Delhi District Court
Fi vs . Mahesh Chand Page 1 Of 17 on 29 April, 2013
IN THE COURT OF SHRI BALWANT RAI BANSAL
ADDITIONAL CHIEF METROPOLITAN MAGISTRATEII,
PATIALA HOUSE COURTS, NEW DELHI
C.C. No. 49/04
Food Inspector
Department of PFA
Govt. of NCT of Delhi
A20, Lawrence Road Industrial Area,
Delhi 110035
........ Complainant
Versus
Sh. Mahesh Chand
S/o Sh. Bhagwat Singh
Nandan Dairy
P26/A4, Dilshad Garden, Delhi
........ VendorcumProprietor
COMPLAINT U/S 16 OF THE PREVENTION OF FOOD
ADULTERATION ACT, 1954
Serial number of the case : 49/04
Date of the commission of the offence : 05.08.2003
Date of filing of the complaint : 25.02.2004
Name of the Complainant, if any : Smt. Usha Kiran, Food Inspector
CC No.49/04
FI Vs. Mahesh Chand Page 1 of 17
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 : 09.04.2013
Judgment announced on : 29.04.2013
J U D G M E N T
1. The present complaint has been filed on 25.02.2004 by the Delhi Administration through FI Smt. Usha Kiran against the accused Mahesh Chand. It is stated in the complaint that on 05.08.2003 at about 6.30 PM, FI Smt. Usha Kiran purchased a sample of Full Cream Milk, a food article for analysis from accused Mahesh Chand S/o Sh. Bhagwat Singh. The sample consisted of approximately 1500 ml of Full Cream Milk taken from a deep freezer, bearing a label of Full Cream Milk. The sample was taken under the supervision/direction of Sh. Anil Banka, SDM/LHA after proper mixing the Full Cream Milk with the help of clean and dry plunger by rotating it in all possible directions. Thereafter, the sample was divided into three equal parts by putting it in three clean and dry bottles and 40 drops of formalin were added in each of the three bottles and thereafter each bottle containing the sample was separately packed, fastened and CC No.49/04 FI Vs. Mahesh Chand Page 2 of 17 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 Smt. Usha Kiran were signed by accused Mahesh Chand and the other witness namely Sh. Manohar Lal, FA. It is stated that before starting sample proceedings,, efforts were made to get the public witnesses to joined the proceedings, but when none came forward, Sh. Manohar Lal, FA joined as witness.
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 analyzed the sample and opined that "the sample does not conform to standard because Milk Fat and Milk Solids Not Fat is less than the prescribed minimum limit of 6% and 9% respectively".
3. It is further stated that accused Mahesh Chand S/o Sh. Bhagwat Singh was the Vendor Cum Proprietor of Nandan Dairy at the time of sampling and as such he is in charge and responsible for day to day conduct of business of the said firm. Thereafter, the entire case file was sent to the Director, PFA who accorded the requisite consent U/s 20 of the CC No.49/04 FI Vs. Mahesh Chand Page 3 of 17 Act and consequent thereto the present complaint was filed for violation of provisions of section 2 (ia) (a) (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 was summoned vide order dated 25.02.2004. The accused appeared and 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, Pune for analysis. Director, CFL on analysing the second counterpart of the sample in question opined vide his Certificate dated 26.04.2004 that "sample does not conform to the standards of Full Cream Milk as per PFA Rules 1955".
5. The prosecution examined Sh. Anil Banka, SDM as PW1 and FI Smt. Usha Kiran towards precharge evidence and pre charge evidence was closed vide order dated 26.11.2008.
6. Charge 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 vide order dated 06.02.2009 to which he pleaded not guilty and claimed trial.
7. Thereafter, in post charge evidence prosecution examined three CC No.49/04 FI Vs. Mahesh Chand Page 4 of 17 witnesses including Sh. Anil Banka, SDM/LHA as PW1, Smt. Usha Kiran, FI as PW2 and Sh. Manohar Lal, FA as PW3 and PE was closed vide order dated 15.02.2011.
8. Statement of accused U/s 313 Cr.P.C. recorded separately vide order dated 23.08.2011 wherein accused claimed himself to be innocent and opted for to lead evidence in his defence. However, the accused did not lead any evidence in his defence and DE was closed vide order dated 20.10.2011.
9. I have heard the Ld. Counsel for the parties and perused the record carefully.
10. Ld. Counsel for accused has argued that there is variation in the reports of Public Analyst (PA) and Central Food Laboratory in respect of 'milk fat' and 'milk solids not fat' content of the sample which shows that sample commodity was not of a representative character and was not properly homogenized before lifting it. He further argued that there is also violation of Rule 14 of PFA Rules as Food Inspector has not used the clean and dry bottles while conducting the sample proceedings. He has further argued that the 'Gerber' method which has been applied by the Public Analyst to detect the fat content of the sample commodity is not a sure test. Ld. Counsel for accused has further vehemently argued that complaint has CC No.49/04 FI Vs. Mahesh Chand Page 5 of 17 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), Pune after more than 9 months from the date of lifting the sample, while the shelf life of the milk product is not more than 4 months and, therefore, due to delay in filing the complaint and analysis of the sample, the quality of the sample has deteriorated which is evident from vide variations in the report of Public Analyst and Director, Central Food Laboratory. He has further argued that accused is 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).
11. On the other hand, Ld. SPP for complainant has argued that sample was taken into the clean and dry bottles and there is compliance of Rule 14 of PFA Rules 1955. He further argued that Gerber method to detect the fat percentage in the sample is a valid test. He further argued that as per report of Director, CFL, the 'milk fat' and 'milk solids not fat' were not as per the prescribed standards 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 Public Analyst and Central Food Laboratory.
CC No.49/04 FI Vs. Mahesh Chand Page 6 of 17
12. All the witnesses examined by the prosecution have deposed more or less as per the averments made in the complaint.
13. PW1 Sh. Anil Banka under whose supervisions/directions, the sample proceedings were conducted has deposed in his examinationin chief that on 05.08.2003 FI Usha Kiran and FA Manohar Lal under his supervision visited the premises of M/s Nandan Dairy, P26/A4, Dilshad Garden, Delhi where accused was found conducting the business of said dairy having stored food articles including Full Cream Milk for sale for human consumption which was contained open drum with label declaration as Full Cream Milk. He has further deposed that FI introduced herself and intended to purchase sample of said milk for analysis to which accused agreed. He further deposed that FI also made efforts to join some public witness, but non came forward and on her request, FA Manohar Lal joined the sample proceedings. He further deposed that at about 6.30 PM, FI purchased 1500 ml of milk from accused on payment of Rs. 27/ vide vendor's receipt Ex. PW1/A. He further deposed that sample was taken after homogenization the milk with the help of a clean and dry plunger and the Food Inspector divided the same into three equal parts by putting them in three clean and dry glass bottles and 40 drops of formalin were added to each of the sample bottle. He further deposed that FI prepared notice CC No.49/04 FI Vs. Mahesh Chand Page 7 of 17 Ex. PW 1/B and Panchnama Ex. PW1/C and a copy of notice was also received by the accused and and all the aforesaid documents were read over and explained to the accused who after understanding the same signed the same. He further deposed that on 06.08.2003 FI deposited in his office 2 sealed counterparts of the sample in a sealed packet vide receipt Ex. PW1/D under intimation that one counter part has already been deposited with PA for analysis and PA report is Ex. PW 1/E according to which sample was adulterated because milk fat and milk solids were less than the prescribed minimum limit of 6% and 9% respectively.
14. PW1 has also placed on record the reply sent by STO as Ex. PW 1/F, sanction given by the Director, PFA for launching prosecution against the accused as Ex. PW1/G, complaint as Ex. PW 1/H , intimation letter sent to the accused along with PA report as Ex. PW1/J.
15. PW2 is FI Smt. Usha Kiran who purchased the sample and conducted the sample proceedings. She has also deposed on the similar lines as deposed by PW1 in his examinationinchief and has also proved on record the depositing of one counterpart of the sample with PA in intact condition on 06.08.2003 as Ex. PW 2/A, letter sent by her to DHO, MCD. Shahadara, North Zone as Ex. PW2/C and photocopy of postal registration receipt as Ex. PW2/D by which the intimation letter Ex. PW1/J along with CC No.49/04 FI Vs. Mahesh Chand Page 8 of 17 PA report was sent to the accused.
16. PW3 is Sh. Manohar Lal, Field Assistant who was made a witness at the time of conducting the sample proceedings by PW2 FI Smt. Usha Kiran. He has corroborated the version of PW1 and PW2 in his examinationinchief.
17. In his crossexamination PW1 denied the suggestion that a representative sample was not taken in this case or that the milk was not mixed properly before taking the sample. He admitted that sample bottles and the plunger and the dropper were not made clean and dry at the spot as they were already clean and dry.
18. PW2 in her crossexamination before charge admitted that milk is a perishable item. In her crossexamination after charge, PW2 denied the suggestion that sample was not properly mixed. She further denied the suggestion sample was not representative and that is why divergent reports have been given by Analysts. She further denied the suggestion that the complaint was filed late deliberately so as to deprive the accused from obtaining the correct analysis from the Director, CFL. She stated that she cannot say that after six months, formalin mixed in a milk loses its strength and sample does not remain fit for analysis. CC No.49/04 FI Vs. Mahesh Chand Page 9 of 17
19. PW3 also denied the suggestion in his crossexamination that jug and plunger were not made clean and dry at the spot. He stated that same were already clean and dry.
20. In his statement U/s 313 Cr.P.C., the accused has not disputed the fact that on 05.08.2003 at about 6.30 PM, FI Smt. Usha Kiran along with FA Sh. Manohar Lal under the supervision/directions of Sh. SDM/LHA Sh. Anil Banka visited his premises at M/s Nandan Dairy, P26/A4, Dilshad Garden, Delhi where he was found conducting the business of Full Cream Milk and further that the FI Smt. Usha Kiran lifted the sample of Full Cream Milk for analysis. The sample of Full Cream Milk was sent to the Public Analyst (PA) for analysis who after analysing the sample opined vide his report dated 21.08.2003 that sample does not conform to standard because 'milk fat' and 'milk solid not fat' are less than the prescribed minimum limit of 6.0% and 9.0% respectively. The report of Public Analyst has been exhibited and proved as Ex. PW1/E on the basis of which present complaint has been launched against the accused.
21. The accused on appearing 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), Pune for analyzing the sample and the report thereof in the form of Certificate of the Director, CC No.49/04 FI Vs. Mahesh Chand Page 10 of 17 CFL, Pune dated 26.04.2004 was received. Perusal of same shows that sample does not conform to the standards of full cream milk as per PFA Rules 1955.
22. The defence of the accused from the aforesaid cross examination of the PWs and in his statement U/s 313 Cr.P.C. appears to be that sample commodity was not of a representative character as it was not properly homogenized and, therefore, there is variations in the report of two Analysts. It is further defence of the accused that there is delay in filing the complaint and due to delay, correct analysis from Director, Central Food Laboratory (CFL) could not be obtained. The accused has also taken a plea in his statement U/s 313 Cr.P.C. that the sample bottles and the plunger and dropper were not made clean and dry by the Food Inspector or any other person present at the spot.
23. Ld. Counsel for accused has also argued that there is no compliance of Rule 14 of PFA Rules 1955 which provides the manner of sending sample for analysis. As per Rule 14, samples of food for the purpose of analysis shall be taken in clean dry bottles or jars or in other suitable containers which shall be closed sufficiently tight to prevent leakage, evaporation or in the case of dry substance, entrance of moisture and shall be carefully sealed.
CC No.49/04 FI Vs. Mahesh Chand Page 11 of 17
24. It is relevant to refer the evidence of PWs in this regard. The PWs in their evidence have categorically stated that sample commodity was divided into three equal parts by putting the same in three clean and dry bottles. There is nothing in the crossexamination of PWs to shake their testimony. Though, PW1 admitted in his crossexamination that sample bottles and the plunger and the dropper were not made clean and dry at the spot, but he categorically stated that same were already clean and dry. PW2 also categorically stated in her crossexamination that sample bottles were already dry and clean and the same were not made again dry and clean at the spot. Similarly, a suggestion was put to PW3 in his cross examination that jug and plunger were not clean and dry at the spot which was denied by him and he stated that same were already clean and dry.
25. From the aforesaid testimony of PWs, it cannot be said that the prosecution has not complied the provisions of Rule 14 of PFA Rules 1955 as contended by the Ld. Counsel for accused.
26. In the present case, though, as per report of Public Analyst (PA) and Director, Central Food Laboratory (CFL), the sample of Full Cream Milk lifted from the accused failed as 'milk fat' and 'milk solids not fat' of the sample were found to be less than the prescribed minimum limit, but a perusal of report of both the analysts shows that there are variations in aforesaid fat CC No.49/04 FI Vs. Mahesh Chand Page 12 of 17 content of the sample.
27. As per report of Public Analyst (PA) Ex. PW1/E, the 'milk fat' of the sample has been shown to be 3.5% as against the minimum prescribed requirement of 6.0%, while in the report of Director, Central Food Laboratory, 'milk fat' was found to be 5.58% as against the minimum prescribed limit of 6.0%. Similarly, 'milk solids not fat' has been shown to be 7.51% as against the minimum prescribed requirement of 9.0% as per PA report Ex. PW/E, while in the report of Director CFL, the 'milk solids not fat' was found to be 6.85% as against the minimum prescribed limit of 9.0%.
28. The aforesaid variations in the reports of both the Analysts appears to be on higher side and it goes to show that the sample was not properly homogenized and hence it cannot be said to be representative sample. In Kanshi Nath Vs. State 2005(2) FAC 219 even while certain other contentions of the accused were rejected, the contention concerning the samples sent to the two test labs not being representative was accepted and the accused were acquitted. In this judgment, the Hon'ble High Court of Delhi after referring to the judgment of Calcutta Municipal Corporation Vs. Pawan Kumar Saraf 1999(1) FAC 1 and Municipal Corporation of Delhi Vs. Bishan Sarup 1972 FAC 273 has observed CC No.49/04 FI Vs. Mahesh Chand Page 13 of 17 that, " On the facts of the present case, it can be said that the variation is beyond the acceptable range and would clearly imply that the samples were not representative. In view of this finding and in the background of the law which is well settled, no conviction can be sustained".
29. Similarly, 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.
30. 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 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.
31. It is also evident from the report of Public Analyst (PA) CC No.49/04 FI Vs. Mahesh Chand Page 14 of 17 Ex. PW1/E that 'Gerber' method has been applied by the Public Analyst to detect the milk fat content of the sample. In Corporation of the City of Nagpur Vs. Neetam Manikrao Kature and Others, the Hon'ble Supreme Court has held that, " Gurber's method of analysis of the quality of food substance was not of assured quality and accuracy and as 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". This view of acquittal of accused by the Hon'ble High Court of Delhi was upheld by the Hon'ble Supreme Court.
32. It is also to be noted that there is delay in filing the complaint. In the present case, admittedly the sample of Full Cream Milk was lifted by FI Smt. Usha Kiran on 05.08.2003 and the present complaint has been filed on 25.02.2004 on the basis of PA's report dated 21.08.2003 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 26.04.2004 i.e. after about about more than 9 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 CC No.49/04 FI Vs. Mahesh Chand Page 15 of 17 complaint.
33. 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 found adulterated by the Public Analyst.
34. In the present case, admittedly the sample was got analyzed by Director, CFL on 26.04.2004 i.e. after about more than 9 months from the date of lifting the sample on 05.08.2003. No evidence has been led by the prosecution that the sample of '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 'Full Cream Milk' remained fit for analysis after 9 months from the date of lifting the same. PW2 Smt. Usha Kiran who lifted the sample has admitted in her cross examination before charge that milk is a perishable item. She even could not deny the fact that after six months, formalin mixed in a milk loses its strength and sample does not remain fit for analysis. Therefore, there appears to be substance in the contention of the Ld. Counsel for accused CC No.49/04 FI Vs. Mahesh Chand Page 16 of 17 that due to delay in analzing the sample, the quality of the sample might have been deteriorated and, therefore, proper analysis of the sample could not be obtained from the Director, Central Food Laboratory. For this reason also, the accused is liable to be given benefit of doubt.
35. In view of above reasons and discussions, I am of the considered opinion that the prosecution has failed to prove its case against the accused beyond reasonable doubt. Benefit of which must go in favour of accused. Accordingly, benefit of doubt is given to the accused and the accused is acquitted of the charges leveled against him.
File be consigned to Record Room.
Announced in the open Court (Balwant Rai Bansal)
on 29th April, 2013 ACMMII/ PHC/ New Delhi
CC No.49/04
FI Vs. Mahesh Chand Page 17 of 17
CC No. 49/04
DA Vs. Mahesh Chand
29.04.2013
Present: Sh. Masood Ahmad, Ld. SPP for complainant.
Accused with counsel Sh. Shailender Billore.
Vide my separate Judgment of even date dictated and announced in the open court, the accused stands acquitted of the charges leveled against him. Previous Bail Bond / Surety Bond stands cancelled. Surety stands discharged. Endorsement on the documents of the previous surety, if any, be cancelled.
Accused is 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 is accepted.
File be consigned to Record Room.
(Balwant Rai Bansal) ACMMII/PHC/ND/29.04.2013 CC No.49/04 FI Vs. Mahesh Chand Page 18 of 17