Delhi District Court
Yogesh Tyagi vs The State (Delhi Administration) on 17 July, 2012
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IN THE COURT OF MS. NEENA BANSAL KRISHNA :
ADDITIONAL SESSIONS JUDGE-01 : NEW DELHI
In re :
CA No. 46/12
Yogesh Tyagi
S/o Sh. Mangu Singh
M/s Shiv Dairy,
Block II, Gurudwara Main Market,
Kalyanpuri, Delhi-110091 ..... Petitioner
versus
The State (Delhi Administration)
PFA Department,
A-20, Lawrence Road Indl. Area,
Delhi. ..... Respondent
Date of institution of the appeal : 28.05.2012
Date of reserving judgment/order : 09.07.2012
Date of judgment / order : 17.07.2012
JUDGMENT :
1 This appeal u/s 374 Code of Criminal Procedure has been preferred against the judgment dated 21.04.2012 and order on sentence dated 28.04.2012 of Ld. ACMM-II, New Delhi, in complaint case no. 237/05, 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 to undergo rigorous imprisonment for six months and to pay a fine of Rs.5,000/-, in default to undergo further simple imprisonment for 10 days. 2 The facts in brief as stated in the complaint are CA No. 46/12 Page No. 1 of 7 -2- that on 06.09.2006 at about 07.00 p.m. Food Inspector S.P. Singh under the supervision of Sh. V. P. Singh, the then SDM / LHA had purchased a sample of 1.5 litre of "Cow's Milk" from the accused Yogesh Tyagi of M/s Shiv Dairy, block-II, Gurudwara Main Market, Kalyan Puri, Delhi-110091, where he was found conducting the business of the said food article which was stored there for sale. The sample was properly homogenized with the clean plunger and 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 and milk solids not fat were less than the prescribed minimum limit of 3.5% and 8.5% respectively.
3 After obtaining the requisite consent u/s 20 of the Act from Director, PFA, the present complaint was filed in the Court on 17.10.2006.
4 The accused was summoned vide order dated 17.10.2006. He moved an application u/s 13 (2) of the Act, however, subsequently he withdrew the said application. 5 Notice for the violation of the Provisions of Section 2 (ia) (a) & (m) of PFA Act, 1954, punishable u/s 16 (1)(a) r/w Sec. 7 of PFA Act was served upon the accused, to which he pleaded not guilty and claimed trial.
CA No. 46/12 Page No. 2 of 7 -3-6 The prosecution in support of its case examined three witnesses namely PW1 Sh. S.P. Singh, Food Inspector PW2 Sh. V. P. Singh, the then SDM/LHA, and PW3 Sh. Jagdish, Field Assistant.
7 Statement of the accused was recorded u/s 313 Cr.PC in which he pleaded his innocence. He examined one witness namely DW1 Sh. Rajender Singh, LDC employed in PA's Lab, and, thereafter DE was closed on 27.04.2012. 8 The Ld. ACMM after referring to the evidence and also to the Public Analyst report found that the sample of "Cow's Milk" was deficient in "milk fats" and "milk solids not fat (msnf)". He also observed that a defence taken by the appellant that the Public Analyst report was not legible, was not tenable for the simple reason that even if "msnf" figure was not visible, the deficiency in "milk fat" was legible and there was enough notice for the appellant to have exercised his right u/s 13 (2).
9 Aggrieved by the said conviction and sentence, present appeal has been filed.
10 Ld. counsel on behalf of the appellant has argued that in the Public Analyst report "msnf" have been shown as 0.63% when in fact they had been proved by the Public Analyst to be 0.03%. The report of the Public Analyst which was served upon the appellant was not legible for which reason he was not able to exercise his right u/s 13 (2). It was submitted that the fact that the Public Analyst report was not clear is also admitted by PW1. In fact to clarify the report, the Public CA No. 46/12 Page No. 3 of 7 -4- Analyst was examined as a witness. It was, therefore, argued that on this account the appellant is entitled to be acquitted. 11 It is also argued that though the first application u/s 13 (2) was withdrawn by the appellant, his second application u/s 13 (2) had been wrongly dismissed and this in itself defeated his valuable right and he is entitled to be acquitted.
12 Ld. Special PP on behalf of the Department has argued that only Gerber Method but also other tests had been performed to determine the adulteration in the sample of "cow's milk". The Ld. ACMM has rightly convicted the accused and the present appeal is liable to be dismissed. 13 I have heard the arguments and have perused the record. My observations are as under : -
14 The first argument which has been taken on behalf of the appellant was that the milk was in fact washed out residuary wash of various milk containers and was not milk intended for sale. However, this defence has been considered by the Ld. ACMM, who has rightly observed that the said defence was nowhere taken by the appellant in the documents which had been signed by him at the time when the sample was taken. It has further been rightly observed that though in the cross-examination of the prosecution witnesses the appellant had suggested that he had not accepted the money and that his signatures were obtained on blank papers, but there is not a whisper in his statement u/s 313 Cr.PC, when it was specifically put to him that the sample of "Cow's milk"
CA No. 46/12 Page No. 4 of 7 -5-was taken which was intended for sale wherein he has admitted that the sample of "Cow's milk" was taken and the only defence putforth in his statement u/s 313 Cr.PC that the sample was taken without his consent and permission. The Ld. ACMM has, therefore, rightly concluded that this defence was merely an after thought and of little assistance to the appellant.
15 The second defence which has been taken by the appellant was that the Public Analyst report was not legible as "msnf" could be read as 0.03% instead of 6.03% which was the correct figure and in fact even the Public Analyst had to be summoned for clarifying the Public Analyst report. It was argued that it is on account of illegible Public Analyst report that the accused had withdrawn his application u/s 13 (2) of the Act. However, the Ld. ACMM has again rightly observed that in the Public Analyst report it was clearly indicated that the sample was adulterated as "milk fat" and "msnf" are less than the prescribed limit of 3.5% and 8.5% respectively. There was no question of the appellant being misled on account of the figure of 6.03% not being legible in the Public Analyst report. In this regard, it would not be out of place to mention here that the appellant never brought on record the copy of the Public Analyst which was served upon him to show that the figures were not legible. The figures were in fact legible and even if were not legible contents of the Public Analyst report sufficiently stated that the sample was adulterated. There was no prejudice whatsoever which was caused to the appellant CA No. 46/12 Page No. 5 of 7 -6- and his withdrawal of application u/s 13 (2) cannot be attributed to the illegible copy of the Public Analyst Report. This argument is also of a little assistance to the appellant. 16 The third main argument which has been raised is that the Public Analyst had used the Gerber Method for determining the content of "milk fat" and the "msnf" had been calculated on the basis of difference from the total solids. It shows that actually it is the Gerber Method which has been used for ascertaining the "milk fat" and "msnf" content in the milk.
17 It has been held by the Supreme Court in the case of "Corporation of Nagpur v. Neetam Manikrao Kature & Ors., 1998 SCC (Cri) 564" 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.
18 The Public Analyst has followed Gerber's Method and his report based on such test cannot held to be reliable. The Manual of Methods of Analysis of Foods issued by Directorate General of Health Services, Ministry of Health and Family 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 how this method is applied instead of two other methods.
CA No. 46/12 Page No. 6 of 7 -7-The report of the Public Analyst, which is based on the said test can, therefore, not be held reliable.
19 The sample has been claimed to be adulterated solely on the basis of Gerber Test, which is not a sure test and the appellant is entitled to its benefit.
20 In view of the above discussion, the appeal is hereby allowed. Conviction is hereby set aside and the appellant is acquitted. Bail-bond and surety bond stand discharged.
21 Trial Court Record be sent back along with the copy of this order.
22 Appeal file be consigned to the Record Room. Announced in the open Court on this 17th Day of July,2012.
(Neena Bansal Krishna) ASJ-01/PHC/New Delhi CA No. 46/12 Page No. 7 of 7