Delhi District Court
Fi vs . Prem Nath Page 1 Of 15 on 12 April, 2013
IN THE COURT OF SHRI BALWANT RAI BANSAL
ADDITIONAL CHIEF METROPOLITAN MAGISTRATEII,
PATIALA HOUSE COURTS, NEW DELHI
C.C. No. 1906/09
Food Inspector
Department of PFA
Govt. of NCT of Delhi
A20, Lawrence Road
Indl. Area, Delhi - 35
........ Complainant
Versus
Sh. Prem Nath
S/o late Sh. Ramnath
M/s Prem Nath Doodhwale
2663, Mahaveer Bazar, Teliwara
Sadar Bazar, Delhi - 06
R/o House No. 313, Gali Prakash
Teliwara, Sadar Bazar, Delhi 06
........ VendorcumProprietor
COMPLAINT U/S 16 OF THE PREVENTION OF FOOD
ADULTERATION ACT, 1954
CC No. 1906/09
FI Vs. Prem Nath Page 1 of 15
Serial number of the case : 1906/09
Date of the commission of the offence : 04/06/09
Date of filing of the complaint : 12/08/09
Name of the Complainant, if any : Shri Chander Bhan Boora, Food
Inspector
Offence complained of or proved : For violation of Section 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 : 05/04/13
Judgment announced on : 12/04/13
J U D G M E N T
1. The present complaint has been filed on 12.08.2009 by the Delhi Administration through FI Sh. Chander Bhan Boora against the accused Prem Nath. It is stated in the complaint that on 04.06.2009 at about 7:30 PM, FI Sh. Chander Bhan Boora purchased a sample of Cow's Milk , a food article for analysis from Sh. Prem Nath S/o late Sh. Ramnath of M/s Prem Nath Doodhwale, 2663, Mahaveer Bazar, Teliwara, Sadar Bazar, Delhi - 06 where the said article was found stored for sale and where accused Prem Nath was found conducting the business of the said food CC No. 1906/09 FI Vs. Prem Nath Page 2 of 15 article at the time of sampling. FI Sh. Chander Bhan Boora purchased 1500 ml of Cow's Milk, taken from a compartment of freezer bearing label declaration as Cow's Milk. The sample was taken after proper mixing the Cow's Milk by rotating with dry and clean measure several times in all possible directions under the supervision and direction of Shri Pradeep Baijal, SDM/LHA. 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 to each bottle with a dropper and thereafter each bottle containing the sample was separately packed, fastened and 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 in Form VI was given to accused and price of sample was also paid to the accused vide Vendor's Receipt dated 04.06.2009. Panchnama was also prepared at the spot. All these documents prepared by FI Sh. Chander Bhan Boora were signed by accused Prem Nath , the vendor and the other witness namely Sh. Mittar Pal , FA. It is stated that before taking the sample, efforts were made to get the public witnesses to join the proceedings, but none came forward and as such Sh. Mittar Pal, FA joined as witness.
2. It is further stated that one counterpart of the sample bearing CC No. 1906/09 FI Vs. Prem Nath Page 3 of 15 LHA code No. 43/LHA/24795 in intact condition along with copy of memo in Form VII and another copy of memo in Form VII under seal cover were sent to the Public Analyst, Delhi and two counterparts of the sample alongwith two copies of memo in Form VII 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 is less than the prescribed minimum limit of 3.5%".
3. It is further stated that Sh. Prem Nath S/o late Sh. Ramnath was found as VendorcumProprietor of M/s Prem Nath Doodhwale, 2663, Mahaveer Bazar, Teliwara, Sadar Bazar, Delhi06 at the time of taking sample and as such he being the incharge of the said shop was responsible for the day to day conduct of the business of the said shop at the time of sampling. Thereafter, the entire case file was sent to the Director, PFA who accorded the requisite consent U/s 20 of the 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 Act.
4. The accused was summoned vide order dated 12.08.2009. 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 CC No. 1906/09 FI Vs. Prem Nath Page 4 of 15 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 11.09.2009 that "sample does not conform to standards of Cow's Milk as per PFA Rules as sample contains milk fat less than 3.5%".
5. Notice U/s 251 Cr.P.C. for violation of Section 2 (ia) (a) & (m) of the PFA Act, punishable U/s 16 (1) (a) r/w section 7 of the PFA Act was framed against the accused vide order dated 02.03.2010 to which accused pleaded not guilty and claimed trial.
6. Thereafter, prosecution examined three witnesses namely Sh. Pradeep Baijal, SDM/LHA as PW1, Food Inspector Sh. Chander Bhan Boora as PW2 and Sh. Mttar Pal, Field Assistant as PW3 and PE was closed vide order dated 06.09.2011.
7. Statement of accused U/s 313 Cr.P.C. was recorded on 15.10.2012 wherein accused claimed himself to be innocent and opted for to lead evidence in his defence. However, accused did not lead any evidence in his defence and DE was closed vide order dated 04.03.2013.
8. I have heard the Ld. Counsel for the parties and perused the record carefully.
CC No. 1906/09 FI Vs. Prem Nath Page 5 of 15
9. The Ld. Counsel for the 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 and, therefore, accused is liable to be given benefit of doubt. He further argued that the proper method of lifting the sample was not applied which is evident from the fact that the sample failed only on account of 'milk fat' which was found less than the prescribed limit. He has further argued that as per report of Director, Central Food Laboratory, 'milk fat' was found to the tune of 2.9% against the minimum requirement of 3.5%, whereas 'milk solids not fat' was found to the tune of 10.07% against minimum requirement of 8.5% and if both are added, it comes to 12.97% more than the prescribed requirement of 12% and, therefore, the accused is entitled to be acquitted. In this regard, he has relied upon the case law titled as Administrator of the City of Nagpur Vs. Laxman & Anr. Crl. No. 132 of 1986.
10. On the other hand Ld. SPP has argued that in the present case, the sample commodity failed on account of 'milk fat', which was found less than the prescribed requirement and therefore, even if total fat comes more than the prescribed requirement, same is of no avail. He has further argued CC No. 1906/09 FI Vs. Prem Nath Page 6 of 15 that that as per report of Director, CFL, the 'milk fat' was 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.
11. All the witnesses examined by the prosecution have deposed more or less as per the averments made in the complaint.
12. PW1 Sh. Pradeep Baijal has deposed in his examinationin chief that he was posted as SDM/LHA, Sadar Bazar on 04.06.2009 and under his direction and supervision, FI Sh. Chander Bhan Boora and FA Sh. Mittal Pal along with other staff visited the premises of M/s Prem Nath Doodh Wale, 2663, Mahavir Bazar, Teliwara, Sadar Bazar, Delhi6, where accused was found conducting the business of said shop including Cow's Milk for sale for human consumption. He has further deposed that FI C.B. Boora purchased 1500 ml of cow's milk, taken from a compartment of freezer bearing label declaration as Cow's milk on payment of Rs. 30/ vide vendor's receipt Ex. PW1/A. He further deposed that sample was taken after homogenization the cow's milk with the help of a clean and dry 500 ml measure by rotating it in all possible directions several times and the Food Inspector divided the same into three equal parts by putting them in CC No. 1906/09 FI Vs. Prem Nath Page 7 of 15 three clean and dry glass bottles and 40 drops of formalin were added to each of the sample bottle and was properly shaken for its uniform distribution. He further deposed that notice in form VI Ex. PW1/B was prepared at the spot and a copy of same was given to accused and panchnama Ex. PW1/C and report under Rule 9 (e) was also prepared at the spot and all the documents Ex. PW1/A to Ex. PW1/C prepared on the spot were read over and explained to the accused who after understanding the same signed the same. He has also deposed that two counter parts of the sample in a sealed packet were deposited in intact condition with him on 05.06.2009 vide receipt Ex. PW1/D and one counterpart of the sample has already been deposited in intact condition with PA vide PA receipt Ex. PW1/E and PA report is Ex. PW1/F according to which the sample does not conform to the standards.
13. PW1 has also placed on record the sanction given by the Director, PFA for initiation 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. PW 1/I and its postal registration receipt as Ex. PW 1/J.
14. PW2 is FI Sh. Chander Bhan Boora who purchased the sample and conducted the sample proceedings. He has also deposed on the similar lines as deposed by PW1 in his examinationinchief and has also CC No. 1906/09 FI Vs. Prem Nath Page 8 of 15 proved on record the letter sent to STO, Ward No. 38 as Ex. PW 2/A from the reply of which it was found that no such dealer was found registered with the Sales Tax, letter sent to the accused as Ex. PW2/B, its reply as Ex. PW2/B1 wherein accused has stated that he is incharge and owner of the shop and his shop is not registered with any government agency.
15. PW3 is Sh. Mittar Pall, Field Assistant who was made a witness at the time of conducting the sample proceedings by PW2 FI Sh. Chander Bhan Boora. He has corroborated the version of PW1 and PW2 in his examinationinchief.
16. PW1 in his crossexamination stated that FI mixed the milk with the help of 500 ml measure in the compartment itself and the milk was put into the sample bottles by the FI with the help of same measure. He denied the suggestion that milk cannot be mixed with the help of measure or that it can be mixed with the help of plunger or dipper. He further denied the suggestion that fat stuck with the measure when the milk was mixed. He also denied the suggestion that two reports are divergent either different samples were sent to different analysts for their opinion were wrong.
17. Similar suggestions were put to PW2 FI Sh. C.B. Boora that milk was on cold condition and fat was floating on the top of the milk, CC No. 1906/09 FI Vs. Prem Nath Page 9 of 15 further that the milk was not properly mixed, the fat stuck with the measure when the milk was mixed, milk cannot be mixed with the help of measure or it can be mixed with the help of plunger or dipper and further that two reports are divergent either different samples were sent to different analysis for their opinion were wrong, which were denied by PW2.
18. PW3 also denied the suggestion in his crossexamination that some fat came on the surface of the milk when it was in cold condition. Voluntarily, he stated that it was properly mixed and was brought at room temperature. He denied the suggestion that the sample commodity was not mixed in the compartment. He stated that no plunger was used for mixing the milk. He denied the suggestion that the milk cannot be mixed with the help of a measure. He further denied the suggestion that the variation if any between PA and CFL Report indicate the fact that the sample was not taken in a representative manner.
19. The accused in his statement U/s 313 Cr.P.C. has admitted the fact that on 04.06.2009 at about 7.30 PM, he was found conducting the business of food articles having stored the same for sale for human consumption including Cow's Milk at the premises of M/s Prem Nath Doodhwale, 2663, Mahavir Bazar, Teliwara, Sadar Bazar, Delhi and a sample of Cow's Milk was lifted by the Food Inspector for analysis. The CC No. 1906/09 FI Vs. Prem Nath Page 10 of 15 sample of Cow's Milk was sent to the Public Analyst (PA) for analysis who after analyzing the same opined vide his report dated 12.06.2009 that sample does not conform to standard because milk fat is less than the prescribed minimum limit of 3.5%. The accused on appearing exercised his right U/s 13 (2) of PFA Act and accordingly second counterpart of the sample was sent to CFL, Pune for analysis and Director, CFL on analysing the second counterpart of the sample opined that "sample does not conform to the standards of Cow Milk as per PFA Rules 1955 as sample contains Milk Fat less than 3.5%.
20. 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 proper method of lifting the sample was not applied and sample commodity was not of a representative character as it was not properly homogenized and and, therefore, there is variations in the report of two Analysts.
21. The present complaint has been launched against the accused on the basis of Public Analyst (PA) report dated 12.06.2009. The report of PA has been exhibited and proved as Ex. PW1/F and same reveals that sample does not conform to standard because 'milk fat' was found to the tune of 3.0% which is less than the prescribed minimum limit of 3.5%, CC No. 1906/09 FI Vs. Prem Nath Page 11 of 15 however, the 'milk solids not fat' was found to be 8.73% which is more than the prescribed minimum limit of 8.5%. Similarly, as per the report of Director, Central Food Laboratory, the sample commodity of Cow's milk failed on the count that the 'milk fat' content was found to be 2.9% against the prescribed requirement of 3.5 %, whereas 'milk solids not fat' was found to be 10.07% which is more than the prescribed limit of 8.5%.
22. As such, as per report of both the Analysts, the only shortfall in the sample of Cow's Milk was in respect of 'milk fat' which was found to be less that the prescribed limit of 3.5%. In an appeal filed before the Hon'ble Supreme Court of India titled as Administrator of the City of Nagpur Vs. Laxman & Anr cited supra, the sample of cow's milk was taken in which the fat percentage was 6% as against 3.5%, which was more than the prescribed for cow's milk. The only shortfall was that SNF which was 7.3%, whereas it ought to have been 8.5%. Further it was noted that the total solids are 13.37 which was again more than the satisfying standard of cow's milk and under those circumstance, the Hon'ble Supreme Court of India held that it cannot be said that courts below have erred in acquitting the accused giving the benefit of doubt.
23. Similarly, in Sakeel Vs. State of Haryana 2008 FAJ (506) (P&H), the analyst reported the sample adulterated as milk solid not fat CC No. 1906/09 FI Vs. Prem Nath Page 12 of 15 contents were 7.7% and deficiency was to the tune of 0.8%, while the percentage of fat was 5.4% which was higher than the prescribed standard, it was held that inference could be drawn that either sample was not properly taken or analyzed or cow was not properly fed.
24. The facts of the present case are squarely covered under the aforesaid authorities. In the present case also, as per report of Director, Central Food Laboratory, the 'milk fat' of the sample commodity of Cow's milk was found to be 2.9% as against the minimum requirement of 3.5% and the 'milk solids not fat' was found to be 10.07% as against the minimum requirement of 8.5% and if percentage of both 'milk fat' and 'milk solids not fat' are added, the total solids comes to 12.97% which is more than the prescribed limit of 12%. Therefore, in view of law laid down in the authorities cited supra, it is apparent that in the present case, either the sample was not properly taken or the cow was not properly fed and benefit of doubt is liable to be given to the accused.
25. The version of the accused that the sample was not homogenized is further substantiated from the variations in the report of Public Analyst and Central Food Laboratory (CFL). As per report of Public Analyst (PA) Ex. PW1/F, the 'milk fat' content of the sample has been shown to be 3.0% , while in the report of CFL, the 'milk fat' content has CC No. 1906/09 FI Vs. Prem Nath Page 13 of 15 been shown to be 2.9%. Similarly, as per report of Public Analyst Ex. PW1/F, the 'milk solids not fat' content of the sample has been shown to be 8.73%, while in the report of CFL, the 'milk solids not fat' has been shown to be 10.07%.
26. The aforesaid variations in the reports of Public Analyst and Central Food Laboratory appears to be on higher side and it goes to show that the sample was not properly mixed up and hence it cannot be said to be representative sample. It has been held by the Hon'ble Delhi High Court in M/s Raja Ram Seth & Sons & Anr. Vs. Delhi Administration 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.
27. 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 CC No. 1906/09 FI Vs. Prem Nath Page 14 of 15 and therefore, for this reason also benefit of doubt is liable to be given to the accused.
28. 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 12th April, 2013 ACMMII/ PHC/ New Delhi
CC No. 1906/09
FI Vs. Prem Nath Page 15 of 15
CC No. 1906/09
DA Vs. Prem Nath
12.04.2013
Present: Sh. Masood Ahmad, Ld. SPP for complainant.
Accused with the counsel Sh. R.D. Goel.
Vide my separate Judgment of even date dictated and announced in the open court, 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 has furnished B/B & S/B in the sum of Rs. 15,000/. The same is accepted.
File be consigned to Record Room.
(Balwant Rai Bansal) ACMMII/PHC/ND/12.04.2013 CC No. 1906/09 FI Vs. Prem Nath Page 16 of 15