Delhi District Court
Sh. Manoj Kumar S/O Sh. Rampal vs Food Inspector on 31 July, 2014
IN THE COURT OF SHRI I.S. MEHTA
DISTRICT & SESSIONS JUDGE : NEW DELHI DISTRICT
NEW DELHI.
Criminal Revision No. 14/2014
Sh. Manoj Kumar S/o Sh. Rampal
M/s Rattan Dairy,
S. No. CA/108/1, Tagore Garden,
New Delhi
R/o ED 141/2, Tagore Garden,
New Delhi .......Appellant
Versus
Food Inspector
Department of PFA,
Govt of NCT of Delhi
A20, Lawrence Road Industrial Area,
New Delhi.
.........Respondent
Date of Institution : 12.03.2014
Date of Argument : 26.07.2014
Date of Decision : 31.07.2014
Appearance: None for appellant.
Sh. Sunil K. Mittal Ld. Advocate
for respondent.
J U D G M E N T
This is an appeal filed by the appellant for setting aside the Criminal Revision No. 14/2014 1 Of page 12 Judgment dated 17.2.2014 and order on sentence dated 26.2.2014 passed by Sh. Gaurav Rao Ld. ACMM II New Delhi convicting the accused and sentencing him to undergo SI for one year and to pay fine of Rs. 5000/ and in default to undergo further SI for 10 days.
2 Brief facts of the present case are that a Complaint U/s 16 of the PFA Act 1954 was filed by Complainant/Food Inspector Sh. S.K. Sharma ( hereinafter referred to as complainant) against Sh. Manoj Kumar. It is stated in the complaint that on 27.04.2009 at about 7.00 PM he purchased a sample of Toned Milk, a food article for analysis from Sh. Manoj Kumar M/s Rattan Dairy, CA/108/1 Tagore Garden, New Delhi where the said article was found stored for sale and where Sh. Manoj Kumar was found conducting business of the said food article at the time of sampling. The sample consisted of 1500 ml. Toned Milk (ready for sale). The sample was taken after proper homogenization by dry and clean plunger by rotating several times in all possible directions. Sample was divided into three equal parts by putting into three clean and dry bottles added 40 drops of formlin in each of the three sample. Notice was given to Manoj Kumar and the price of sample was also given to him vide vendor receipt dated 27.4.2009. Panchanama Criminal Revision No. 14/2014 2 Of page 12 was prepared at the spot. All the documents prepared by the food inspector was signed by Manoj Kumar and witness Ranjit Singh. One part of the sample was sent to Public Analyst, Delhi.
3 The Public Analyst analysed the sample and found the sample does not conform to the standard and reported "The sample does not conform to standard because milk solids not fat is less than the prescribed minimum limit of 8.5%". 4 It is further stated that after conclusion of investigation entire case file including statutory documents, PA's report and FI report were sent to Director PFA, Government of Delhi who accorded his consent U/s 20 of PFA Act for instituting complaint in the designated Court vide his order dated 8.9.2009. 5 On filing of complaint the ld. Trial court summoned the accused. Notice was given to accused on 23.2.2010. Accused pleaded not guilty and claimed trial. Thereafter, evidence was recorded and after hearing the arguments the ld. Trial Court passed the impugned order.
Criminal Revision No. 14/2014 3 Of page 12 6 Aggrieved from the impugned order the appellant has preferred the
present appeal. It is stated that it is recognized scientific fact that Milk ever after addition of formalin retains its value for four months and in this case the complaint was filed after 7 months and Central Food Laboratory examined the sample after 08 months. So the date of Central Food Laboratory could not be held to be reliable. The ld. Trial court should have appreciated that the complaint was filed after 07 months and Director CFL examined the sample after 08 months and its report could not be held to be reliable. It is further stated that evidence of the prosecution witnesses regarding mixing of the bulk of the milk before taking the sample was wholly unsatisfactory. It is further stated that there was contravention of section 10 (
7) of the Act and prays for setting aside the conviction and sentence. 7 I have heard Sh. Sunil K. Mittal ld. Counsel for appellant and Sh. Rattan Negi Ld. Chief Prosecutor for respondent.
8 The ld. Counsel for the appellant submitted that the alleged sample taken suffer from technicalities. The sample taken was sent to Public Analyst wherein the fat contained found was as per the standard. However, Solid not Fat Criminal Revision No. 14/2014 4 Of page 12 was found below the minimum prescribed standard. The ld counsel for the appellant has further submitted that when the second sample was analysed through CFL after about eight months, the result came differently. Both the samples are not truly represented and in these circumstances it cannot be said that the sample taken was not contrary to the provisions as made out under the PFA Act. It is further submitted by Ld. Counsel for the appellant that if the CFL report would prevail upon the PA report as the report of CFL has come after eight months beyond Shelf Life of Milk which is four months. The life of the milk after a gap for four months cannot be relied and therefore its report beyond four months goes automatically.
9 On the other hand Sh. Rattan Negi Chief PP opposed the contention of the ld. Counsel for appellant and submitted that the Court below has rightly convicted the appellant and the variation is not adequate enough to discard the prosecution case. It is further submitted by him that CFL views get priority over PA report.
10 The contents of t he report of Public Analyst dated 12.5.2009 is reproduce
Criminal Revision No. 14/2014 5 Of page 12
as under:
Analysis Report
i Sample Description: Sample received loose in sealed sample bottle
ii Physical appearance: While Colour sample of milk.
Iii Label: Original label not received with sample.
S.N Quality Characteristic Name of Method of Test used Result Prescribed Standards
o as
per:
(a) Item A...of
appendix B
(b) As per label
declaration
for proprietary foods
© As pr provisions of
the
Act and Rules, for
both above
1 Milk Fat Gerber Method 6.1% Not less than 3.0%
2 Milk Solids not fat By difference from total solids 8.26% Not less than 8.5%
3 B.R.at 40 Deg.C 28.011 AOAC 43.00% 40.0 to 43.0
4 Test for Starch Iodine Test Negative Negative
5 Test for Sugar 4.2.1 ICMR Negative Negative
6 Test for Added Urea DMAB Method Negative Negative
7 Test for Gelatin Picric Acid Test Negative Negative
8 Test for Hydrogen Benzidine Test Negative Negative
peroxide
9 Test for Borate Turmeric Test Negative Negative
10 Test for Neutralizer Rosalic Acid Test Negative Negative
11 Test for Mineral Oil 28.133 AOAC Negative Negative
12 Test for Salt Standard Ag No. 3 Negative Negative
Opinion : The sample does not conform to standard because milk solids not fat is less than the Criminal Revision No. 14/2014 6 Of page 12 prescribed minimum limit of 8.5%.
11 The contents of the report of Central Food Laboratory dated 23.12.2009 is reproduce as under: Analysis Report i Sample Description : Sample received in glass bottle ii Physical appearance : Off white milk, not curdled..
Iii Label :
S.No Quality Name of Method of Test used Result Prescribed Standards as
Characteristic per:
(a) Item A...of appendix
B
(b) As per label
declaration
for proprietary foods
(c) As pr provisions of
the
Act and Rules, for both
above
1. Test for Formalin D Pearson Positive Shall be positive.
2. Total Solids I.S. 123331977 12.20 %
3. Milk fat I.S.1224 Part I 1977 4.7 % Not less than 3.0 %
4 Milk Solids not fat. By difference 7.50 % Not less than 8.5 %
5 B.R. Of Extracted A.O.A.C 43.0
fat at 40°C 18th edition
6 Test for
Bicarbonate IS 1479 Part 1961 Negative Shall be negative
Cellulose ICMR 1990 Negative Shall be negative
Monosaccharide do Negative Shall be negative
Starch IS 1479 PartI : 1960 Negative Shall be negative
Sucrose ICMR 1990 Negative Shall be negative
Urea A.O.A.C. 18Th edition Negative Maximum 700 ppm
Skim, Milk Journal of Food Science &
Powder Technology Positive May be Positive
Criminal Revision No. 14/2014 7 Of page 12
Maltodextrin Nestle method Negative Shall be negative
7 Test for colour ICMR 1990 Free from Free from extraneous
extraneous colour
colour
Opinion: I am of the opinion that, the above sample does not conform to the
standards of Toned Milk as per PFA Rules 1955 as per tests
performed.
FINDING
12. The complaint filed by the Food Inspector S.K.Sharma is Ex.PW1/J. As per the complaint Ex. PW1/J, the complaint Ex. PW1/J the Food Inspector S.K.Sharma purchased the sample of toned milk of food article at M/s Rattan Dairy S.No. CA/108/1, Tagore Garden, New Delhi on 27.04.2009 at about 7 p.m. As per the complaint the appellant/accused Manoj Kumar was found conducting the business of the said food article and sample consisted of 1500 ml Toned milk (ready for sale) was taken at the spot from open container bearing label declaration as the tone milk. As per the complaint the sample commodity taken was divided into three equal parts putting into three clean and dry bottles, added 40 drops of formlin in each of the sample bottles by shaking the bottle for proper dispersion. Each sample bottle was separately packed, fastened and sealed according to PFA Act & Rules. The vendor's signatures were obtained on LHA Slip and wrapper of the Criminal Revision No. 14/2014 8 Of page 12 sample bottles. Notice was given to appellant/accused Manoj Kumar and the price of the sample was also given to him vide vendor receipt dated 27.4.2009. Panchnama Ex. PW1/C too was prepared at the spot. All the documents prepared by Food Inspector were signed by Manoj Kumar and other witness Ranjit Singh FA. FA was also joined as witness. One counter part of the sample bearing LHA Code No. 93/LHA/24394 in intact condition alongwith the copy of memo of Form VII and another copy of memo in Form VII under seal cover were sent separately to the Public Analyst, Delhi and two counterparts of the sample alongwith two copies of memos in Form VII were deposited with the SDM/LHA in intact conditions. All copies of Memos in Form VII bear the seal impression with which samples parts were sealed. The Public Analyst analysed the sample and found the sample does not conform to standard. The report of Public Analyst is as follows: "The sample does not conform to standard because milk solids not fat is less than the prescribed minimum limit of 8.5 per cent."
13. The Complaint filed by Sh. S.K.Sharma Food Inspector before the court below is dated 17.11.2009. As per the complaint the sample taken was on 27/4/2009 at M/s M/s Rattan Dairy, CA/108/1 Tagore Garden, New Delhi. The Criminal Revision No. 14/2014 9 Of page 12 report of the PFA dated 12.5.2009 Ex. PW1/F dated 12.05.2009 shows that the milk Fat is 6.1 per cent and Milk Solid not fat is 8.26 per cent against 8.5 per cent.
14. The CFL, Pune report is dated 23/12/2009 and the report is " Milk fat is 4.7 per cent against 3.3 per cent and Milk Solids not fat is 7.50 per cent against Not less than 8.5 per cent."
15. There is a difference of standards of toned milk in both the reports CFL, Pune report dated 23.12.2009 and Public Analyst report dated 12.05.2009 Ex.PW 1/F.
16. The contention of the Ld. Chief PP is that the report of the CFL, Pune supersede the report of the Public Analyst and is conclusive as regards the quality and sample tested is of no dispute, however, the accused can take a defence that the sample tested was not the representative one. In the present case the sample taken was dated 27.04.2009 and the complaint filed is on 17.11.2009. PW1 Food Inspector S.K.Sharma/complainant admitted during his cross examination that the complaint was filed after a period of seven months from the date of lifting the Criminal Revision No. 14/2014 10 Of page 12 sample which is reproduced as under : " It is correct that the complaint was filed after a period of seven months from the date of lifting the sample"
17. The sample taken is of the toned milk. During the cross examination PW1 Food Inspector S.K.Sharma could not give the proper reply to the question of the accused that Shelf Life of the milk after added preservative is about four months.
18. There is no explanation on record why the complaint was filed so late. The second sample report of CFL dated 23.12.2009 losses its significance for want of shelf life of milk after a gap of 7/8 months approximately.
19. There is no cogent evidence proved on record to show that the sample sent was not decomposed between the period 27.4.2009 to 4.12.2009. The reliance is placed on the judgments "Municipal Corporation of Delhi Vs. Ghisa Ram Criminal appeal no. 194 of 1966 Supreme Court of India" and "Gian Chand Vs. The State"
Crl. Revision No. 327D/1966 Delhi High Court .
Criminal Revision No. 14/2014 11 Of page 12
20. Thus, it is apparent that the sample sent to the CFL Pune suffers from its shelf life and the Public Analyst Report also suffers from its genuineness in presence of the variation of standard between the two samples. The reliance is placed upon "Kanshi Nath Vs. State 2005(2) FAC 219 Delhi High Court". As such, the appeal of the appellant is allowed and the impugned judgment dated 17.2.2014 and order on sentence dated 26.2.2014 passed by Sh. Gaurav Rao Ld. ACMM II New Delhi is set aside.
Trial Court record be sent back with copy of this judgment. Appeal file be consigned to record room.
ANNOUNCED IN THE OPEN COURT ON THIS 31st DAY OF JULY 2014 (I.S. MEHTA) District & Sessions Judge New Delhi Criminal Revision No. 14/2014 12 Of page 12