Delhi District Court
Fi vs . Anil Aggarwal Page 1 Of 13 on 3 August, 2013
IN THE COURT OF SHRI BALWANT RAI BANSAL
ADDITIONAL CHIEF METROPOLITAN MAGISTRATEII,
PATIALA HOUSE COURTS, NEW DELHI
C.C. No. 1866/09
Food Inspector
Department of PFA
Govt. of NCT of Delhi
A20, Lawrence Road
Indl. Area, Delhi - 35
........ Complainant
Versus
Sh. Anil Aggarwal
S/o Late Sh. Shri Niwas Aggarwal
M/s Janta Priya Dairy,
365/2, Subhash Market,
Kotla Mubarkpur,
New Delhi110003
........ VendorcumProprietor
COMPLAINT U/S 16 OF THE PREVENTION OF FOOD
ADULTERATION ACT, 1954
CC No. 1866/09
FI Vs. Anil Aggarwal Page 1 of 13
Serial number of the case : 1866/09
Date of the commission of the offence : 21.01.2009
Date of filing of the complaint : 11.06.2009
Name of the Complainant, if any : Shri Virender Singh, F.I.
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 1954.
Plea of the accused : Pleaded not guilty
Final order : Acquitted
Arguments heard on : 01.08.2013
Judgment announced on : 03.08.2013
J U D G M E N T
1. The present complaint has been filed on 11.06.2009 by the Delhi Administration through FI Virender Singh against the accused Sh. Anil Aggarwal. It is stated in the complaint that on 21.01.2009 at about 4:00 PM, FI Virender Singh purchased a sample of Standardised Milk , a food article for analysis from Sh. Anil Aggarwal S/o Late Sh. Shri Niwas Aggarwal of M/s Janta Priya Dairy, 365/2, Subhash Market, Kotla Mubarkpur, New Delhi3, who was found conducting the business of the said food article. FI Virender Singh purchased 1500 ml of Standardised Milk (ready for sale), taken from an open container bearing label CC No. 1866/09 FI Vs. Anil Aggarwal Page 2 of 13 declaration as "Standardised Milk". The sample was taken after proper homogenization with the help of a clean and dry measure by rotating it in all possible directions under the supervision and direction of Shri Lallan Singh, 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 21.01.2009. Panchnama was also prepared at the spot. All these documents prepared by FI Virender Singh were signed by accused Sh. Anil Aggarwal, the vendor and the other witness namely Sh. S. Messy, FA. It is stated that before taking the sample, efforts were made to get the public witnesses to join the sample proceedings, but none came forward and as such Sh. S. Messy, FA joined as witness.
2. It is further stated that one counterpart of the sample bearing LHA code No. 71/LHA/25059 in intact condition was sent to the Public Analyst, Delhi and two counterparts of the sample in intact conditions were CC No. 1866/09 FI Vs. Anil Aggarwal Page 3 of 13 deposited with LHA. The Public Analyst analysed the sample and opined that "the sample does not conform to standard because milk solids not fat is less than the prescribed minimum limit of 8.5%".
3. It is further stated that Sh. Anil Aggarwal, S/o Late Sh. Shri Niwas Aggarwal was the VendorcumProprietor of M/s Janta Priya Dairy, 365/2, Subhash Market, Kotla Mubarkpur, New Delhi3 and was the in charge of the said Dairy and was responsible for the day to day conduct of the business of the said Dairy. 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 PFA Act 1954.
4. The accused was summoned vide order dated 11.06.2009. He appeared on 29.06.2009 and was admitted to bail. On appearing he did not move any application under section 13(2) of PFA Act 1954 to get analyzed the second counterpart of the sample from Central Food Laboratory.
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 PFA Act was framed upon the accused vide order dated 19.11.2009 to which he pleaded not guilty and claimed trial.
CC No. 1866/09 FI Vs. Anil Aggarwal Page 4 of 13
6. Thereafter, prosecution examined three witnesses namely Sh. Lallan Singh, the then SDM / LHA as PW1, Sh. Virender Singh, Food Inspector as PW2 and Sh. S. Messy, Field Assistant as PW3 and PE was closed vide order dated 23.04.2011.
7. Statement of accused U/s 313 Cr.P.C. was recorded on 06.09.2012 wherein accused claimed himself to be innocent and opted to lead evidence in his defence. However, accused did not lead any evidence in his defence and DE was closed vide order dated 11.01.2013.
8. I have heard the Ld. Counsel for the parties and perused the record carefully.
9. Ld. Counsel for the accused argued that the FI has not properly homogenized the sample commodity and did not take a representative sample. He further argued that there is deficiency of .37% in SNF which is a marginal deficiency and there may be error of judgment while determining the value of milk solids not fat (SNF). He further argued that in this case deficiency is only in SNF but total solid are 13.43% which is higher than the satisfying standard of standardised milk. He further argued that PA has applied gerber method for determining the milk fat which is not a sure test and therefore, the accused may be acquitted. He has placed reliance on Administrator of the City of Nagpur Vs. Laxman & Anr CC No. 1866/09 FI Vs. Anil Aggarwal Page 5 of 13 Crl. Appeal No. 132 of 1986, Noratan Mal Vs. State of Rajasthan Arl. Appeal No. 621 of 1988 and Corporation of the City of Nagpur Vs. Neetam Manikrao Kature and Ors. 1998 SCC (Cri) 564.
10. On the other hand Ld. SPP has argued that in the present case, the sample commodity was found deficient in respect of milk solids not fat and even if total solid fat comes more than the total solids that can not be taken into consideration. He further argued that gerber method is a valid test. He concluded his arguments by saying that the prosecution has proved its case beyond reasonable doubt and therefore, the accused is liable to be convicted.
11. All the three witnesses examined by the prosecution have deposed more or less as per the averments made in the complaint and substantiated the averments.
12. PW1 Sh. Lallan Singh has deposed in his examinationin chief that he was posted as SDM/LHA, Defence Colony on 21.01.2009 and under his direction and supervision, FI Virender Singh and FA S. Messy visited the premises of M/s Janta Priya Dairy, 365/2, Subhash Market, Kotla Mubarakpur, New Delhi where accused was found conducting the business of said dairy. He has further deposed that FI purchased 1500 ml of Standardised Milk, taken from an open container having label declaration CC No. 1866/09 FI Vs. Anil Aggarwal Page 6 of 13 as 'Standardised Milk' on payment of Rs. 30/ vide vendor's receipt Ex. PW1/A. He further deposed that sample was taken after homogenization the Standardised Milk with the help of a clean and dry measure by rotating it in all possible directions, several times and the Food Inspector divided the sample into three equal parts by putting them in three clean and dry sample glass bottles. He further deposed that 40 drops of Formalin were added in each sample bottle and shaken properly for its proper dispersion and thereafter each bottle containing the sample was separately packed, fastened, marked and sealed according to PFA Act & Rules. He further deposed that notice was prepared at the spot and same was given to accused which is Ex. PW1/B and panchnama was also prepared at the spot which is Ex. PW1/C. He further deposed that 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 these documents. He has also deposed that two counterparts of the sample in a sealed packet were deposited in intact condition with him on 22.01.2009 vide receipt Ex. PW1/D and one counterpart of the sample in intact condition was got deposited with PA vide PA's receipt Ex. PW1/E. PA's report is Ex. PW1/F according to which the sample does not conform to the standards. He has proved the Sanction as Ex. PW 1/G, complaint as Ex. PW 1/H, CC No. 1866/09 FI Vs. Anil Aggarwal Page 7 of 13 intimation letter as Ex. PW 1/I and postal registration receipts as Ex. PW 1/J.
13. PW2 is FI Virender Singh who purchased the sample and conducted the sample proceedings. He has also deposed on the similar lines as deposed by PW1 in his examinationinchief.
14. PW3 is Sh. S. Messy, Field Assistant who was made a witness at the time of conducting the sample proceedings by PW2 FI Virender Singh. He has corroborated the version of PW1 and PW2 in his examinationinchief.
15. In crossexamination PW1 has deposed that the measure of 1 litre was as per standard of weight and measurement and rod / stick was attached with the measure and the length of measure alongwith stick was about 2 ½ feet. He has further deposed that the milk was put into the sample bottles with the help of the measure and the same was not put in any other container after mixing. He was put a suggestion that Gerber method is not a reliable test to determine the milk solids not fat to which he did not admit or deny. He has denied the suggestion that sample was not made representative.
16. PW2 in his crossexamination could not comment that if milk fat is 1% more then the milk solids not fat will reduce 1% by difference. CC No. 1866/09 FI Vs. Anil Aggarwal Page 8 of 13 He further could not comment that Gerber method is not a reliable method for determination of milk solids not fat. He could not comment that it is the tendency of the milk fat that if it is kept for sometime, milk fat comes at the top. He further could not comment that PA did not mix the sample commodity. He denied the suggestion that sample was not representative or that sample was not properly homogenized.
17. In the crossexamination of PW3 a suggestion was put that milk can not be homogenized properly with the help of a measure but it can be homogenized properly with the help of plunger to which he could not comment anything. He further could not comment that if the deficiency, if any, in the sample of Standardized Milk has occurred on account of sample not being a representative one.
18. In the statement of accused recorded under section 313 Cr. P.C he has admitted that on 21.01.2009 at about 4:00 PM, FI Virender Singh alongwith FA Shri S. Messy and other PFA staff, under the supervision and direction of SDM / LHA Shri Lallan Singh had visited his premises M/s Janta Priya Dairy, 365/2, Subhash Market, Kotla Mubarakpur, New Delhi where he was found present and conducting the business of food articles stored there for sale for human consumption including Standardized Milk which was lying in an open container, bearing declaration as Standardized CC No. 1866/09 FI Vs. Anil Aggarwal Page 9 of 13 Milk. He has admitted that FI Virender Singh had introduced himself and expressed his intention to purchase the sample of Standardized Milk from him to which he agreed. He has taken a defence that insufficient quantity of Formalin was added in the sample commodity and the milk was not properly homogenized by the FI. He has further taken a defence that deficiency found in SNF was due to improper sampling and inaccurate testing by the PA.
19. It was the PA's Report on the basis of which the prosecution has been launched against the accused. As per PA's Report, the sample did not conform to standard because milk solids not fat was less than the prescribed minimum limit of 8.5%.
20. First three contentions of the accused are on the point of shortfall in SNF. From the Report of PA Ex. PW 1/F, it is evident that milk fat (5.3%) was meeting the prescribed standard of milk fat of 4.5% and the shortfall was only in 'milk solids not fat' which was 8.13%, which ought to have been 8.5% and thus there was only .37 % shortfall.
21. In Administrator of the City of Nagpur Vs. Laxman & Anr (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 was 7.3%, whereas it CC No. 1866/09 FI Vs. Anil Aggarwal Page 10 of 13 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 these circumstance, the Metropolitan Magistrate had acquitted the accused and the said order was confirmed by the Hon'ble Supreme Court .
22. In Noratan Mal Vs. State of Rajasthan (supra) a sample of chilli powder was lifted. On being analysed the sample, PA found total Ash 8.38% as against 8.0% and thus there was excess of .38% of total ash in the sample commodity. The trial court acquitted the accused in this case but the Hon'ble High Court reverted the order of acquittal passed by the trial court. Aggrieved by the Hon'ble High Court's order, the accused made an appeal before Hon'ble Supreme Court and after going through the facts of the case, the Hon'ble Apex Court set aside the order passed by Hon'ble High Court by observing that the adulteration found in the instant case being marginal, the possibility of there being an error of judgment in analysis by the PA can not be undermined.
23. In the present case also, though there is a marginal shortfall in SNF but if both milk fat and milk solids not fat are added then total solids comes to the tune of 13.43% which is more than 13.0% i.e. the total of milk fat & milk solids not fat. Furthermore, the deficiency of .37% in SNF is a marginal one and the possibility of error or judgment can not be CC No. 1866/09 FI Vs. Anil Aggarwal Page 11 of 13 undermined and the fact of not homogenizing the sample commodity properly can also not be ruled out.
24. So far as the contention of the accused that Gerber method is not a reliable method of analysis the quality of substance is concerned, in Corporation of the City of Nagpur Vs. Neetam Manikrao Kature & Ors (supra) after relying upon a case titled as State of Maharashtra Vs. Narayan Dewlu Shanbhag the appeal of the Corporation of Nagpur was dismissed. In State of Maharashtra Vs. Narayan Dewlu Shanbag the Hon'ble Bombay High Court observed 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.".
25. In the present case also the PA has applied Gurber method for analysis and since there is no CFL Report to supersede the PA's Report and the Gurber method being not a certified method therefore, no inference can be drawn that milk was not pure.
26. In view of aforesaid discussion and observation, I am of the considered view that the prosecution has not been able to prove its case CC No. 1866/09 FI Vs. Anil Aggarwal Page 12 of 13 beyond reasonable doubt and therefore, the benefit of doubt is liable to be given to the accused. Accordingly, 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 3rd August, 2013 ACMMII/ PHC/ New Delhi
CC No. 1866/09
FI Vs. Anil Aggarwal Page 13 of 13
CC No. 1866/09
DA Vs. Anil Aggarwal
03.08.2013
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/03.08.2013 CC No. 1866/09 FI Vs. Anil Aggarwal Page 14 of 13