Delhi District Court
Food Inspector vs . 1. Sunil Kumar Sharma on 13 April, 2012
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IN THE COURT OF SHRI RAGHUBIR SINGH,
ADDITIONAL CHIEF METROPOLITAN MAGISTRATEII,
PATIALA HOUSE COURTS, NEW DELHI
Food Inspector Vs. 1. Sunil Kumar Sharma
Department of PFA S/o Shri Harsharn Sharma
Govt. of NCT of Delhi M/s Rama Dairy
A20, Lawrence Road 74, Madan Gir Village,
Indl. Area, Delhi - 35 Delhi62.
R/o: H. No. 100, Kashima Bad,
Dudbha Bagpat,
Distt. Bagpat(UP).
J U D G M E N T
Serial number of the case : 220/05 Date of the commission of the offence : 07.07.2005 Date of filing of the complaint : 07.10.2005 Name of the Complainant, if any : Shri B.P. Saroha, Food Inspector. Offence complained of or proved : S. 2 (ia) (a) & (m) of PFA Act 1954;
punishable U/s 16(1)(a) of PFA Act, r/w S. 7 of PFA Act 1954.
Plea of the accused : Pleaded not guilty
Final order : Convicted.
Arguments heard on : 13.04.2012
Judgment announced on : 13.04.2012
CC No. 220/05
DA Vs. Sunil Kumar Sharma
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Brief Statement of reasons for such decision
1. The present complaint was filed on 07.10.2005 by the Delhi Administration through FI Sh. B.P. Saroha against the afore named accused. It is averred in the complaint that on 07.07.2005 at about 6:00 PM, FI Sh. B.P. Saroha purchased a sample of Cow's Milk, a food article for analysis from Sh. Sunil Kumar Sharma, S/o Sh Harsharn Sharma of M/s Rama Dairy, 74, Madan Gir Village, Delhi62, where the said food article was found stored for sale and afore named accused was found conducting the business of the said food article at the time of sampling. The sample consisted of approx. 750 ml of Cow's Milk, which was taken from an open steel tub, bearing label declaration as 'Cow's Milk'. The sample was taken under the supervision and direction of Sh. Manish Garg, SDM / LHA , after properly homogenizing it with the help of a clean and dry measure. The FI divided the sample into three equal parts then and there by putting it in three separate clean and dry glass bottles. 20 drops of Formalin were added in each sample bottle. Each sample bottle was separately packed, fastened and sealed as per the requirements. The vendor's signatures were obtained on the LHA slips and the wrapper of the sample bottles. Notice was given to accused and price paid vide vendor's receipt dated 07.07.2005. Panchnama was also CC No. 220/05 DA Vs. Sunil Kumar Sharma ::3::
prepared at the spot. All these documents prepared by FI, were signed by said Sh. Sunil Kumar Sharma; the vendor and the other witness namely Sh. S. Messy, FA ( as no public witness had come forward for the purpose despite efforts).
2. The complaint further runs to the effect that one counterpart of the sample bearing LHA code No. 72/LHA/11744 was sent to the PA, Delhi in intact condition and two intact counterparts were deposited with the LHA.
The PA analysed and found 'the sample not conforming to standards because milk fat was less than the prescribed minimum limit of 3.5%'.
3. Further, said Sh. Sunil Kumar Sharma was found to be Vendorcum Proprietor of M/s Rama Dairy (as above) at the time of sampling and thus, he was InCharge and responsible for the day to day conduct of the business at the aforesaid 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.
4. The accused was summoned vide order dated 07.10.2005. On appearing, he moved an application U/s 13(2) of the Act of 1954 for CC No. 220/05 DA Vs. Sunil Kumar Sharma ::4::
getting analysed the second counterpart of the sample from CFL. Consequently, the second counterpart of the sample was sent to the Director CFL, for analysis. Director CFL; after analysing the counterpart of the sample gave his opinion to the effect that "the sample bearing No. 72/LHA/11744 does not conform to the standards of Cow's Milk as per PFA Rules 1955".
5. Notice for the violation of the Provisions of S. 2 (ia) (a) & (m) of PFA Act; punishable U/s 16 (1) (a), r/w S. 7 of PFA Act 1954 was framed (v/o dated 12.10.09) against the accused, to which he pleaded not guilty and claimed trial.
6. Three witnesses namely Sh. Manish Garg; SDM / LHA (PW1), Sh. B.P. Singh; Food Inspector (PW2) and Sh. S. Messy; Field Assistant (PW3) were examined on behalf of the complainant and the PE stood closed vide order dated 04.09.2010.
7. Statement of the accused U/s 313 Cr. P.C was recorded as on 20.05.2011 whereby, he opted to lead defence evidence. However, no DE was led by / on behalf of the accused and the same stood closed vide order dated15.10.2011.
CC No. 220/05 DA Vs. Sunil Kumar Sharma ::5::
8. File perused. Counsels heard.
9. The prosecution against the accused was launched on the basis of the PA's Report dated 04.08.05 exhibited as Ex. PW 1/G, wherein, it is opined that the sample of Cow's Milk was found not conforming to the standards because of the deficiency of 'milk fat contents'. The accused on being summoned v/o 07.10.05 appeared, and moved an application dated 25.10.05 U/s 13 (2) of the Act of 1954 towards exercising the Right of getting the second counterpart analysed.
Accordingly, the selected second counterpart of the sample was sent to the Central Food Laboratory - Pune, for the analysis thereof. The Report of the Director CFL in the form of Certificate dated 03.12.05 was received to the effect that 'the sample was found not conforming to the standards of Cow's Milk as per PFA Rules 1955'. The Report of the Director CFL, is not only per se admissible but, is also the conclusive evidence of the facts stated therein.
10. The prosecution witnesses have deposed in terms of the narration explicit in the Complaint. PW1 Shri Manish Garg, the then SDM / LHA has deposed touching upon the aspect of constitution of the raiding party, visit paid to the premises in question, disclosure of identity and intention of CC No. 220/05 DA Vs. Sunil Kumar Sharma ::6::
lifting the sample of the food article in question etc. etc. Vide his deposition recorded as on 12.03.10, he has duly proved the factum of purchase of the requisite quantity of Cow's Milk from the vendor / accused against the payment of price thereof vide Receipt Ex. PW 1/A. The quantity of the milk so purchased was equally divided into three parts by putting it into separate clean and dry glass bottles and 20 drops of Formalin were added in each sample bottle and these bottles were duly fastened, sealed wrapped etc. LHA slips were affixed thereupon and the vendor's signatures were obtained in a manner so as to partly appear on the wrapper and partly on the LHA Slip. Prior to lifting the sample the entire quantity of Milk, lying in a sealed Tub, had been made homogenized with the help of a clean and dry measure. Notice in Form VI and the Panchnama were prepared during the course of sample proceedings and the same stand proved vide documents exhibited as Ex. PW 1/B and Ex. PW 1/C respectively. Copy of the Notice Ex. PW 1/B was supplied to the vendor against Receipt, who also gave a statement Ex. PW 1/D. The witness has further deposed that two counterparts of the sample, alongwith two copies of Memo in Form VII; in a sealed packet, were deposited with him i.e. SDM/LHA as on 08.07.2005 vide Receipt Ex. PW 1/E and it was intimated that one counterpart of the sample had already been deposited with the PA. Report of the Public Analyst is given the identification mark CC No. 220/05 DA Vs. Sunil Kumar Sharma ::7::
as Ex. PW 1/G and the portion thereof, marked as mark 'X' shows that the sample was found not conforming to the standards. The requisite Consent stands proved as Ex. PW 1/H. The Intimation Letter alongwith the copy of PA Report sent through registered post (Postal Receipt Ex. PW 1/L) has / have been proved as Ex. PW 1/K. FI Shri B.P. Saroha; examined as PW2, besides deposing on the lines as above, has also stated that one counterpart of the sample in intact condition was deposited with the PA as on 08.07.2005 vide Receipt Ex. PW 1/F alongwith the Memo in Form VII in a separate sealed packet. The deposition of the FA i.e. PW3 is also in coherence with the depositions as above.
11. Cow's Milk was found and adjudged deficient in 'milk fat' contents not only by the PA vide Report PW 1/G but, also by the Director CFL, vide Certificate dated 03.12.2005. The 'milk fat' contents were required to be not less than '3.5%'. However, in respect of the first sample counterpart, the presence thereof, was to the tune of '3.1%' and in respect of the second counterpart 'fat contents' were adjudged to be '2.74%'. It is also worth mentioning that even the 'total solids' were also found and adjudged by both the Experts, to be less than the minimum requirement of '12%'. This way there remains no doubt that the milk in question was not conforming to the standards thereof.
CC No. 220/05 DA Vs. Sunil Kumar Sharma ::8::
12. In defence, the following objections were raised:
(i) the deterioration had started taking place in the milk.
(ii) mixing of the milk with the help of 'measure' was wrong and sample was not a representative one.
(iii) the method applied by the Experts was not an accurate method.
13. The first objection raised on behalf of the accused does appear in the form of a suggestion to the effect that deterioration had started taking place in the Milk. It appears that Ld. Defence Counsel had put the said suggestion concerning the CFL Report. However, the said Report / Certificate itself makes it clear on its first Page that the sample in question was 'fit for analysis' and was analysed w.e.f. 01.12.2005 to 03.12.2005. The objection is thus rendered meaningless.
14. The next objection is that the 'measure' was a wrong apparatus for the purpose of homogenizing the milk and that a 'Plunger' should have been used for the said purpose. As a matter of fact, the total quantity of milk was 20 - 25 liters; lying in an open Steel Tub. It was not at all CC No. 220/05 DA Vs. Sunil Kumar Sharma ::9::
disputed that the entire quantity of milk was mixed with the help of one liter 'measure' by rotating it clockwise; anticlockwise and pouring it time and again. 20 - 25 liters of milk; that too lying in a Tub, can very well be mixed with the help of a 'measure' and the method so adopted for the purpose of homogenization of the milk, prior to lifting the sample thereof, was in no way an improper method. Furthermore, both the Experts have found deficiency in respect of 'fat' contents and even if it is assumed for a moment that the milk had not been properly homogenized, in that eventuality the sample might have been lifted from the upper / top (layer), which generally does have more 'fatty' contents in comparison to the milk at the bottom of an utensil, as the 'nonfatty solids' tend to settle / accumulate there in the lower layers of the milk. Furthermore, both the Experts are in concurrence with each other w.r.t. the deficiency in respect of milk 'fat' contents in the respective counterparts of the given sample and their Reports are clear enough to establish that the milk in question was not only deficient in 'fat' contents but, was also deficient even in respect of total solids.
15. It was also contended in defence that the method applied by the Experts was not an accurate method. Ld. Defence Counsel was mainly concerned with the Gerber Method, while raising the objection regarding CC No. 220/05 DA Vs. Sunil Kumar Sharma ::10::
this defence pretext. In this regard, a reference can very well be made of the "HandBook of Food Analysis", written by Shri S.N. Mahendru, the then Chief Chemist, Regional Agmark Laboratory, Delhi, which book at its Page No. 63 and onwards; under the heading - 'Fat Determination in milk', deals with / talks about 3 Systems / Methods of determining the 'fat' in milk. These methods are:
(a) Direct determination by extraction with ether as adopted in the Adam's Coil's Method.
(b) Separation of the fat by chemical means followed by centrifuging. This technique is employed in the Gerber Method as well as in LefmannBeam Method.
(c) Separation of fat by acid or alkali treatment and its subsequent removal by ether. This system finds application in the WernerSchmidt and Gottleib Method.
The esteemed author is generally examined as a witness in defence in numerous cases under PFA Act. He has elaborated in the said Book that the Adam's Paper Coil Method is the most accurate method for the analysis of milk but, the said method is suitable for 'fresh milk' only. In the given context, the milk in question was the 'preserved milk' i.e. the milk CC No. 220/05 DA Vs. Sunil Kumar Sharma ::11::
preserved by adding preservative 'formalin' therein. Hence, the Adam's Paper Coil was not at all a suitable method for the analysis thereof. Regarding the Gerber's Method, the author of the afore quoted Book has clearly mentioned therein, that the said Test is simple, quick and accurate. This method is mostly applied on a routine basis in milk plants in India.
16. It is also worth mentioning that the Act of 1954 does not envisage any particular method for the purpose of analysing the food article in question. In the absence thereof, it is left to the discretion of the worthy Experts to decide as to which of the method is to be applied for the analysis. Furthermore, the Report of the Director CFL is the conclusive evidence of the facts stated therein; irrespective of the method used for analysing the given food article. It is of no avail that such 'n' such method was not to be used in the analysis of given food article; without mentioning the reasons for the same as well as without suggesting the suitable alternative method and the comparative advantages thereof.
17. The appreciation made herein above clearly establishes that the Cow's milk was deficient in respect of 'milk fat' contents as well as the 'total solids' and was thus, rightly adjudged as not conforming to the standards thereof. The accused is thus, found and held guilty for the CC No. 220/05 DA Vs. Sunil Kumar Sharma ::12::
offence(s) alleged against him.
Be put up on 18.04.2012, for arguments / order on quantum of sentence.
Announced in the (Raghubir Singh)
open court on 13 April 2012
th
ACMMII/New Delhi
CC No. 220/05
DA Vs. Sunil Kumar Sharma
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IN THE COURT OF SHRI RAGHUBIR SINGH,
ADDITIONAL CHIEF METROPOLITAN MAGISTRATEII, PATIALA HOUSE COURTS, NEW DELHI Food Inspector Vs. 1. Sunil Kumar Sharma Department of PFA S/o Shri Harsharn Sharma Govt. of NCT of Delhi M/s Rama Dairy A20, Lawrence Road 74, Madan Gir Village, Indl. Area, Delhi - 35 Delhi62.
R/o: H. No. 100, Kashima Bad, Dudbha Bagpat, Distt. Bagpat (UP).
ORDER ON SENTENCE Present: Shri Masood Ahmad, Ld. SPP for the complainant.
Convict in person with Ld. Counsel.
Heard on the point of sentence. Ld. Counsel for the convict has prayed for taking a lenient view on the ground that the accused / convict is not a previous convict and the sole bread earner. It is further argued on behalf of the convict that he is married; having four daughters; three of them are unmarried and are dependent upon him.
On the other hand, Ld. SPP for the complainant has argued that the offences under the PFA Act are economic offences and should be CC No. 220/05 DA Vs. Sunil Kumar Sharma ::14::
dealt with suitably.
Taking into consideration the submissions as summarized herein above, the convict is hereby sentenced to undergo R.I. for 6 months and to pay fine in the sum of Rs. 5,000/ (Rupees Five Thousand Only) and in default thereof the accused shall further undergo S.I. For 7 days. Fine paid.
At this stage, at the request of the convict, he is admitted to bail (U/s 389 r/w S. 437A Cr. P.C.) on furnishing Bail Bond and Surety Bond in the sum of Rs. 10,000/ (Rupees Ten Thousand only) with one surety in the like amount. Bail Bond furnished. Accepted.
Copy of the judgment as well as order on sentence supplied to the convict free of cost; against receipt.
File be consigned to Record Room.
Announced in the (Raghubir Singh)
open court on 19 April 2012
th
ACMMII/New Delhi
CC No. 220/05
DA Vs. Sunil Kumar Sharma