Delhi District Court
R/O H. No vs Delhi Administration on 28 July, 2012
-1-
IN THE COURT OF MS. NEENA BANSAL KRISHNA :
ADDITIONAL SESSIONS JUDGE-01 : NEW DELHI
In re :
CA No. 40/12
Sunil Kumar Sharma
S/o Sh. Harsharan Sharma
M/s Rama Dairy
74, Madan Gir Village,
New Delhi-110062
R/o H. No. 100, Kashima Bad,
Dubdha Bagpat,
Distt. Bagpat (U.P.) ..... Petitioner
versus
Delhi Administration
Through : Food Inspector
Department of PFA,
A-20, Lawrence Road Indl. Area,
Delhi-110035. ..... Respondent
Date of institution of the appeal : 18.05.2012
Date of reserving judgment/order : 23.07.2012
Date of judgment / order : 28.07.2012
JUDGMENT :
1 This appeal u/s 375 Code of Criminal Procedure has been preferred against the judgment dated 13.04.2012 and order on sentence dated 19.04.2012 passed by Ld. ACMM-II, New Delhi, vide which the appellant has been convicted for offences punishable u/s 16 (1) (a) 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 CA No. 40/12 Page No. 1 of 9 -2- further simple imprisonment for 07 days. 2 The facts in brief as stated in the complaint, are that on 07.07.2005 at about 06.00 p.m. Food Inspector Sh.B.P. Saroha under the supervision of Sh. Manish Garg, the then SDM / LHA had purchased a sample of 750 ml of "Cow's Milk"
from the accused Sunil Kumar Sharma of M/s Rama Dairy, 74, Madan Gir Village, Delhi-110062, where he was found to be conducting the business of the said food article which was stored there for sale in an open steel tub. The sample was properly homogenized with the clean and dry measure and thereafter Food Inspector divided the sample into three equal parts by putting it into three separate clean and dry glass bottles. 20 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 not conform to the standards because milk fat was less than the prescribed minimum limit of 3.5%.
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 07.10.2005. Accused exercised his right u/s 13 (2) of the Act. Consequently, the second counterpart of the sample was sent to the Director, CFL, who gave his opinion that the sample did not conform to the standards of Cow's Milk as per PFA Rules, 1955.
CA No. 40/12 Page No. 2 of 9 -3-5 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 framed against 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. Manish Garg, the then SDM/LHA, PW2 Sh. B. P. Saroha, Food Inspector, and PW3 Sh. S. Messy, Field Assistant.
7 Statement of the accused was recorded u/s 313 Cr.PC in which he pleaded his innocence and opted to lead defence evidence but no defence evidence was led. 8 The Ld. ACMM after perusing the evidence found that in view of the report of Public Analyst and Director, CFL the "Cow's Milk" sample was found to be adulterated and accordingly, convicted and sentenced the accused. 9 Aggrieved by the said judgment, present appeal has been filed.
10 Ld. counsel on behalf of the appellant has argued that there are huge variations in the "milk fat" content as found in the Public Analyst report and the Director, CFL report, which clearly indicated that the sampling was not done properly. Furthermore, the CFL report is dated 03.12.2005, while the sample had been lifted on 07.07.2005 and the inordinate delay for filing of the complaint has defeated the valuable right of the accused u/s 13 (2) of the Act. Moreover, it was the Gerber Test which was used by the Public Analyst for ascertaining the "milk fat" contents which has been held to be CA No. 40/12 Page No. 3 of 9 -4- not a sure test as has been held by the Supreme Court in the case of "Corporation of Nagpur v. Neetam Manikrao Kature & Ors., 1998 SCC (Cri) 564". Furthermore, despite the mandatory requirements u/s 10(7), the public witnesses have not been associated in the investigations and this is corroborated by the fact that the panchnama also does not find any mention of effort made by the Food Inspector to join the public witnesses for the investigations. It was, thus, argued that the accused / appellant is entitled to be acquitted. 11 Ld. Special PP on behalf of the Department has argued that in the reports of Public Analyst, the "milk fat"
content of the "milk" has been found to be below the prescribed minimum limit and the accused has been rightly convicted by the Ld. ACMM 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 The first objection which has been taken by the Ld. counsel on behalf of the appellant is that Gerber's Method has been implied for testing the "milk" sample. 14 The perusal of the Public Analyst report Ex.PW1/G shows that the "milk fat" content had been determined by using the Gerber method, while the "msnf" has been ascertained by difference from total solids which have been found to be 8.5%, which is as per the prescribed standards. The question which arises is whether the determination of "milk fat" as 3.1% against 3.5% can be considered reliable in CA No. 40/12 Page No. 4 of 9 -5- view of the Gerber Method, which has been used by the Public Analyst.
15 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.
16 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 why this method is applied instead of two other methods. The report of the Public Analyst, which is based on the said test can, therefore, not be held reliable.
17 The second argument which has been addressed is that the reports of Public Analyst and Director, CFL are highly divergent as is evident from the two reports. The variations which have been noted in the Public Analy the st and CFL report are as under :
CA No. 40/12 Page No. 5 of 9 -6-Sr.No. Quality Characteristics PA Report CFL Report 1 Butyro-Refractometer Reading at 40o C 43 43.0 2 Milk Fat 3.1% 2.74% 3 Milk Solids not fat (msnf) 8.50% 9.24% 4 Total Solids ----- 11.98
18 Considering the huge divergence of figures in Public Analyst report and CFL report, the process followed for lifting the sample assumes significance. 19 The significance of proper sampling of "milk" products for analysis was highlighted in "A Laboratory Manual of Milk Inspection" by A. C. Aggarwala and R. N. Sharma, Fourth Edition, 1961, at page 115 as under :
"General Sampling : The careful and accurate sampling of milk is of utmost importance in all analysis of milk. Probably more errors are ensued through careless preparation of samples than in the actual performance of the tests. The most important thing is to bear in mind in this connection is that the whole body of milk from which a sample is to be drawn should be uniform throughout in its composition, and any sample of mil drawn out of it for analysis must necessarily be a true representative of the whole body of milk. The factors disturbing the uniformity of composition of milk are mainly the separation and partial churning of fat. Thorough mixing of milk must first be ensured either by stirring with a long handled dipper if the container is big, or by pouring from one vessel to another or by shaking gently."CA No. 40/12 Page No. 6 of 9 -7-
20 PW1 Sh. Manish Garg, the then SDM/LHA, in his cross-examination had clarified that there was about 25 litres of milk lying in a tub of about 100 litre capacity and the same was mixed with the help of a measure having a capacity of 500 ml. Similarly, in the testimony of PW2 Food Inspector Sh. B. P. Saroha and PW3 Field Assistant S. Messay accepted that he has deposed that the capacity of the measure was one litre. The question which arises is whether the said quantity of milk could have been properly mixed with the help of half litre measure considering that the milk was lying in a tub having capacity of 100 litre.
21 In the present case, it cannot be said that 500 ml measure could have been properly mixed and homogenized, the milk or that the sample was taken after proper homogenization. The reason for difference in the two reports can, thus, be attributed to improper homogenization of the milk.
22 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 measure. 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 carried therein. The testimony of Food Inspector that the content had been stirred in a drum with the help of "milk" measure is of no consequence for if the "milk" is taken out CA No. 40/12 Page No. 7 of 9 -8- 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.
23 In the present case as well though it is the measure, which is deposed to have been used, but it is evident that the "milk" had not been stirred properly and homogenized. 24 It is also significant to consider that the Public Analyst in his report Ex.PW1/G dated 07.07.2012 had noticed that the physical appearance of the milk was "white colour", while in the CFL report dated 03.12.2005 physical appearance of the sample was of "off-white liquid". This clearly shows that even though the milk had not been putrified, but certainly, it had gone some chemical changes. The sample though forwarded to the Director, CFL, in October, 2005, had been examined only in the month of December from 01.12.2005 to 03.12.2005.
25 The facts as in hand are similar which were considered by the Supreme Court in the case of "MCD v. Ghisa Ram, AIR 1967 SC 970". In the said case sample of "Cow Milk" had been taken and the complaint before the Ld. MM had been filed after about a period of seven months. In the said case after relying upon the evidence of the expert, it was noted that the food article like curd starts undergoing changes after a week if kept at a room temperature without a preservative but remains fit for analysis for another 10 days thereafter. However, if the sample is kept in a refrigerator, it CA No. 40/12 Page No. 8 of 9 -9- will preserve its fats and non-fatty acids contents for the purpose of analysis for a total period of four weeks. If a preservative is added and the sample is kept at room temperature, the sample can be analyzed for about four months and in case it is refrigerated the sample will be available for analysis without the decomposition for another six months.
26 In the present case, the sample has been examined by the Director, CFL, after about five months and the delay in the examination of the sample could also be a reason for the sample to have shown "milk fat" content as lower than the prescribed limit.
27 The prosecution has, therefore, not been able to establish that the proper prescribed procedure has been used for taking the sample and there is also a delay in examination of the sample by the Director, CFL. The benefit of the same, therefore, has to go to the appellant.
28 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.
29 Trial Court Record be sent back alongwith the copy of this order.
30 Appeal file be consigned to the Record Room. Announced in the open Court on this 28th Day of July,2012.
(Neena Bansal Krishna) ASJ-01/PHC/New Delhi CA No. 40/12 Page No. 9 of 9