Delhi District Court
Da vs . Mukesh Kumar Jain Etc. on 22 November, 2014
IN THE COURT OF GAURAV RAO
ADDITIONAL CHIEF METROPOLITAN MAGISTRATEII,
PATIALA HOUSE COURTS, NEW DELHI
DA Vs. Mukesh Kumar Jain etc.
C.C. No. 2/10
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.M/s Gujarat Cooperative Milk Marketing Federation Ltd.
Sales Office 24/1, D Block Institutional Area, Janakpuri, New Delhi. ............Marketer/supplier company
2. Prafulla Prakash Bhatnagar, Manager (Quality Assurance) M/s Dudhman Sagar Dairy (A unit of Mehsana Distt) Cooperative Milk Producer's Union Ltd) Works - Plot No. 26D, Sector 3, IMT Manesar 122050 ..........Manager/Nominee of accused no. 3
3. M/s Mehsana District Cooperative Milk Producers Union Ltd, Owner of Dhudhsagar Dairy, CC No. 2/10 DA Vs. Mukesh Kumar Jain etc Page 1 of 10 Works - Plot No. 26D, Sector 3, IMT Manesar 122050 Having Head Office at Post Box no. 1 Mehsana 384002, Gujarat ........Manufacturer company Serial number of the case : 2/10 Date of the commission of the offence : 25.06.2009 Date of filing of the complaint : 04.01.2010 Name of the Complainant : Sh. Rajpal 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 : All accused Acquitted Arguments heard on : 22.11.2014 Judgment announced on : 22.11.2014 Brief facts of the case
1. In brief the case of the prosecution is that on 25.06.2009 at about 12.30 p.m. Food Inspector Rajpal Singh and Field Assistant Sh. S.N. Jindal under the supervision and directions of SDM / LHA Sh. Ranjeet Singh visited M/s Anand Dairy Products D14/223, Sector 7, Rohini, Delhi85, where accused Mukesh Kumar Jain (accused no. 1 as per original complaint and discharged vide orders dated 07.09.2013) who was the VendorCumProprietor was found present conducting the business of sale of various dairy articles including pasteurized full cream Milk which CC No. 2/10 DA Vs. Mukesh Kumar Jain etc Page 2 of 10 was lying in sealed polypacks of 500 Ml each for sale for human consumption and 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 pasteurized full cream Milk.
2. During the course of investigation it was revealed that the sample commodity was supplied to M/s Anand Dairy of which accused no. 1 (since discharged) was the proprietor by M/s Jai Ambey Agency of which Amit Bajaj was the proprietor (accused no. 2 as per original complaint and also discharged vide orders dated 07.09.2013). It was further revealed that Amit Bajaj procured the sample commodity from accused no. 1 M/s Gujarat Cooperative Milk Marketing Federation Ltd. (accused no. 4 as per original complaint) of which Sunil Kumar Chopra (accused no. 3 as per original complaint and proceedings against whom were abated vide orders dated 14.11.2011) was the Dy. Manager cum Nominee and was the Incharge and therefore responsible for the day to day conduct of the business.
3. Investigation further revealed that the sampled food product was manufactured by accused no. 3 M/s Mehsana District Cooperative Milk Producers Union Ltd. (accused no. 6 as per original complaint) of which accused no. 2 Prafulla Parkash Bhatnagar (Accused no. 5 as per original complaint) is the Nominee under the provisions of PFA Act and Incharge of and responsible for day to day conduct of the business of the manufacturing unit.
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4. 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 standards because 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.
5. After the complaint was filed, accused persons were summoned vide orders dated 04.1.2010. Accused no. 5 Prafulla Parkash Bhatnagar 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 30.01.2010. The Director, CFL after analysing the sample opined vide its Certificate dated 11.02.2010 that " sample does not conform to the standards of Full Cream Milk as per PFA Rules 1955 as per tests performed". The Director so opined as the Milk fat were found at 5.1% against the minimum prescribed limit of 6.0%.
6. 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 all the CC No. 2/10 DA Vs. Mukesh Kumar Jain etc Page 4 of 10 accused persons vide orders dated 24.05.2010 to all the accused persons pleaded not guilty and claimed trial.
7. During the course of trial accused Mukesh Kumar Jain of M/s Anand Dairy Products (accused no. 1 as per the original complaint) and Amit Bajaj of M/s Jai Ambey Agency (accused no. 2 as per the original complaint) were given the benefit of warranty by the Ld. Predecessor of this court and discharged vide proceedings dated 07.09.2013. Proceedings against accused S.K. Chopra (accused no. 3 as per the original complaint) were abated on account of his death vide proceedings dated 14.11.2011.
8. So far the complainant/prosecution examined only one witness i.e FI Rajpal Singh as PW1.
A brief scrutiny of the evidence recorded in the matter is as under:
9. PW1 Food Inspector Rajpal Singh deposed that on 25.06.2009 he was posted as FI in Sub Division Saraswati Vihar, Delhi and on that day he alongwith FA Shri S.N Jindal, under the supervision of SDM / LHA Shri Ranjeet Singh visited the premises of M/s Anand Dairy Products D14/223, Sector 7, Rohini, Delhi85 where accused Mukesh Kumar Jain (since discharge), was found conducting the business of above mentioned shop, having stored various milk & milk product including CC No. 2/10 DA Vs. Mukesh Kumar Jain etc Page 5 of 10 Pasteurized Full Cream Milk for sale for human consumption. He deposed that this Pasteurized Full Cream Milk was lying in sealed poly - packs of 500 ml each ,bearing identical label declaration. He deposed that the accused / vendor disclosed his name at the spot as Mahesh Kumar Jain however during investigation his actual name was revealed as Mukesh Kumar Jain. He deposed that first of all, they disclosed their identity to the accused / vendor Mukesh Kumar Jain and after inspection of the shop he expressed his intention to purchase a sample of Pasteurized Full Cream Milk from him for analysis to which he agreed. He deposed that before starting the sample proceedings he tried to associate some public witnesses in sample proceedings by requesting some customers, passersby and neighbourers, but none came forward then, on his request FA Shri S.N Jindal agreed and joined as witness in sample proceedings. He deposed that thereafter, at about 12:30 PM he purchased from the accused / vendor 3 above mentioned sealed polypacks of Pasteurized Full Cream Milk , on payment of Rs. 39/ vide Vendor's Receipt Ex. PW 1/A, bearing signature of vendor at point A. He deposed that the so purchased three sealed polypacks were shaken vigorously and were cut open from one corner with the help of a clean and dry scissors and thereafter contents of all the three polypacks were poured in a clean and dry jug and then mixed it properly with the help of another clean and dry jug by pouring and repouring the same several times. He deposed that thereafter it was divided into three equal parts and was put into three clean and dry sample glass bottles. He deposed that 40 drops of formalin were added in each sample bottle as preservative. He deposed that all the three sample bottles were separately packed, fastened, CC No. 2/10 DA Vs. Mukesh Kumar Jain etc Page 6 of 10 marked and sealed as per PFA Act & Rules. LHA slips bearing signature and Code No. of LHA Shri Ranjeet Singh 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. PW 1/B and the vendor disclosed the source of purchase of the sample commodity at portion X to X on this Notice. He deposed that a copy of this Notice was given to the vendor as per his acknowledgment thereon at portion Y to Y. He deposed that the vendor also disclosed that he will produce the bill of purchase later on. He deposed that a Notice under section 14 A was prepared at the spot , addressing to the supplier as disclosed by the vendor. Office copy of the same is Ex. PW1/B1. He deposed that one copy of this notice was sent to the addressee through registered post on the same date. He deposed that Panchnama was prepared vide Ex. PW 1/C. He deposed that all these documents were read over and explained to the vendor in Hindi in vernacular and after understanding the same accused signed the same at point A, witness signed the same at point B and he signed the same at point C. He deposed that on the same day i.e. 25.06.2009, one counterpart alongwith a copy of Memo in Form VII in a sealed packet and another copy of Memo in Form VII in a separate sealed cover were deposited with PA vide PA's Receipt Ex. PW 1/D and the remaining two counterparts alongwith two copies of Memo in Form VII in a sealed packet were deposited with LHA on 25.06.2009 vide LHA Receipt Ex. PW 1/E, bearing his signature at point A and signature of LHA at point B, under intimation that one counterpart of the sample has CC No. 2/10 DA Vs. Mukesh Kumar Jain etc Page 7 of 10 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. PW 1/F, which revealed that the sample was not conforming to the standard and accordingly on the directions of SDM/LHA, he started the investigations.
10. The testimony of this witness (PW1) remains deferred vide proceedings dated 14.07.2014. However in my opinion taking into account the report of the Director 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 pasteurized full cream milk was not conforming to the standards the prosecution is relying upon the report of Director, CFL dated 11.02.2010 who had reported that the sample of pasteurized full cream milk did not conform to the standards as the milk fat were less than the prescribed minimum limit of 6.0%. However as per the report of the Director, CFL, he used the Gerber method for the purpose of analyzing the sample of pasteurized full cream milk so collected by the Food Inspector. It is reflected in his report that he used I.S. 1224 Part I 1977 for the purpose of calculating the percentage of milk fat in the sample of pasteurized full cream milk so analyzed and thereafter By difference calculated the contents of the milk solids not fat in the sample of full cream 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 food article/ milk so as CC No. 2/10 DA Vs. Mukesh Kumar Jain etc Page 8 of 10 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 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 pasteurized full cream 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 CC No. 2/10 DA Vs. Mukesh Kumar Jain etc Page 9 of 10 over the world for the purpose of analysis of food article/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 inCorporation of City of Nagpur Vs. Neetam Manikraro Kature & Anr. 1998 SCC (Cri) 564 the continuation of the trial shall be an exercise in futility. Accordingly PE is closed and SA is dispensed with. All the accused persons stand acquitted of the charges in the present case.
15. I order accordingly.
Announced in the open Court (Gaurav Rao)
on 22nd November 2014 ACMMII/ New Delhi
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