Delhi District Court
Deepak Malik vs State on 8 April, 2010
IN THE COURT OF SH. SANJIV JAIN: SPECIAL JUDGE NDPS
PATIALA HOUSE COURTS : NEW DELHI
Date of Institution: 28.08.2009
Judgment reserved on :
Date of pronouncement : 08.04.2010
C.A. No. 53/09
ID No. 02403R0264582009
Deepak Malik
M/s Choudhary Dairy
House No. 219, Dispensary Wali Gali
Mangol Pur Kalan,
Delhi
.... Appellant
Versus
State
(Through Delhi Administration)
Delhi
..... Respondent
ORDER
1. This criminal appeal is preferred against the judgment and the order on sentence of Ld ACMM dt. 24.7.09 and 29.7.09 whereby the appellant was convicted of the offence punishable u/s. 16(1) r/w section 7 of the PFA Act for violation of sub clause (e) & (g) of section 2 (ix) of PFA Act and sentenced to imprisonment and fine.
2. The facts leading to the disposal of the present appeal are that on 26.02.94 at about 11.30 am the Food Inspector purchased 1 two polypacks of "Pasteurised Full Cream Milk (Vita Brand)" a food article for analysis from Kapil Chadda at his shop TangoTing, IP 2A, Pitam Pura, Delhi where the said food article was stored for human consumption. The milk lying in the freezer was poured in clean and dry jug and mixed with help of clean spoon to make it homogenious. The polypacks were having identical label declaration. The food inspector divided the sample into 3 equal parts by putting it in 3 separate clean and dry bottles and added 27 drops of formalin in each of the bottle. Notice in form VI was given to the appellant and a panchanama was prepared. Efforts were also made to join public witnesses but none came forward. The sample was sent to the Public Analyst who on analysis vide his report dt. 16.03.94 found it not confirming to the standards because milk fat and milk solids not fat were less than the prescribed minimum limit of 6.0% and 9.0% respectively. Enquiry revealed that Kapil Chadda had purchased the milk from M/s Choudhary Dairy at 219 Dispensary wali gali, Mangolpur Kalan, Delhi vide cash memo 005 dt. 26.2.94. the milk in question was processed and packed by the Gurgaon and Rohtak Co operative Milk Producers Union limited and marketed by the Haryana Dairy Development Cooperative Federation Limited, Chandigarh. The appellant Deepak Mailk proprietor of M/s Choudhary Dairy was the authorised distributor of products of Vita milk processed and packed by Haryana Dairy Development Cooperative Federation 2 Limited. Amrikh Singh CEO was the person responsible for the conduct of the business of Gurgaon and Rohtak Cooperative Milk Food Producers Union Limited. N.K Sharma the quality control officer was the nominee of the company Haryana Dairy Development Co operative Federation Limited.
3. After getting sanction, the prosecution was launched against the accused including the appellant. Accused N.K Sharma had exercised option u/s. 13(2) for sending the second counterpart to the Director, CFL, Calcutta who vide his report dt. 01.03.95 found the samples not conforming to the standards laid down for Buffalo Milk (class of milk not indicated on label) under the provisions of PFA Act 1954 and Rules as the milk fat contents fell below the minimum standard. The complainant had examined three witnesses Sh. R.K. Ahuja as PW1, Sh Satish Kumar Gupta as PW2 and Sh. S.K. Sharma as Pw3. The appellant in his statement recorded u/s. 313 CrPC controverted the entire evidence and examined Sh. Om Prakash Boora. The Trial Court on the basis of the evidence led and the averments made convicted the appellant of the offence and acquitted the remaining accused.
4. This order is assailed on the ground that the appellant was not the manufacturer of the milk ; M/s Haryana Dairy Development 3 Cooperative Federation limited was the manufacturer.
5. Notice of this appeal was given to the respondent / Delhi Administration and the trial Court record was summoned.
6. I have heard the arguments advanced by ld counsel Sh Ranbir Singh Kundu for the appellant and Sh. Padi for Delhi Administration and gone through the material placed on record.
7. The trial Court in para 19 of the impugned judgment had observed that the sample was analysed by the public analyst on 16.3.94 ie within 18 days form the date the sample was lifted. The counterparts of the sample were kept in a room temperature and not in refrigerator as admitted by Pw1. No explanation whatsoever came on record that even after the opinion of public analyst, why period of almost 10 months was taken by the department to launch the prosecution against the accused although the complainant was aware that the accused can exercise his right u/s. 13(2) of the Act to get the second counterpart analysed from the Director CFL only after institution of the complaint, which is also fatal to the case of complainant.
8. Vide para 23 and 24 of the impugned order ld Trial Court 4 had observed the difference of analysis in respect of milk fat and milk solids not fat samples in the report of two analysis which was not within the acceptable range of 0.3%. Reliance was placed on the judgment of the case Kashi Nath vs. state 2005 (2) FAC 219, Delhi High Court. It was held that the milk was not property homoginised resulting in non representable samples due to which divergent reports were given by two experts in respect of counterpart of the same sample. It was held that the accused cannot be convicted for the violation of sub clause (a) (m) of Section 2(ia) of the PFA Act.
9. Ld Trial Court vide para 25 of the impugned judgment had considered the contention of the appellant that the sample packets were not supplied by the appellant to the accused Kapil Chadda (proclaimed offender). It was held that the sample packets were supplied by the appellant to the accused Kapil Chadda. Ld trial court while coming to this conclusion had observed that Pw2 has confirmed that at the time of sampling, milk packets were duly sealed and there was no leakage. The appellant had not taken the defence that the sample packets were not supplied by him to the vendor. A letter Ex. PW2/E was written by the appellant that his driver had supplied 20 kg of milk to the accused vide bill no. 005 dt. 26.2.94. The Ld Trial Court observed that the appellant never handed over any bill of purchase of sample commodity from Haryana Dairy or from Gurgaon 5 Rohtak dairy, nor there was any evidence to show the link that the appellant was the distributor / dealer of Gurgaon Rohtak Cooperative Milk Producer Union Ltd, so in the absence of any evidence ie bill / invoice / cash memo / any letter of grant of dealership or any link evidence, it cannot be said that the sample packets were manufactured and supplied by Gurgaon Rohtak Cooperative Milk Producers Union Ltd to the appellant. Thus the appellant was rightly not given benefit of warranty.
10. In the present case, the trial Court had convicted the appellant as there was false claim on the label of sample packets. On the packet, the weight was declared as 1 liter but the packets were containing milk 500 ml each.
11. As per Section 2(ix) of the Act, an article of food shall be deemed to be misbranded if false claims are made for it upon the label or otherwise or if the package / label bears any statement, design or devise which is false or misleading in any material particular or if the package is otherwise deceptive with respect to its contents.
12. I have perused the documents as well as the testimony of the witnesses. As per form VI Ex. PW1/G, two sealed polythene packets of Pasteurised full cream milk were taken out from the 6 freezer having identical label declaration processed and manufactured by Haryana Diary Federation at Ballabhgarh with maximum retail price inclusive of all taxes Rs. 10.00. The brand name of the milk was Vita and its quantity was mentioned on the packet as 1 liter. On the form, the vendor had given in writing that the polybags were supplied by one Ravinder Singh, Rohini. As per the vendor's receipt Ex. PW1/A, a sum of Rs. 10.00 was paid being the cost of 1 liter Pasteurised milk ie of two sealed polythene bags. It is not the case of the prosecution that for two polythene bags Rs. 20/ were charged. No doubt there was a label declaration qua quantity ie one liter in form VI but the receipt shows that only Rs. 5.00 was charged for one packet (Rs. 10.00 for two polypacks) which was the cost of 1 liter Pasteurised skimmed milk.
13. Misbranded means if it is an imitation of, or is a substitute for, or resembles in a manner likely to deceive, another article of food under the name of which it is sold, and is not plainly and conspicuously labelled so as to indicate its true character.
14. In this case from the naked eye or from point of view of layman customer, it could be seen that the pouch contained 500 ml of pasteurised skimmed milk so labeling it as 1 litre would not deceive the customer in any manner. This Act was enacted to make provision 7 for the prevention of adulteration of food stuffs which was rampant, widespread and persistent.
15. In the instant case through the appellant had failed to produce the bill for claiming the benefit of warranty. However on considering the notice in form VI, the vendors receipt, coupled with the testimony of prosecution witnesses I do not find the label declaration on the pack as 1 litre instead of 500 ml misleading or deceptive with respect to its contents as observed by the Trial Court.
16. Keeping in view all the facts and circumstances of the case I am of the opinion that appellant deserves benefit. I accordingly acquit the appellant / accused for violation of Sub clause (e) & (g) of Section 2 (ix) of PFA Act giving him benefit of doubt. The fine amount deposited by the appellant be returned after expiry of period of appeal or revision.
File be consigned to record room.
Trial Court Record be sent back.
Announced in the open court th on this 08 day of April, 2010 (Sanjiv Jain) 8 Special Judge - NDPS Patiala House Courts : New Delhi 9