Delhi District Court
Da vs . Om Parkash Yadav Page 1 Of 5 on 7 August, 2014
IN THE COURT OF GAURAV RAO
ADDITIONAL CHIEF METROPOLITAN MAGISTRATEII,
PATIALA HOUSE COURTS, NEW DELHI
C.C. No. 171/11
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
Om Parkash Yadav
s/o Sh. Balbir Singh
M/s Bhagwan Dairy
Shop No. 2590, Chuna Mandi,
Paharganj, Delhi55
R/o House no. 3025, Chuna Mandi,
Paharganj, Delhi ........ VendorcumProprietor
Serial number of the case : 171/11
Date of the commission of the offence : 09/06/11
Date of filing of the complaint : 03/08/11
Name of the Complainant : Sh. S.P. Singh, 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.
CC No. 171/11
DA Vs. Om Parkash yadav Page 1 of 5
Plea of the accused : Pleaded not guilty
Final order : Acquitted
Arguments heard on : 07/08/14
Judgment announced on : 07/08/14
Brief facts of the case
1.In brief the case of the prosecution is that on 09.06.2011 at about 10.00 a.m. Food Inspector S.P. Singh and Field Assistant Sh. Siya Ram under the supervision and directions of SDM / LHA Sh. Radhey Shyam visited M/s Bhagwan Dairy, Shop no. 2590, Chuna Mandi, Paharganj New Delhi where accused Om Parkash Yadav who was the vendorcumproprietor was found present conducting the business of sale of various dairy articles including toned 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 toned 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 toned milk as per PFA rules 1955 as per tests performed as Milk solids not fat was less than the prescribed minimum limit of 8.5% 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. CC No. 171/11 DA Vs. Om Parkash yadav Page 2 of 5
3. After the complaint was filed, the accused was summoned vide orders dated 03.08.2011. 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 26.09.2011. The Director, CFL after analysing the sample opined vide its Certificate dated 10.10.2011 that "sample does not conform to the standards of Toned Milk as per PFA Rules 1955 as per tests performed". The Director so opined as the milk solids not fat was found at 8.20% against the minimum prescribed standard of 8.5%.
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 27.01.2012 to which accused pleaded not guilty and claimed trial.
5. The complainant/prosecution has examined two witnesses i.e. FI S.P. Singh as PW1 and the then SDM/LHA Sh. Radhey Shyam as PW2 so far.
6. Today no PW was present. Perused the records. To establish its case of adulteration i.e. that the sample of toned milk was not conforming to the standards the prosecution is relying upon the report of Director, CFL dated 10.10.2011 who had CC No. 171/11 DA Vs. Om Parkash yadav Page 3 of 5 reported that the sample of toned 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 Director, CFL, he used the Gerber method for the purpose of analyzing the sample of toned 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 toned milk so analyzed and thereafter By difference calculated the contents of the milk solids not fat in the sample of toned 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."
7. Reliance may also be placed upon State of Maharashtra Vs. Narayan Dewlu Shanbhaju (1979) 3 Cr LR 117 (Bombay), G.K. Upadhayay Vs. Kanubhai CC No. 171/11 DA Vs. Om Parkash yadav Page 4 of 5 Raimalbhai Rabari and another 2009 (1) FAC 499 and Keshubhai Ranabhai Tukadiya Vs. State of Gujarat 2009 (1) FAC 565.
8. 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 toned 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.
9. 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 no purpose shall be served by continuation of trial of present case. It shall be an exercise in futility. Accordingly PE stands closed. SA is dispensed with and the accused stands acquitted of the charges in the present case.
10. I order accordingly.
Announced in the open Court (Gaurav Rao)
on 07th August, 2014 ACMMII/ New Delhi
CC No. 171/11
DA Vs. Om Parkash yadav Page 5 of 5