Delhi District Court
17. In A Judgment Titled As Kanshi Nath vs . State, 2005(2) Fac 219, on 13 August, 2010
IN THE COURT OF SHRI SANJEEV KUMAR MALHOTRA,
ADDITIONAL CHIEF METROPOLITAN MAGISTRATE-II,
NEWDELHI
C.C. N0. 32/96
Local Health Authority
Department of PFA
Govt of NCT of Delhi
Versus
1. Kirshan Kumar Sharma
S/o Sh. Narayan Lal Sharma
At Pavement opposite D-104,
Shakurpur, J.J. Colony,
Near Sarasvati Vihar Police Station,
New Delhi
R/o D-104, Shakurpur, J.J. Colony,
Near Sarasvati Vihar Police Station,
New Delhi
2. Bishnu Kumar S/o Sh. Manohar Lal Sharma
M/s Milan Dairy, Garh Road, Siyana,
Distt. Bullandshahar, U.P.
3.M/s Milan Dairy, Garh Road, Siyana,
Distt. Bullandshahar, U.P.
JUDGMENT
Date of Institution : 2.4.96 Date of reserving judgment : 13.08.10 Dated of Pronouncement : 13.08.10 U/S: 2 (ia) (a) (m) punishable under C.C. N0. 32/96 1 Section 16(1) read with Section 7 of the PFA Act The final order : Acquitted/Convicted Brief statement of the reasons for such decision-
1. The present complaint is filed by the Delhi Administration through LHA M.R. Grover, against the above said accused persons, for prosecution of the offence under section 7/16 of the Prevention of Food Adulteration Act, 1954 (hereinafter referred to as the PFA Act).
2. The complainant has submitted that on 13.7.95 at about 6:30 a.m. Food Inspector B.P. Saroha purchased a sample of 'Pasteurized Double Toned Milk' a food article, for analysis from Kirshan Kumar Sharma S/o Sh. Narayan Lal Sharma at Pavement opposite D-104, Shakurpur, J.J. Colony, Near Sarasvati Vihar Police Station, New Delhi, where the said food article was found stored for sale and Sh. Kirshan Kumar Sharma was found conducting the business of the food article in question. The sample consisted of one liter of Pasteurized Double Toned Milk taken as originally sealed polythene packet bearing label declaration. The sample was taken after being properly homogenized with the help of a clean and dry Jug and a clean and dry steel spoon. The Food Inspector divided the sample then and there into three equal parts by putting them in three separate clean and dry bottles. 27 drops of formalin were added in each of the three bottles. Each bottle containing the sample was separately packed, fastened, marked and sealed according to the PFA Act and C.C. N0. 32/96 2 Rules. Vendor's signatures were obtained on the LHA slip and the wrapper of the sample bottles. Notice was given to accused Kirshan Kumar Sharma and the price of the sample was also given to him. Panchnama too was prepared at the spot. All the documents prepared by FI B.P. Saroha were signed by Sh. Kirshan Kumar Sharma and the other witness Sh. Shyam Lal, F.I. Before starting the sample proceedings efforts were made to join the pubic witnesses but none came forward. The sample was taken under the supervision of LHA. One counter part of the sample was sent to the Public Analyst in intact condition and two counter parts were deposited with the LHA in intact condition. The Public Analyst analysed the sample on 24.07.95 and opined that the sample does not conform to standards because Milk fat and Milk solids not fat are less than the prescribed minimum limit of 1.5% & 9.0% respectively when judged on the standard of Double Toned Milk.
3. After the conclusion of the investigation, the entire case file including the statutory documents and PA's report and the report of the FI was sent to the Director (PFA) Delhi Administration, Government of NCT of Delhi who accorded consent under Section 20 of PFA Act for institution of the case and authorised Sh. M.R. Grover, LHA to file the present complaint.
4. The accused are alleged to have violated the provisions of Section 2 (ia) (a) (m) punishable U/s 16(1) read with Section 7 of the PFA Act C.C. N0. 32/96 3 and Rules.
5. Summons of the case were served upon the accused persons and pursuant thereto they had appeared before the court. On 22.4.96, accused No. 2 Bishnu Kumar Sharma moved an application to get the second counterpart of the sample analysed from the Director, CFL while exercising his right under Section 13(2) of the PFA Act and second counterparts of the sample was examined by the Director, CFL, Mysore vide Certificate No. 141/PFA/96 dated 17.06.96 and opined that the sample does not conform to the standards laid down for double toned milk under the PFA Act and Rules as (1) Milk fat content falls below the minimum requirement of 1.5% &
(b) Milk solids not fat content falls below the minimum requirement of 9.0%.
6. Notice under Section 251 Cr.P.C for contravention of provision of Section 2 (ia) (a) (m) punishable under Section 16(1) read with Section 7 of the PFA Act was framed against the accused persons separately on 7.10.96 to which they pleaded not guilty.
7. In support of its case, complainant examined PW-1 Sh. M.R. Grover, Retd. LHA; PW-2 F.I. B.P. Saroha & PW-3 F.I. Shyam Lal.
8. Statements of accused persons were recorded separately under C.C. N0. 32/96 4 Section 313 Cr.P.C on 21.01.10 wherein they controverted and rebutted the entire evidence against them while submitting that they are innocent. Accused persons preferred not to lead evidence in their defence. Thereafter, additional statement of accused under Section 313 Cr.P.C were recorded separately on 21.05.10 wherein they controverted and rebutted the entire evidence against them while submitting that they are innocent and again preferred not to lead evidence in their defence.
9. As per section 2(ia)(a) of PFA Act, an article of food shall be deemed to be adulterated if the article sold by a vendor is not of the nature, substance or quality demanded by the purchaser and is to his prejudice, or is not of the nature substance or quality which it purports or is represented to be.
10. As per section 2 (ia)(m) of PFA Act, an article of food is said to be adulterated if the quality or purity of the article falls below the prescribed standard or its constituents are present in quantities not within the prescribed limits of variability but which does not render it injurious to health.
11.It is true that the mensrea in the ordinary or usual sense of this term is not required for proving an offence defined by Section 7 of the Prevention of Food Adulteration Act, 1954. It is enough if an article of C.C. N0. 32/96 5 adulterated food is either manufactured for sale or stored or sold or distributed in contravention of any provision of the Act or of any rule made thereunder. Nevertheless, the prosecution has to prove beyond reasonable doubt that what was stored or sold was food.
ARGUMENTS AND FINDINGS.
12.I have heard both the sides at length and have given my conscious thought and prolonged consideration to the material on record, relevant provisions of law and the precedents on the point. The SPP has argued that as the case is well proved and the accused are liable to be convicted. On the other hand, Ld. Defence counsel for accused No.1 argued that the accused No.1 is entitled for benefit of warranty of Bill Ex. PW1/G under Section 19 (2) of PFA Act. Ld. Defence counsel for accused No.2 & 3 argued that the sample commodity was not properly mixed and a representative sample was not taken.
Benefit of Warranty u/S 19 (2) of PFA Act.
13.Section 19 (2) of PFA Act provides that a vendor shall not be deemed to have committed an offence pertaining to the sale of any adulterated of misbranded article of food, if he proves that he purchased the article of food from any manufacturer, distributor or dealer with a written warranty in the prescribed form and the article of food while in his possession was properly C.C. N0. 32/96 6 stored and that he sold it in the same state as he purchased.
14.Ld. Counsel for accused No. 1 vehemently argued that accused No.1 is entitled for benefit of warranty i.e Bill Ex.PW1/G issued by accused No.3 M/s Milan Dairy. On the other hand, Ld. counsel for accused No.2 & 3 argued that vendor made endorsement at the spot that he purchased the sample commodity from Gopaljee Milk Foods and Bill was not given. Ld. Defence counsel further argued that sale of one liter double toned milk in the polythene packets has not been shown in the Bill Ex. PW1/G. PW-2 F.I. B.P. Saroha confirmed in his cross- examination that vendor made an endorsement on Notice in form VI that he purchased the sample packets from Gopaljee Milk Foods , which had not issued any bill. He further confirmed that on the same day after several hours, vendor came at his office with the Bill of Milan Dairy and he advised him to deliver the same to Dairy Dispatch Clerk , and made statement volunteered that the owners of Gopaljee Milk Foods and Milan Dairy are same. Admittedly, M/s Milan Dairy , Garh Road, Siyana is prosecuted as accused No.3 in the complaint. It is a matter of record that on 13.7.95, accused No.1 gave a letter Ex. PW1/H addressing to Food Inspector that he is attaching the Bill of which the sample was taken by him on that day morning and the person who supplied the milk have their office in front of Pandav Nagar ,Bus Depot, and famous in the name of Milan Dairy. He further mentioned that as per his information, Sh. Gopal Dixit is the owner, pursuant to which Food Inspector wrote a letter Ex. PW2/D to M/s Milan Dairy to confirm the sale of pasteurised double toned milk of which sample was lifted by C.C. N0. 32/96 7 him from Kirshan Kumar Sharma vide cash/credit memo 313 dated 13.7.95 i.e Ex.PW1/G, and in reply to the above said letter of Food Inspector, M/s Milan Dairy through its partner Sh. Gopal Dixit gave reply Ex.PW2/E to the Food Inspector and confirmed the sale to Sh. K.K. Sharma vide Cash Memo No. 313 dated 13.7.95 i.e Ex.PW1/G, and also provided the photocopy of partnership-deed and informed that Sh. Bishnu Kumar is their Nominee. M/s Milan Dairy vide their letter Ex.PW2/I further confirmed that indeed they had supplied double toned milk directly to Sh. K.K. Sharma. When the supply of sample commodity to vendor is admitted by the accused No.3 company i.e M/s Milan Dairy vide Bill Ex.PW1/G then it has no relevance that in the Bill , it is not mentioned that the milk was supplied in sealed polythene packet of one liter. In view of replies i.e Ex. PW2/E and Ex.PW2/I as given by the accused No.3 during investigation to the Food Inspector whereby they confirmed the sale of the sample commodity through Bill No. 313 dated 13.7.95 to the vendor, I am of the considered opinion that the accused No.1 is entitled for benefit of warranty of Bill Ex. PW1/G under Section 19 (2) of PFA Act.
Homogenizing of the sample :-
15.Ld. Counsel for the accused No.2 & 3 argued that the milk was not properly homogenized and the Food Inspector had not mentioned on Ex. PW1/B which was prepared at the spot that how many times he rotated the spoon to mix the milk. On the other hand, Ld. SPP for the complainant argued that the milk was properly homogenized in a clean C.C. N0. 32/96 8 and dry jug with the help of clean and dry spoon as also mentioned in the complaint and documents prepared at the spot. PW-2 F.I. B.P. Saroha, who lifted the sample, deposed that he had cut one corner of the polythene packet and the milk was transferred into a clean and dry steel jug and the milk was properly homogenized with the help of a clean and dry spoon in the said jug and before cutting the corner of the polythene packet, it was brought at room temperature. His testimony to this effect remains unrebutted, even a suggestion was not given by the Ld. Defence counsel for accused persons that the milk was not properly mixed or procedure of mixing the milk was wrong. Food Inspector mentioned on the Ex. PW1/B which was prepared at the spot that the sample was taken after properly homogenizing with the help of clean and dry jug in a clean and dry spoon. There is no reason to disbelieve the testimony of PW-2 F.I. B.P. Saroha, who lifted the sample.
Therefore, I am of the considered opinion that the sample of pasteurised double toned milk was taken by the Food Inspector B.P. Saroha after proper homogenization.
Whether sample is representative:
16. Ld. SPP for the complainant has submitted that the sample is representative but the Ld. Counsel for the accused No. 2 & 3 has submitted that the sample was not representative sample.
17. In a judgment titled as Kanshi Nath Vs. State, 2005(2) FAC 219, C.C. N0. 32/96 9 Delhi High Court , it was held by Hon'ble Mr. Justice Badar Durrez Ahmed, as under;-
''............To this extent, the argument raised by Mr. Sharma that once the certificate of the Director, CFL is obtained, then that is final and conclusive and the Public Analyst's report cannot be looked into at all for any purpose whatsoever, is not quite tenable. If the variation in the two reports is substantial enough, then the Public Analyst's report can certainly be looked into to establish this variation so as to support the contention of the petitioner that the sample was not representative. As indicated above, the Director, CFL who was examined as CW-1 in cross-examination, has clearly stated that if the content of common salt as quantified by the two experts would have a variation of more than- Y.3% then the samples would not be representative. This is an opinion of an expert and one has to go by it. In the facts of the present case, we find that the variation, as indicated above, is more than-Y.3%. Therefore, 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. ''
18.In the present case, as per report of the Public Analyst dated 24.07.95 wherein the opinion given by the Public Analyst, Delhi was that the sample does not conform to the standard and the result of the Public Analyst was as follows:-
C.C. N0. 32/96 10 Milk fat - 1.1%
Milk solids not fat - 7.9%
19. The second counterpart of the same sample was analysed by the Director, Central Food Laboratory, Mysore dated 17.6.96, the result of analysis of second counterpart of the sample commodity is as follows:-
Milk fat - 0.8%
Milk solids not fat - 8.2%
20. The main contention of the Ld. SPP for the complainant is that the sample commodity was found fit for analysis by the Director, CFL and the difference of analysis between two reports is not more than 0.3% which is an acceptable range, due to analytic error, as also held in Kanshi Nath versus State (supra). Ld. SPP for the complainant further argued that had it been the case that the sample was not representative or was not fit for analysis, there must be variation more than 0.3% between two reports.
21. Reverting back to the facts of the present case, Public Analyst and the Director, CFL , both found the sample commodity non-conforming to standard as milk fat and milk solids not fat were found less than the C.C. N0. 32/96 11 prescribed minimum limit, and the variation between two reports in respect of counterpart of same sample is also within acceptable range of 0.3% as held in Kanshi Nath versus State (supra). Therefore, I am of the considered view that the sample was representative.
22. In view of my above reasons and discussions, I am of the considered opinion that the accused No.1 Kirshan Kumar Sharma is entitled for benefit of warranty of Bill Ex. PW1/G issued by accused No. 3. This fact is also not disputed that Sh. Bishnu Kumar was Nominee of accused No.3 Company under Section 17 of PFA Act and was incharge and responsible for day to day affairs of accused No.3 company. In result, accused No.1 is given benefit of warranty of Bill Ex.PW1/G under Section 19 (2) of PFA Act and stands acquitted of the charge. Accused No. 2 & 3 are held guilty being Nominee and Supplier of sample commodity for violation of sub-clause (a) & (m) punishable under Section 16 (1) read with Section 7 of PFA Act and stand convicted thereunder.
Announced in the open court. ( S.K. MALHOTRA )
Dated: 13.08.2010 ACMM-II/NEW DELHI.
C.C. N0. 32/96 12