ex. PW1/C was prepared. He deposed that vendor also furnished his statement Ex. PW1/D that he is incharge and responsible for day to day affairs of the said Dairy. He deposed that report under Rule 9 (e) Ex. PW1/D1 was prepared at the spot. He deposed that all these documents Ex. PW1/A to Ex. PW1/C were read over and explained to the accused in Hindi and after understanding the same accused signed at point A, witness signed at point B and he signed at point C respectively. He deposed that one counterpart of the sample was deposited with the PA on 15.07.2005 vide receipt Ex. PW1/E in a sealed packet containing one copy of memo in Form VII and another sealed envelope containing one copy of another Memo In Form VII separately. He deposed that two counterparts of the sample along with two copies of memo of From VII in a sealed packet were deposited in intact condition with LHA on 15.07.2005 vide receipt Ex. PW1/F with the intimation that one counterpart 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 CC No. 240/05 DA Vs. Harish Chander Mishra Page 5 of 10 sample in question was sealed. He deposed that PA report was received vide Ex. PW1/G according to which the sample does not conform the standard as mentioned therein at portion X. He deposed that during investigation he sent a letter Ex. PW1/H to STO Ward no. 72 and reply received at portion A according to which the said dairy was not found registered with the Sales Tax. He deposed that it was revealed that vendor was proprietor of M/s New Laxmi Dairy and was incharge and responsible for day to day affairs of the said Dairy. He deposed that on completion of investigation the complete case file along with all statutory documents were sent through LHA to the Director, PFA Sh. Diwan Chand who after going through the case file, applied his mind and gave his consent for prosecution Ex. PW1/I. He deposed that complaint Ex. PW1/J was filed in the court by him bearing his signature at point A. He deposed that intimation letter Ex. PW1/K along with PA report was sent to accused by registered post by the SDM/LHA Sh. Yogesh Pratap as earlier LHA/SDM was transferred which was not received back undelivered. The copy of postal registration receipt is Ex. PW1/L, bearing the relevant entry at portion A and B.
9. During his cross examination he stated that on 14.07.2005 he along with SDM/LHA Sh. B.P. Singh and FA Sh. J.P. Bhardwaj reached at Laxmi Dairy at about 03.45 p.m. He stated that on that day he lifted only one sample in the present case. He stated that only one customer was present at the shop at the time when they reached there. He admitted that M/s New Laxmi Dairy is situated in a residential area but he denied that at the time of sample proceeding there was a huge crowd at the CC No. 240/05 DA Vs. Harish Chander Mishra Page 6 of 10 spot. He stated that he sealed the sample commodity in clean and dry glass bottles. He denied the suggestion that he did not complete the necessary formalities at the spot or that he completed the same in his office. He stated that 40 drops of formalin as preservative were added in each sample bottle. He stated that one counterpart of the sample was deposited on the next working day with PA i.e. 15.07.2005. He stated that he requested some customers, nearby shopkeepers and passersby to join the sample proceedings but none agreed. He stated that he cannot recollect now if there was a heavy rain on the day when he lifted the sample. He stated that he had sent intimation letter along with PA report through LHA to the accused in this case. He denied the suggestion that the drum from which the sample was drawn was lying outside the dairy of the accused. He voluntarily stated that it was lying inside the dairy. He stated that there was no prior complaint against the accused and it was routine lifting of the sample. He stated that one more sample from the accused was lifted but he does not remember if the said sample was lifted by him prior to this sample or after this sample. He admitted that two counterparts of the sample were kept at room temperature in SDM/LHA office. He denied the suggestion that he was deposing falsely.
10. PW 2 the then SDM/LHA Sh. B.P. Singh. and PW3 J.P. Bhardwaj, Field Assistant have deposed on the same lines as deposed by PW1 in his examination in chief.
11. This so far is the prosecution evidence in the matter.
CC No. 240/05 DA Vs. Harish Chander Mishra Page 7 of 10
12. 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.
13. At the outset it was argued by Ld. Defence counsel Sh. Sandeep Kumar Mishra 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 Public Analyst used Gerber method which is not a sure/accurate test and accordingly no reliance can be placed upon the Public Analyst's report.
14. To establish its case of adulteration i.e. that the sample of Cow milk was not conforming to the standards the prosecution is relying upon the report of Public Analyst dated 29.07.2005 as the application u/s 13 (2) for sending the second counterpart of the sample to Director, CFL was dismissed by the Ld. Predecessor of this court vide orders dated 27.03.2006. Hence the outcome of the trial has to be decided on the basis of the Public Analyst's report only. The Public Analyst had reported that the sample of cow milk did not conform to the standards as the milk solids not fat were less than the prescribed minimum limit of 8.5%. However as per the report of the Public Analyst he used the Gerber method for the purpose of analyzing the sample of cow milk so collected by the Food Inspector. Thereafter By CC No. 240/05 DA Vs. Harish Chander Mishra Page 8 of 10 difference he calculated the contents of the milk solids not fat in the sample of cow milk. 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."
15. 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.
16. In view of the above as the Public Analyst used the Gerber method no reliance can be placed upon the report for the purpose of concluding whether the sample of cow milk so collected was adulterated or not. Though Ld. SPP for the CC No. 240/05 DA Vs. Harish Chander Mishra Page 9 of 10 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.
17. 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.
18. I order accordingly.
Announced in the open Court (Gaurav Rao)
on 14th July 2014 ACMMII/ New Delhi
CC No. 240/05
DA Vs. Harish Chander Mishra Page 10 of 10