Delhi District Court
Also At vs The State on 22 August, 2012
-1-
IN THE COURT OF MS. NEENA BANSAL KRISHNA :
ADDITIONAL SESSIONS JUDGE-01 : NEW DELHI
In re :
CA No. 60/12
Dinesh Kumar,
S/o Sh. Ram Rattan,
M/s Rattan Dairy,
B-13, Amar Colony, Nangloi,
Delhi-110041
Also at :
R/o First Floor B-13,
Amar Colony Nangloi,
Delhi-10041 ..... Petitioner
versus
The State
(Delhi Administration)
Department of PFA,
A-20, Lawrence Road Indl. Area,
Delhi. ..... Respondent
Date of institution of the appeal : 27.07.2012
Date of reserving judgment/order : 14.08.2012
Date of judgment / order : 22.08.2012
JUDGMENT :
1 This appeal u/s 374 Code of Criminal Procedure has been preferred against the judgment dated 25.06.2012 and order on sentence dated 16.07.2012 passed by Ld. ACMM-II, New Delhi, in complaint case no. 155/2006, vide which the appellant has been convicted for offences punishable u/s 16 r/w Section 7 of Prevention of Food Adulteration Act, 1954 (hereinafter referred to as "the Act") and sentenced the appellant to undergo rigorous imprisonment for six months and CA No. 60/12 Page No. 1 of 6 -2- to pay a fine of Rs.10,000/-, in default to undergo further simple imprisonment for 15 days.
2 The facts in brief as stated in the complaint, are that on 24.04.2006 at about 05.00 p.m. Food Inspector Arun Kumar under the supervision of Sh. S. C. Bhardwaj, the then SDM / LHA had purchased a sample 1500 ml of "Toned Milk"
from an open tub bearing label declaration as "Toned Milk"
from the accused Dinesh Kumar of M/s Rattan Dairy, B-13, Amar Colony, Nangloi, Delhi, where he was found conducting the business of the said food article which was stored there for sale. The sample was homogenized with the help of clean and dry measure of four litre by pouring and re-pouring the same in the sample commodity several times. Thereafter, Food Inspector divided the sample into three equal parts by putting it into three separate clean and dry glass bottles. 40 drops of formalin were added in each sample bottle and thereafter, they were separately packed, fastened and sealed as per the requirements of the Act. One sample was sent to Public Analyst, who gave his report that the sample did not conform to standards because milk fat & milk solids not fat were less than the prescribed minimum limit of 3.0% and 8.5%.
3 After obtaining the requisite consent u/s 20 of the Act from Director, PFA, the present complaint was filed in the Court.
4 The accused was summoned vide order dated 04.07.2006. Accused Dinesh Kumar did not exercise the option CA No. 60/12 Page No. 2 of 6 -3- u/s 13 (2) of the Act.
5 Notice u/s 251 Cr.PC for the violation of the Provisions of Section 2 (ia) (a) & (m) of PFA Act, 1954, punishable u/s 16 (1) r/w Sec. 7 of PFA Act was served upon the accused, to which he pleaded not guilty and claimed trial. 6 The prosecution in support of its case examined three witnesses namely PW1 Sh. S. C. Bhardwaj, the then SDM/LHA, PW2 Sh. Arun Kumar Gupta, Food Inspector and PW3 Sh. Om Prakash, Field Assistant.
7 Statement of the accused was recorded u/s 313 Cr.PC in which he pleaded his innocence. No defence evidence was led.
8 The Ld. MM on the basis of the evidence concluded that as per the Public Analyst report the sample was deficit in respect of "milk fat", "msnf" and "total solids" and thereby convicted and sentenced the accused.
9 Aggrieved by the said judgment, present appeal has been filed.
10 It is argued on behalf of the appellant that it is the Gerber Method which has been used by the Public Analyst to ascertain the Fat content had been held by the Supreme Court in the case of "Corporation of Nagpur v. Neetam Manikrao Kature & Ors., 1998 SCC (Cri) 564" to be not a sure test and, thus, findings arrived at on the basis of this Test cannot be relied upon. It is also submitted that the procedure adopted for taking the sample was highly defective as no plunger was used for homogenization of the sample.
CA No. 60/12 Page No. 3 of 6 -4-Furthermore, there is no postal receipt on record in proof of service of Public Analyst report which was in fact never served upon the appellant because of which he was unable to exercise his right u/s 13 (2) and his right under the Act has been seriously prejudiced. It is, thus, submitted that the appellant be acquitted.
11 Ld. Special PP on behalf of the Department has argued that not only Gerber Method but also other tests had been performed to determine the adulteration in the sample of "Toned Milk". The Ld. ACMM has rightly convicted the accused and the present appeal is liable to be dismissed. 12 I have heard the arguments and have perused the record. My observations are as under : -
13 At the outset from the perusal of the Public Analyst it is evident that the "milk fat" has been determined by following the Gerber Method and the "msnf" has been worked out as difference from total solids and no independent test has been followed for determination of "msnf". 14 It has been held by the Supreme Court in the case of "Neetam Manikrao Kature's case (supra)" that Gerber'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. 15 The Public Analyst, however, followed Gerber's Method and his reports based on such test is not reliable. The Manual of Methods of Analysis of Foods issued by Directorate General of Health Services, Ministry of Health and Family CA No. 60/12 Page No. 4 of 6 -5- Welfare, Government of India, no doubt prescribes Gerber Method for determination of fat in "milk" but the same Manual also prescribes two other methods namely Roese-Gottlieb Method and Werner Schmidt Method for the said determination. Once the Supreme Court has accepted the uncertainty of Gerber Method, no explanation is forthcoming as to why this method is being followed instead of two other methods. The report of the Public Analyst, which is based on the said test can, therefore, not be held reliable. 16 In this context it would also be pertinent to refer to the process by which the sample had been lifted. As per PW1 the "Toned Milk" was lying in an open tub and the same was mixed with the help of four litre measure by pouring and re- pouring the milk several times and the milk was also mixed by rotating clockwise and anti-clockwise. PW1 has further explained in his cross-examination that the drum was having a height of 2½ ft and diameter of 2½ ft. The measure was made of a four litre of Vanaspati Dabba.
17 In the case of "Ishwar Singh v. State of Haryana, 1990 (I) FAC 151", as well the "milk" sample was taken from a drum having a capacity of 40 litres. There too the "milk" had been stirred with the help of a plunger. It was observed that it is a matter of common knowledge that cream or fat contents in the "milk" being light in weight accumulates towards top of the container, if huge "milk" like 40 litres is contained therein. The testimony of Food Inspector that the content had been stirred in a drum with the help of "milk"
CA No. 60/12 Page No. 5 of 6 -6-measure is of no consequence for if the "milk" is taken out from the drum with the help of "milk" measure and repoured in order to stir it, it is not likely that the entire contents of the drum upto the depth of its bottom will be stirred in such process. On the other hand, it will amount to blowing the milk which in turn would result in accumulation of cream or fatty solids towards the top of the container and this would not give the true contents of the milk to have happened in cases where "milk fat" is found to be more than the minimum prescribed standards while "msnf" is found to be below the prescribed standards.
18 It is, therefore, shown that as per the evidence of prosecution witnesses that the procedure for taking the sample was highly defective and was not the proper procedure for homogenization of the milk before taking the sample. The possibility of the sample having found to be not in conformity with the standards on account of faulty sampling can also be not ruled out.
19 In view of the above discussion, the appeal is hereby allowed. Conviction is set aside and the appellant is acquitted. Bail-bond and surety bond stand discharged. 20 Trial Court Record be sent back alongwith the copy of this order.
21 Appeal file be consigned to the Record Room. Announced in the open Court on this 22nd Day of August,2012.
(Neena Bansal Krishna) ASJ-01/PHC/New Delhi CA No. 60/12 Page No. 6 of 6