Delhi District Court
15. In A Judgment Titled As Kanshi Nath vs . State, 2005(2) Fac on 1 September, 2010
IN THE COURT OF SHRI SANJEEV KUMAR MALHOTRA,
ADDITIONAL CHIEF METROPOLITAN MAGISTRATE-II,
NEWDELHI
C.C. N0. 134/07
Food Inspector
Department of PFA
Govt of NCT of Delhi
A-20, Lawrence Road,
Indl. Area, Delhi-35
Versus
1.Sanjay Kumar S/o Sh. Jai Singh M/s Azad Dairy, 29/11, Chander Shekhar Azad Gali, Main Road, Babarpur, Shahdara, Delhi.
2. Jai Singh S/o Sh. Brahma Nand, M/s Azad Dairy, 29/11, Chander Shekhar Azad Gali, Main Road, Babarpur, Shahdara, Delhi.
3. M/s Azad Dairy, 29/11, Chander Shekhar Azad Gali, Main Road, Babarpur, Shahdara, Delhi.
Date of Institution : 15.10.07 Date of reserving judgment : 01.09.10 Dated of Pronouncement : 01.09.10 U/S: 2 (ia)(a) & (m) punishable under Section 16(1) (a) read with section 7 of the PFA Act The final order : Acquitted C.C. N0. 134/07 1 Brief statement of the reasons for such decision-
1. The present complaint is filed by the Delhi Administration through Food Inspector R.K. Bhaskar against the above said accused, for prosecution of the offence under section 7/16 of the Prevention of Food Adulteration Act, 1954 (hereinafter referred to as the PFA Act)
2. The complainant has submitted that on 22.08.07 at about 6.30 p.m., Food Inspector, R.K. Bhaskar purchased a sample of 'Cow milk', a food article, for analysis from Sh. Sanjay Kumar S/o Sh. Jai Singh from the premises of M/s Azad Dairy, 29/11, Chander Shekhar Azad Gali, Main Road, Babarpur, Shahdara, Delhi. where the said food article was found stored for sale and Sh. Sanjay Kumar was found conducting the business of the said food article at the time of sampling. The sample consisted of 1500 ml of Cow milk taken from an open drum having declaration as 'Cow Milk'. The sample was taken under the supervision/direction of Sh. S.K. Saha, SDM/LHA. The sample was taken after proper homogenization with the help of clean and dry Plunger by rotating it in all possible directions clockwise, anti clockwise, up and down several times. The Food Inspector divided the sample then and there into three equal parts by putting them in three separate clean and dry glass bottles. 40 drops of formalin were added in each sample bottle. Each bottle containing the sample C.C. N0. 134/07 2 was separately packed, fastened, and sealed according to the PFA Act and Rules. The vendor's signatures were obtained on the LHA slip and the wrapper of the sample bottles. Notice was given to the accused Sanjay Kumar and the price of the sample was also given to him vide vendor's receipt dated 22.08.07 but vendor refused to accept vide vendor's receipt. The Panchnama was prepared at the spot. All the documents prepared by Food Inspector were signed by the accused Sanjay Kumar and the other witness Sh. D.N. Verma, F.A. Before starting the sample proceedings efforts were made to join the pubic witnesses but none came forward, as such Sh. D.N. Verma, F.A was joined as witness. One counter part of the sample was sent to the Public Analyst in intact condition and two counter parts were deposited with the LHA in intact condition. The Public Analyst analysed the sample on 14.09.07 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. After the conclusion of the investigation, the entire case file including the statutory documents and PA's report and the report of the FI was sent to the Director (PFA) Delhi Administration, Government of NCT of Delhi who accorded consent under Section 20 of PFA Act for institution of the case and authorised Sh. R.K. Bhaskar, Food Inspector to file the present complaint.
4. The accused are allegedly to have violated the provisions of C.C. N0. 134/07 3 Section 2 (ia)(a) & (m) punishable U/s 16(1)(a) read with Section 7 of the PFA Act.
5. Summons of the case were served upon the accused persons and pursuant thereto they had appeared before the court. On 23.10.07, accused Sanjay Kumar moved the applications to get the second counterpart of the sample analysed from the Director, CFL while exercising his right under Section 13(2) of the PFA Act and second counterparts of the sample was examined by the Director, CFL, Pune vide Certificate No. CFL/550/597/2007 dated 28.11.07 and opined that the sample contains S.N.F less than 8.5% & hence does not conform to the standards of Cow Milk as per PFA Rules, 1955.
6. Notice for contravention of provision of Section 2 (ia)(a) & (m) punishable under Section 16(1) (a) read with section 7 of the PFA Act was framed against the accused persons separately on 18.02.09 to which they pleaded not guilty.
7. In support of its case, complainant examined PW-1 Sh. S.K. Saha, SDM/LHA ; PW-2 F.I. R.K. Bhaskar & PW-3 F.A. D.N. Verma.
8. Statements of accused were recorded under Section 313 Cr.P.C on 17.05.2010 wherein they have controverted and rebutted the entire C.C. N0. 134/07 4 evidence against them while submitting that they are innocent and preferred not to lead evidence in their defence.
9. As per section 2(ia)(a) of PFA Act, an article of food shall be deemed to be adulterated if the article sold by a vendor is not of the nature, substance or quality demanded by the purchaser and is to his prejudice, or is not of the nature substance or quality which it purports or is represented to be.
10. As per section 2 (ia)(m) of PFA Act, an article of food is said to be adulterated if the quality or purity of the article falls below the prescribed standard or its constituents are present in quantities not within the prescribed limits of variability but which does not render it injurious to health.
11. It is true that the mensrea in the ordinary or usual sense of this term is not required for proving an offence defined by Section 7 of the Prevention of Food Adulteration Act, 1954. It is enough if an article of adulterated food is either manufactured for sale or stored or sold or distributed in contravention of any provision of the Act or of any rule made thereunder. Nevertheless, the prosecution has to prove beyond reasonable doubt that what was stored or sold was food.
C.C. N0. 134/07 5ARGUMENTS AND FINDINGS.
12.I have heard both the sides at length and have given my conscious thought and prolonged consideration to the material on record, written submission, relevant provisions of law and the precedents on the point. The SPP has argued that as the case is well proved and the accused is liable to be convicted. Ld. Defence counsel, on the other hand, has vehemently argued that the milk was not properly homogenized and sample was not representative as to why there is vast variation between two reports in respect of counterpart of same sample. Ld. Defence counsel has also drawn my attention in respect of the authorities reported as 2008 (1) FAC 177; 1972 PFA Cases 273; 2005 (2) FAC 219.
Homogenizing of the sample :-
13.Ld. Counsel for the accused argued that the sample was not taken properly after making the entire quantity of milk homogenized. On the other hand, Ld. SPP for the complainant argued that the milk was homogenized with the help of clean and dry plunger by rotating the same in all possible directions several times. It is submitted by the Ld. Defence counsel that milk fat being lighter substance comes at the top of the container and if the milk is not properly mixed, a representative sample cannot be drawn. The defence as taken by the accused was that there was no plunger with C.C. N0. 134/07 6 him or with Food Inspector and milk was not homogenized before sampling. PW-2 F.I. R.K. Bhaskar deposed that the sample of 1500 ml of cow's milk was taken from an open drum having label declaration as ' Cow Milk' after proper homogenization with the help of a clean and dry plunger by rotating in all possible directions several times. In his cross-examination, PW-2 confirmed that plunger was provided by the vendor while F.A. D.N. Verma , who joined the sample proceedings as a witness deposed in his cross-examination that the plunger belonged to them. One witness deposed that plunger was provided by the vendor while another witness deposed that plunger belonged to them. There is contradiction in the testimonies of PW-2 & PW-3 as to the source of availability of plunger, which creates a doubt that the sample of cow's milk was homogenized with the help of plunger .
Whether sample is representative:
14. Ld. SPP for the complainant has submitted that the sample is representative but the Ld. Counsel for the accused has submitted that the sample was not representative sample. Ld. Defence Counsel further submitted that there is difference of more than 0.3% between the report of the Public Analyst and Report of Director, CFL, Pune which itself shows that the sample was not representative. On the other hand, Ld. SPP argued that the accused challenged the report of Public Analyst after considering the same as erroneous and moved an C.C. N0. 134/07 7 application for getting analysed the second counterpart by the Director, CFL. Therefore, he cannot again rely upon the report of the Public Analyst and as such report of Public Analyst cannot be looked into for deciding whether the sample was representative or not.
15. In a judgment titled as Kanshi Nath Vs. State, 2005(2) FAC 219, Delhi High Court , it was held by Hon'ble Mr. Justice Badar Durrez Ahmed, as under:-
''............To this extent, the argument raised by Mr. Sharma that once the certificate of the Director, CFL is obtained, then that is final and conclusive and the Public Analyst's report cannot be looked into at all for any purpose whatsoever, is not quite tenable. If the variation in the two reports is substantial enough, then the Public Analyst's report can certainly be looked into to establish this variation so as to support the contention of the petitioner that the sample was not representative. As indicated above, the Director, CFL who was examined as CW-1 in cross-examination, has clearly stated that if the content of common salt as quantified by the two experts would have a variation of more than- Y.3% then the samples would not be representative. This is an opinion of an expert and one has to go by it. In the facts of the present case, we find that the variation, as indicated above, is more than- Y.3%. Therefore, on the facts of the present case, it can be said that the variation is beyond the acceptable range and would clearly imply that the samples were not representative. In view of this C.C. N0. 134/07 8 finding and in the background of the law which is well settled, no conviction can be sustained. ''
16. In view of above judgment of the Hon'ble Delhi High Court, I find no force in the contention of the Ld. SPP that the report of the Public Analyst and the Director, CFL cannot be looked into to find whether the sample was representative or not. In the present case, as per report of the Public Analyst dated 14.09.07 wherein the opinion given by the Public Analyst, Delhi was that the sample does not conform to the standard and the result of the Public Analyst was as follows:-
Milk fat - 6.3 %
Milk solids not fat - 7.01%
17. The second counterpart of the same sample was analysed by the Director, Central Food Laboratory, Pune dated 28.11.07 , the result of analysis of second counterpart of the sample commodity is as follows:-
Milk fat - 5.6%
Milk solids not fat - 8.16%
18. There is vast variation between the reports of the Public Analyst and the Director, CFL in respect of milk fat and milk solids not fat of counterpart of same sample. No explanation has C.C. N0. 134/07 9 come on record on behalf of the complainant in respect of variation more than 0.3% in the reports by two Analysts in respect of counterpart of same sample. Thereby relying upon Kanshi Nath versus State (supra), I am of the considered view that the sample was not representative.
19. In view of the above discussion and reasons, I am of the considered opinion that the complainant has failed to prove that sample was representative. In result, complaint stands dismissed and all the accused are acquitted. Previous bail bonds of accused No.1 & 2 furnished at the time of appearance stand cancelled. Earlier Sureties discharged. Bail bonds as per Section 437A Cr.P.C are furnished and accepted which shall remain in force for a period of six months. File be consigned to the record room.
Announced in the open court. ( S.K. MALHOTRA )
Dated: 01.09.2010 ACMM-II/NEW DELHI.
C.C. N0. 134/07 10