Delhi District Court
Da vs . Geetam Singh Etc. Page 1 Of 12 on 23 August, 2014
IN THE COURT OF GAURAV RAO
ADDITIONAL CHIEF METROPOLITAN MAGISTRATEII,
PATIALA HOUSE COURTS, NEW DELHI
C.C. No. 136/11
COMPLAINT U/S 16 OF THE PREVENTION OF FOOD ADULTERATION ACT, 1954
Food Inspector
Department of PFA
Govt. of NCT of Delhi
A20, Lawrence Road
Indl. Area, Delhi - 35
........ Complainant
Versus
1.Sh. Geetam Singh S/o Sh. Radhe Shyam M/s Gopaljee Dairy foods Pvt. Ltd.
R/o RZ1414/28, Tughlakabad Ext.
Near Tara Apartment, New Delhi110019.
...... VendorcumArea Sales Manager of accused no. 03.
2. Sh. Jitendra Katiyal S/o Sh. Subhash Katiyal M/s Gopaljee Dairy foods Pvt. Ltd.
Plot No. 1038, Garh Road, Siyana, DistrictBuland Shahar (UP)255412 ...........Nominee of accused no. 03 CC No. 136/11 DA Vs. Geetam Singh etc. Page 1 of 12
3. M /s Gopaljee Dairy foods Pvt. Ltd.
Sales Point: while carrying Milk in truck No. UP13D1285, at Akshardham Setu near Akshardham Temple N. H. 24, Delhi110092 Packing and Marketing Unit: Plot No. 1038, Garh Road, Siyana, DistrictBuland Shahar (UP)245412.
Regd. Office: 4142, Pandav Nagar, New Delhi110008.
................Packing and vending company.
Serial number of the case : 136/11 Date of the commission of the offence : 28.04.2011 Date of filing of the complaint : 27.06.2011 Name of the Complainant : Sh. Hukam Singh, Food Inspector Offence complained of or proved : Section 2 (ia) (a) & (m) of PFA Act 1954, punishable U/s 16(1) (a) r/w section 7 of the PFA Act. Plea of the accused : Pleaded not guilty Final order : Acquitted Arguments heard on : 23.08.2014 Judgment announced on : 23.08.2014 Brief facts of the case
1. In brief the case of the prosecution is that on 28.04.2011 at about 01.00 a.m. Food Inspector M. K. Gupta and FA Sh. Brahma Nand under the supervision and CC No. 136/11 DA Vs. Geetam Singh etc. Page 2 of 12 directions of SDM / LHA Smt. Usha Chaturvedi were present at Akshardham Setu, near Akshardham Temple NH24, Delhi92, when they saw one Tanker/Truck bearing no. UP13D1285 coming from UP side towards Delhi and which was carrying Double Toned Milk for sale in Delhi. Accused no. 1 Geetam Singh was sitting besides the driver in the above truck and on interception he claimed that he was the Area Sales Manager of M/s Gopaljee Dairy Foods Pvt. Ltd. In compliance of the provisions of the Prevention of Food Adulteration Act, 1954 and the Prevention of Food Adulteration Rules, 1955, the Food Inspector collected / purchased the sample of Double Toned Milk.
2. During the course of investigation it was revealed that sample commodity was manufactured by accused no. 3 i.e. M/s Gopaljee Dairy Foods Pvt. Ltd. of which accused no. 2 Jitender Katiyal was the nominee and therefore incharge of and responsible for day to day conduct of its business.
3. It is further the prosecution's case that the sample was sent to Public Analyst for analysis and as per the report of Public Analyst the sample was found not conforming to the standard as per PFA rules 1955 as per tests performed as the Milk solids not fat were less than the prescribed minimum limit of 9.0% and accordingly after obtaining the necessary Sanction / Consent under Section 20 of the Act the present complaint was filed for violation of provisions of Section 2 (ia) (a) & (m) of PFA Act 1954 punishable U/s 16 (1) (a) r/w Section 7 of the Act.
CC No. 136/11 DA Vs. Geetam Singh etc. Page 3 of 12
4. After the complaint was filed, the accused persons were summoned vide orders dated 27.06.2011. The accused no. 2 after filing his appearance moved an application under Section 13(2) of PFA Act to get analyzed the second counterpart of the sample from Central Food Laboratory and consequent thereto second counterpart of the sample as per the choice of the accused was sent to Director, CFL (Pune) for its analysis vide orders dated 27.07.2011. The Director, CFL after analysing the sample opined vide its Certificate dated 11.08.2011 that "sample does not conform to the standards of Double Toned Milk as per PFA Rules 1955 as per tests performed". The Director so opined as the milk fat was found at 1.20% against the minimum prescribed standard of 1.5%.
5. Notice for violation of provision of Section 2 (ia) (a) & (m) of PFA Act 1954 punishable U/s 16 (1) (a) r/w section 7 of the Act was framed against the accused persons vide order dated 15.01.2013 to which accused persons pleaded not guilty and claimed trial.
6. Today the matter was listed for prosecution evidence however no PW was present. So far the prosecution examined two witnesses i.e. FI Sh. M. K. Gupta as PW1 and FI Sh. Hukam Singh as PW2.
7. PW1 M. K. Gupta deposed that on 28.04.2011 he was posted as FI in CC No. 136/11 DA Vs. Geetam Singh etc. Page 4 of 12 Sub Division Vivek Vihar, Delhi. He deposed that on that day he alongwith FA Brahmanand, under the supervision of SDM/LHA Mrs. Usha Chaturvedi were present at Akshardham Setu near Akshardham Mandir, NH24, Delhi when they saw one one truck no. UP13D1285 coming from U.P. Side, carrying poly packs of milk for sale. He deposed that it was intercepted and one person was driving the same and accused Geetam Singh was present by the side of the driver in the above mentioned truck who disclosed himself to be the Area Sales Manager of M/s Gopal Jee Dairy Foods Pvt. Ltd i.e. the company who was the owner of the milk. He deposed that first of all, they disclosed their identity to the accused/vendor Geetam Singh and after inspection of the truck, he expressed his intention to purchase a sample of Double Toned Milk from him for analysis to which he agreed. He deposed that this Double Toned Milk was available in sealed ply packs of 500 ml each, bearing identical label declaration. He deposed that before starting the sample proceedings, he tried to associate some public witnesses by requesting passersby to join the sample proceedings, but none came forward. He deposed that then on his request FA Brahmanand agreed and joined as witness in sample proceedings. He deposed that thereafter, at about 01.00 AM, he purchased from the accused/vendor 3 above mentioned sealed poly packs of Double Toned Milk, on payment of Rs. 39/ vide Vendor's Receipt Ex. PW1/A, bearing signature of vendor at point A. He deposed that the so purchased three poly packs were allowed to be settled at room temperature and they were vigorously shaken for mixing its contents. He deposed that they were cut open from one side and the contents thereof were poured into a clean and dry jug and the contents stirred with the CC No. 136/11 DA Vs. Geetam Singh etc. Page 5 of 12 help of a clean and dry spoon by rotating it in all possible directions. He deposed that thereafter, it was divided into three equal parts by putting it into three clean and dry sample glass bottles. He deposed that 40 drops of Formalin were added in each of sample bottle with the help of a clean and dry dropper. He deposed that all the three sample bottles were separately packed, fastened, marked and sealed as per PFA Act & Rules. He deposed that LHA slips bearing signature and Code No. of LHA Mrs. Usha Chaturvedi were affixed on all the three counterparts from top to bottom. He deposed that the vendor signed on each counterpart in such a manner so as to appear partly on LHA slips and partly on wrapper of the counterparts. He deposed that Notice in Form VI was prepared vide Ex PW1/B and the vendor made an endorsement on this Notice at portion X to X that the sample commodity was ready for sale. He deposed that a copy of this Notice was given to the vendor as per his acknowledgment at portion Y to Y thereon. He deposed that Panchnama was prepared vide Ex PW1/C. He deposed that all these documents were read over and explained to the vendor in Hindi and after understanding the same, he signed the same at point A, witness signed the same at point B and he signed the same at point C. He deposed that Raid Report under Rule 9(e) was prepared vide Ex PW1/D, bearing signature of LHA at point A, signature of witness at point B and his signature at point C. He deposed that accused/vendor furnished his statement at the spot vide Ex. PW1/E, bearing his signature at point A and submitted photocopy of his Bank Pass Book as an I. D. Proof, which is Ex. P1, bearing his signature at point A. He deposed that on the same day i.e. 28.04.2011, one counterpart alongwith a copy of Memo in Form VII in a sealed CC No. 136/11 DA Vs. Geetam Singh etc. Page 6 of 12 packet and another copy of Memo in Form VII in a separate sealed cover were deposited with PA vide PA's Receipt Ex PW1/F and the remaining two counterparts alongwith two copies of Memo in Form VII in a sealed packet were deposited with LHA vide LHA Receipt Ex PW1/G, bearing his signature at point A and signature of LHA at point B, under intimation that one counterpart of the sample has already been deposited with the PA. He deposed that all the copies of Memo in Form VII were marked with Seal Impression with which the sample counterparts were sealed. He deposed that PA Report was received through LHA vide Ex. PW1/H, which revealed that the sample was not conforming to the standards. He deposed that accordingly on the directions of SDM/LHA, he started the investigations. He deposed that during investigation, he sent a letter to M/s Gopal Jee Dairy Foods Pvt Ltd vide Ex. PW1/I and received its reply vide Ex PW1/I1 alongwith photocopy of Nomination in Form VIII, which is Ex. P2, photocopy of Resolution which is Ex. P3 and photocopy of PFA License which is Ex. P4. He deposed that the document Ex. P2 disclosed that accused Jitender Katiyar was the Nominee of M/s Gopal Jee Dairy Foods Pvt. Ltd. He deposed that on conclusions of investigations, he found that vendor/accused Geetam Singh was the Area Sales Manager of accused no. 3 M/s Gopal Jee Dairy Food Pvt Ltd and accused no. 02 Jitender Katiyar was the Nominee of accused no. 03 company and both these accused persons were responsible for conducting the business of accused no.3 company. He deposed that accused no. 03 being the manufacturing company of the sample commodity is also liable in this case. He deposed that thereafter, he put the entire case file before the concerned SDM/LHA CC No. 136/11 DA Vs. Geetam Singh etc. Page 7 of 12 who forwarded the same to the then Director PFA for obtaining his Consent and the then Director PFA Sh. K. S. Singh granted his Consent for prosecution of accused persons after applying his mind vide Ex. PW1/J, bearing his signature at point A. He deposed that he recognized his signature as he had seen his signature on other official correspondence also. He deposed that thereafter, this case file was marked to FI Hukam Singh for further necessary action. He deposed that intimation letter alongwith copy of PA's Report was sent to the accused persons through registered post through concerned SDM/LHA, which was not received back undelivered. He deposed that photocopy of office copy of intimation letters Ex PW1/K and photocopies of postal registration receipts are collectively Ex. PW1/L.
8. During his cross examination he stated that the above mentioned truck was coming from U.P side and had entered in Delhi. He stated that apart from the members consisting the PFA team as mentioned by him above, FI Sh. S.P. Singh was also with us on that day. He stated that the poly packs of the milk were lying in crates which were being carried in the above mentioned truck. He stated that no ice was there in the crates to make the poly packs cool. He stated that the jug in question was provided by the vendor. He stated that only one jug was used by him in sample proceedings. He stated that the capacity of the jug was approx. 3 litre. He stated that the spoon in question was also provided by the vendor. He stated that the jug and spoon were not made clean and dry by any of them, however, before using the same he observed and ensured that the same were clean and dry. He denied the CC No. 136/11 DA Vs. Geetam Singh etc. Page 8 of 12 suggestion that jug and spoon were not clean and dry or that some water was already sticking with them. He stated that he does not remember as to how many times, the sample packets were shaken by him before cutting open the same. He denied the suggestion that some fat remained stuck inside the poly packs, when the contents thereof were taken out in the above mentioned jug. He denied the suggestion that the poly packs were lying in ice and some water from this ice went into the jug during sample proceedings. He stated that the poly packs were not heated before taking the sample. He denied the suggestion that a representative sample was not taken in this case. He stated that he can not comment whether the 'Gerber' method applied by the PA for analysis of the sample commodity in this case is a proper method or not. He voluntarily stated that he is not an expert in this field and the PA can better tell in this regard. He denied the suggestion that the variations between PA & CFL Reports, indicates that a representative sample was not taken in this case. He denied the suggestion that accused / vendor Geetam Singh was not present in the truck when it was intercepted by them. He denied the suggestion that he was called later on and was forced to sign the documents prepared at the spot. He stated that since the accused Geetam Singh disclosed himself to be the Area Sales Manager of the manufacturing / packing company i.e. accused no. 3, hence, the sample was taken from him and not from the driver of the truck. He denied the suggestion that he intentionally let out the driver and implicated accused Geetam Singh in this case. He stated that he particularly does not remember as to what was the strength of Formalin used in this case but it was upto the strength which is required for preserving the CC No. 136/11 DA Vs. Geetam Singh etc. Page 9 of 12 sample commodity. He stated that he does not remember the date when the Formalin was issued to him by PFA Department. He stated that he does not remember as to what was the date mentioned on the label of the Formalin bottle in respect of its manufacturing and expiry. He stated that he does not remember whether the Formalin bottle (from which the Formalin was taken for present sample proceedings) was a fresh one or was used earlier also in some sample proceedings. He stated that it took them about 75 minutes to complete the entire sample proceedings at the spot. He denied the suggestion that no efforts were made to join the sample proceedings. He stated that no helper was there in the truck besides the driver. He denied the suggestion that one helper also was there in the truck or that he was intentionally avoided to join the sample proceedings as a witness.
9. PW2 FI Hukam Singh deposed on the same lines as deposed by PW1 in his examination in chief.
10. This so far is the prosecution evidence. In my opinion taking into account the report of the Director, CFL no purpose shall be served in further continuation of trial in the present case.
11. To establish its case of adulteration i.e. that the sample of Double Toned Milk was not conforming to the standards the prosecution is relying upon the report of Director, CFL dated 11.08.2011 who had reported that the sample of Double Toned CC No. 136/11 DA Vs. Geetam Singh etc. Page 10 of 12 Milk did not conform to the standards as the milk fat were less than the prescribed minimum limit of 1.5%. However as per the report of the Director, CFL, he used the Gerber method for the purpose of analyzing the sample of Double Toned Milk so collected by the Food Inspector. It is reflected in his report that he used I.S. 1224 Part I 1977 method for the purpose of calculating the percentage of milk fat in the sample of Double Toned Milk so analyzed and thereafter By difference calculated the contents of the milk solids not fat in the sample of Double Toned Milk. This is Gerber method as has been fairly conceded by Ld. SPP. The said method is not a sure/accurate test for the purpose of analysis of milk so as to give a finding/report regarding the milk fat and milk solids not fat in sample of milk as held by the Hon. Apex Court in Corporation of City of Nagpur Vs. Neetam Manikraro Kature & Anr. 1998 SCC (Cri) 564. The Hon. Apex Court observed as under:
".......The High Court has indicated that although the Bombay High Court in State of Maharashtra V. Narayan Dewlu Shanbhag held that Gurber'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. The public analyst however followed Gurber's method and on the basis of such report the prosecution case was initiated. In that view of the matter the High Court did not intend to interfere with the order of acquittal. In our view, the High Court has taken a reasonable view and interference by this Court is not warranted. The appeal, therefore, fails and dismissed accordingly."
12. Reliance may also be placed upon State of Maharashtra Vs. Narayan Dewlu Shanbhaju (1979) 3 Cr LR 117 (Bombay), G.K. Upadhayay Vs. Kanubhai CC No. 136/11 DA Vs. Geetam Singh etc. Page 11 of 12 Raimalbhai Rabari and another 2009 (1) FAC 499 and Keshubhai Ranabhai Tukadiya Vs. State of Gujarat 2009 (1) FAC 565.
13. In view of the above as the Director used the Gerber method no reliance can be placed upon the report for the purpose of concluding whether the sample of Double Toned Milk so collected was adulterated or not. Though Ld. SPP for the complainant argued that the Gerber method is a prescribed method in DGHS Manual and is a valid and accurate test and in fact it is the most widely used test all over the world for the purpose of analysis of milk to find out the percentage of the milk fat and the same is also certified by Indian Standards Institute from time to time however in view of the above ruling of the Hon. Supreme Court and failure on the part of the Ld. SPP to distinguish the said ruling I find no merits in his contention.
14. Accordingly in view of my above discussion and the law laid down in Corporation of City of Nagpur Vs. Neetam Manikraro Kature & Anr. 1998 SCC (Cri) 564 the continuation of the trial shall be an exercise in futility with no prospect of a result in favour of prosecution. Accordingly PE is closed and SA is dispensed with. All accused persons stand acquitted of the charges in the present case.
15. I order accordingly.
Announced in the open Court (Gaurav Rao)
on 23rd August 2014 ACMMII/ New Delhi
CC No. 136/11
DA Vs. Geetam Singh etc. Page 12 of 12