Delhi District Court
Fi vs . Jagan Nath Page 1 Of 15 on 18 July, 2013
IN THE COURT OF SHRI BALWANT RAI BANSAL
ADDITIONAL CHIEF METROPOLITAN MAGISTRATEII,
PATIALA HOUSE COURTS, NEW DELHI
C.C. No. 123/07
Food Inspector
Department of PFA
Govt. of NCT of Delhi
A20, Lawrence Road
Indl. Area, Delhi - 35
........ Complainant
Versus
Sh. Jagan Nath S/o Sh. Sharda Parshad
M/s Allahabad Dairy,
RZ26, Shankar Park, West Sagarpur,
New Delhi 110046
R/o RZ310/396, Shivpuri,
Street No. 3, West Sagarpur, New Delhi46
........ VendorcumProprietor
COMPLAINT U/S 16 OF THE PREVENTION OF FOOD
ADULTERATION ACT, 1954
Serial number of the case : 123/07
Date of the commission of the offence : 23.05.2007
Date of filing of the complaint : 25.09.2007
Name of the Complainant, if any : Shri D.V. Singh, Food Inspector
CC No. 123/07
FI Vs. Jagan Nath Page 1 of 15
Offence complained of or proved : Violation of Section 2 (ia) (a) &
(m) of PFA Act 1954; punishable
U/s 16(1) (a) r/w Section 7 of PFA
Act
Plea of the accused : Pleaded not guilty
Final order : Acquitted
Arguments heard on : 15.07.2013
Judgment announced on : 18.07.2013
J U D G M E N T
1. The present complaint has been filed on 25.09.2007 by the Delhi Administration through FI Sh. D.V. Singh against the accused Jagan Nath. It is stated in the complaint that on 23.05.2007 at about 8.00 AM, FI D.V. Singh purchased a sample of Standardized Milk, a food article for analysis from Sh. Jagan Nath S/o Sh. Sharda Parshad from the premises of M/s Allahabad Dairy, RZ26, Shankar Park, West Sagarpur, New Delhi 110046, where the said article was found stored for sale and where accused Jagan Nath was found conducting the business of the said food article at the time of sampling. FI Sh. D.V. Singh purchased 750 ml of Standardized Milk, taken from an open drum having no label declaration. The sample was taken under the supervision and direction of Shri S.S. Parihar, SDM/LHA after proper homogenization with the help of dry and clean measure by rotating it in all possible directions clockwise, anti clockwise, up and down several times. Thereafter, the sample was divided into three equal parts by putting it in three separate clean and dry glass bottles and 20 CC No. 123/07 FI Vs. Jagan Nath Page 2 of 15 drops of formalin were added to each bottle 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 23.05.2007. Panchnama was also prepared at the spot. All these documents prepared by FI Sh. D.V. Singh were signed by accused Jagan Nath, the vendor and the other witness namely Sh. Ranjit Singh, FA. It is stated that before taking the sample, efforts were made to get the public witnesses to join the proceedings, but none came forward and as such Sh. Ranjit Singh, FA joined as witness.
2. It is further stated that one counterpart of the sample bearing LHA code No. 82/LHA/18705 in intact condition was sent to the Public Analyst, Delhi and two counterparts of the sample in intact condition were deposited with LHA. The Public Analyst analyzed 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 was revealed that Sh. Jagan Nath S/o Sharda Parshad was the VendorcumProprietor of M/s Allahabad Dairy at the time of taking sample and as such he is incharge and responsible for the day to day conduct of the business of the said shop. 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 CC No. 123/07 FI Vs. Jagan Nath Page 3 of 15 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 the Act.
4. The accused was summoned vide order dated 25.09.2007. The accused appeared and chose not to exercise his right U/s 13 (2) of the PFA Act to get analyzed the second counterpart of the sample from Central Food Laboratory (CFL).
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 the PFA Act was framed against the accused vide order dated 22.04.2009 to which accused pleaded not guilty and claimed trial.
6. Thereafter, prosecution examined three witnesses namely Sh. D.V. Singh, Food Inspector who conducted the sample proceedings as PW1, Sh. S.S. Parihar, the then SDM/LHA as PW2 and Sh. Ranjit Singh, Field Assistant as PW3 and PE was closed vide order dated 25.04.2011.
7. Statement of accused U/s 313 Cr.P.C. was recorded on 22.01.2013 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 28.03.2013.
8. I have heard the Ld. Counsel for the parties and perused the record carefully.
9. Ld. Counsel for accused has argued that it is a case of bad sampling as representative sample was not taken by the Food Inspector. He contended that the Food Inspector mixed the milk with the help of a milk CC No. 123/07 FI Vs. Jagan Nath Page 4 of 15 measure, whereas in order to proper homogenization or sterilization of the milk, the Food Inspector should have mixed the milk with the Plunger, but he has not done so, and, therefore the milk was not properly stirred or mixed. He further argued that the sample was taken from the upper layer without proper homogenization which is evident from the fact that 'milk fat' of the sample commodity was found on the higher side than the prescribed standard, whereas at the same time the milk solids not fat was found less than the prescribed standard and therefore, accused is entitled to be given benefit of doubt. To fortify this argument, he has relied upon the judgment passed by the Hon'ble Punjab and Haryana High Court in "Lekh Raj Vs. U.T. Chandigarh, Criminal Revision No. 505 of 1986." He has further argued that the 'Gerber' method which has been applied by the Public Analyst to detect the fat percentage in the sample commodity is not a sure test and in this regard he has relied upon the judgment passed by the Hon'ble High Court of Delhi in "Corporation of the City of Nagpur Vs. Neetam Manikrao Kature and Ors..1998 SCC (Cri) 564".
10. Ld. Counsel for accused has further argued that the deficiency in the sample of Standardized Milk was only in respect of 'milk solids not fat' and if the percentage of 'milk fat' and 'milk solids not fat' are added, it meets the total requirement of fat content of the sample commodity and, therefore, sample cannot be said to have failed only on account of shortfall in 'milk solids not fat'. In this regard, he has relied upon the case law titled as "Administrator of the City of Nagpur Vs. Laxman & Anr. Crl. No. CC No. 123/07 FI Vs. Jagan Nath Page 5 of 15 132 of 1986." He further argued that there is marginal deficiency in the sample in respect of 'milk solids not fat' and it is possible that there may be judgment of error for which accused is liable to be given benefit of doubt. To fortify this argument, he has placed reliance on case laws titled as "Noratan Mal Vs. State of Rajasthan, Criminal Appeal No. 621 of 1988"
and "P.S. Sharma Vs. Madanlal Kasturichandji & Anr. 2002 (2) FAC
224."
11. On the other hand, Ld. SPP for complainant has argued that Gerber method to detect the fat percentage in the sample is a valid test. He further argued that sterilization of the milk in order to homogenize the same can be done with the help of a milk measure or a plunger and it depends on the structure or make of the container in which the milk is kept and in the present case the milk was properly mixed with the help of milk measure. He further argued that sample commodity was required to be conforming to the standard in respect of 'milk fat' and 'milk solids not fat' separately and independently, whereas the sample commodity failed on account of 'milk solids not fat', which was found less than the prescribed requirement and therefore, even if total fat comes more than the prescribed requirement, same is of no avail and hence accused is liable to be convicted.
12. All the witnesses examined by the prosecution have deposed more or less as per the averments made in the complaint.
13. PW1 FI D.V. Singh who conducted the sample proceedings deposed in his examinationinchief that on 23.05.2007, he along with FA CC No. 123/07 FI Vs. Jagan Nath Page 6 of 15 Ranjeet Singh and other staff under the supervision and direction of SDM/LHA Sh. S.S. Parihar went to M/s Allahabad Dairy, RZ26, Shankar Park, West Sagarpur, New Delhi, where accused was found conducing the business of food article including Standardized milk ready for sale for human consumption. He further deposed that he disclosed his identity and intention for purchasing the sample of Standardized milk lying in the open drum bearing no label declaration, for analysis to which accused agreed and, thereafter at about 8.00 AM, he purchased 750 ml Standardized milk after proper homogenization with the help of a clean and dry measure already lying in the drum by rotating it in all possible directions several times, on payment of Rs. 13/ vide Vendor's receipt Ex. PW1/A. He further deposed that thereafter he divided the sample into three equal parts by putting them in three clean and dry glass bottles and 20 drops of formalin were added to each sample bottle and shaken properly for its proper mixing and thereafter each bottle containing the sample was separately packed, fastened and sealed according to PFA Act and Rules. He further deposed that then notice Ex. PW 1/B was prepared and a copy of notice was also given to the accused and Panchnama Ex. PW1/C was also prepared at the spot and all the aforesaid documents were read over and explained to the accused who after understanding the same signed the same. He further deposed that one counterpart of the sample was deposited with the PA on 23.05.2007 vide receipt Ex. PW1/D and two counterparts of the sample were deposited with the LHA on the same day vide receipt Ex. PW1/E. CC No. 123/07 FI Vs. Jagan Nath Page 7 of 15
14. During his deposition, PW1 has also placed on record report of Public Analyst as Ex. PW1/F, according to which the sample does not conform to the standards, letter sent by him during investigation to vendor as Ex. PW1/G, its reply sent by vendor as Ex. PW1/G1 who also provided photocopy of MCD renewal receipt, income tax return and photocopy of DL which are Mark X1 to Mark X3, letter sent by him to STO, Ward No. 61 as Ex. PW1/H, consent given by the Director, PFA for initiating the prosecution against the accused as Ex. PW1/I, complaint filed by him as Ex. PW1/J, intimation letter sent to the accused along with PA report as Ex. PW1/K and photocopy of its postal registration receipt as Ex. PW1/L.
15. PW2 Sh. S.S. Parihar, the then SDM/LHA under whose supervision and direction, sample proceedings were conducted, has also deposed on the similar lines as deposed by PW1 in his examinationin chief.
16. PW3 Sh. Ranjit Singh, Field Assistant who had accompanied the Food Inspector and was made a witness in the the sample proceedings has also more or less deposed on the similar lines as deposed by PW1 & PW2 in their examinationinchief.
17. PW1 in his crossexamination stated that the milk was homogenized with the help of measure which was already lying in the drum. He denied the suggestion that milk was not properly homogenized or that the milk was lifted from upper layer of the drum. He further denied the suggestion that sample failed due to wrong procedure of sampling.
CC No. 123/07 FI Vs. Jagan Nath Page 8 of 1518. PW2 in his crossexamination stated that measure was already lying in the drum from which the sample was lifted. He also denied the suggestion that milk was not properly homogenized or that the milk was lifted from upper layer of the drum and further that sample failed due to wrong procedure of sampling.
19. Similar suggestions were put to PW3 in his crossexamination that milk was not properly homogenized or that the milk was lifted from upper layer of the drum and further that a representative sample was not taken or proper method of sampling was not adopted in this case, which were denied by the witness.
20. In his statement U/s 313 Cr.P.C., accused has not disputed the fact that on 23.05.2007 at about 8.00 AM, he was found conducting the business of Standardized Milk at his premises M/s Allahabad Dairy, RZ26, Shankar Park, West Sagarpur, New Delhi46 when PFA Team visited his premises and FI Sh. D.V. Singh lifted the sample of Standardized Milk from him for analysis. The sample of Standardized Milk was sent to the Public Analyst (PA) for analysis who after analysing the sample vide his report dated 08.06.2007 found the same not conforming to the standard because 'milk solid not fat' was less than the prescribed minimum limit of 8.5%. The report of Public Analyst has been exhibited and proved as Ex. PW1/F on the basis of which present complaint has been launched against the accused.
21. The defence of the accused from the aforesaid cross CC No. 123/07 FI Vs. Jagan Nath Page 9 of 15 examination of PWs appears to be that proper method of mixing the milk was not applied by the Food Inspector and a representative sample was not taken by the Food Inspector as he lifted the sample from the upper layer of the milk without proper homogenization of the milk. In his statement U/s 313 Cr.P.C also, the accused has contended that the sample was not taken in a representative manner since the sample was taken from the upper layer of the milk and therefore the fat is on higher side.
22. It is evident from the report of Public Analyst Ex. PW1/F that sample of Standardized Milk failed only in respect of 'milk solids not fat' which was found less than the prescribed minimum limit. As per Ld. Counsel for accused, milk was not properly mixed by the Food Inspector as he mixed the milk with the help of a milk measure, whereas he should have mixed with milk the help of a plunger and, therefore, the milk was not properly homogenized/ stirred which resulted in reducing of 'milk solids not fat' in the sample.
23. It is not in dispute that the Standardized Milk, sample of which was taken in the present case, was lying in a drum. PW1 in his cross examination stated that there was about 2530 liters of standardized milk in the drum at the time of sampling and the capacity of the drum was about 7080 liters. He further stated that milk was homogenized with the help of measure which was already lying in the drum. As per PW2, there was about 1520 liters of standardized milk in the drum at the time of sampling and the capacity of the drum was about 4050 liters. He stated that measure CC No. 123/07 FI Vs. Jagan Nath Page 10 of 15 was already lying in the drum from which the sample was lifted. PW3 stated in his crossexamination that total capacity of the drum was approximately 6570 liters and there was approximately 25 liters of Standardized Milk was lying in the said drum at that time.
24. From the aforesaid crossexamination of PWs, it is evident that though there is contradiction in the statement of PWs regarding capacity of the drum in which milk was lying, but it is not in dispute that before taking the sample of Standardized milk, it was mixed by the Food Inspector with the help of milk measure which was already lying in the drum. If it is so, it was not possible to mix the entire milk lying in the drum, average capacity of which was about 60 liters on the basis of statement of PWs, with the help of milk measure upto the depth of the bottom of the drum and thus it cannot be said that it was a proper method of mixing the sample commodity of Standardized milk or that the milk was properly stirred.
25. In a revision petition titled as Lekh Raj Vs. U.T. Chandigarh (cited supra), a sample of Tonned milk was lifted by the Food Inspector from the petitioner for analysis. The sample of Tonned milk was taken from a Patila containing 10 Kg of milk and was sent to the Public Analyst, who found it to be deficient in milk solids not fat than the minimum prescribed standard, while the fat content was found more than the prescribed standard. In the said case, the Food Inspector stirred the milk with a milk measure and in those circumstance the Hon'ble Punjab and Haryana High Court held that stirring the milk with the milk measure is not sufficient to CC No. 123/07 FI Vs. Jagan Nath Page 11 of 15 conclude that the milk was properly stirred unless the milk is stirred with a deep probe or by transferring the milk in the Patila to another vessel and stirring it in the said process. It was further held that stirring of the milk with a milk measure would result in blowing it and separating the fat contents from the milk solids. It was also observed by the Hon'ble High Court of Punjab and Haryana that there is no explanation as to how fat content will be more than the prescribed standard for tonned milk, while at the same time milk solids not fat would be lesser than the prescribed standard, because a milk vendor is not expected to add fat in the milk contents being costlier than the milk itself and if a milk vendor adds water to milk, it will result in reducing fat contents also, provided the sample is taken after proper stirring and in those circumstance it was held that milk was not taken after properly stirring it.
26. In the present case also, the 'milk fat' in the sample was found 6.5 % which is more than the prescribed minimum limit of 4.5% , whereas 'milk solids not fat' was found to the tune of 8.28% which is less than the prescribed minimum limit of 8.5%. Had there been any adulteration in the milk by the accused by adding water to it, the 'milk fat' should have also been reduced in the sample, as observed by the Hon'ble Punjab and Haryana High Court in the authority cited supra, which in the present case was found higher than the prescribed standard and it goes to show that milk was not properly stirred or homogenized before taking the sample as also contended by the accused.
CC No. 123/07 FI Vs. Jagan Nath Page 12 of 1527. Even otherwise, as per report of the Public Analyst Ex. PW1/F, the only shortfall in the sample of Standardized Milk was in respect of 'milk solids not fat' which was found to be 8.28% as against the minimum prescribed limit of 8.5%. In an appeal filed before the Hon'ble Supreme Court titled as Administrator of the City of Nagpur Vs. Laxman & Anr cited 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 which was 7.3%, whereas it 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 those circumstance, the Hon'ble Supreme Court held that it cannot be said that courts below have erred in acquitting the accused giving the benefit of doubt.
28. Similarly, in Sakeel Vs. State of Haryana 2008 FAJ (506) (P&H), the analyst reported the sample adulterated as milk solid not fat contents were 7.7% and deficiency was to the tune of 0.8%, while the percentage of fat was 5.4% which was higher than the prescribed standard, it was held that inference could be drawn that either sample was not properly taken or analyzed or cow was not properly fed.
29. The facts of the present case are squarely covered under the aforesaid authorities. In the present case also, as per report of Public Analyst (PA), the 'milk solids not fat' of the sample commodity of Standardized milk was found to be 8.28% as against the minimum CC No. 123/07 FI Vs. Jagan Nath Page 13 of 15 requirement of 8.5% and the 'milk fat' was found to be 6.5% as against the prescribed minimum limit of 4.5% and if percentage of both 'milk fat' and 'milk solids not fat' are added, the total fat comes to 14.78% which is more than the prescribed limit of 13%. Therefore, in view of law laid down in the authority cited supra, the accused can not be convicted on the basis of shortfall in SNF as total fats are more than the prescribed requirement.
30. Not only this, it is also evident that there is only a marginal deficiency in 'milk solids not fat' which was found 8.25% against the prescribed minimum limit of 8.5% and the difference came to only 0.25% from the standard quantity. In an appeal titled as Noratan Mal Vs. State of Rajasthan relied upon by the Ld. Counsel for accused, a sample of chilli powder was purchased for analysis and total ash found in the sample was 8.38 % by weight against the prescribed requirement of 8 % by weight and the Hon'ble Supreme Court held that, "The adulteration found in the instant case being marginal, the possibility of there being an error of judgment in analysis cannot be ruled out."
31. In the present case also, since there is a marginal deficiency of .25% in 'milk solids not fat' in the sample commodity, it is possible that there may be error of judgment in the analysis by the Public Analyst and for this reason also, the accused is liable to be given benefit of doubt.
32. It is also evident from the report of Public Analyst (PA) Ex. PW1/F that 'Gerber' method has been applied by the Public Analyst to detect the milk fat content of the sample. In Corporation of the City of CC No. 123/07 FI Vs. Jagan Nath Page 14 of 15 Nagpur Vs. Neetam Manikrao Kature and Others 1998 SCC (Cri) 564, the Hon'ble Supreme Court did not approve the Gerber method as a test for detecting the fat content in the milk while observing that Gurber's method of analysis of the quality of food substance was not of assured quality and accuracy and as such method was not certified by the Indian Standard Institute.
33. In the present case, apart from the Gerber method, no other method has been applied by the Public Analyst to detect the fat content in the sample and the Gerber method of analysis being not of assured quality and accuracy, the report of Public Analyst on the basis of which present complaint has been launched against the accused cannot be relied upon.
34. In view of above reasons and discussions, I am of the considered opinion that the prosecution has failed to prove its case against the accused beyond reasonable doubt, benefit of which must go in favour of accused. Accordingly, benefit of doubt is given to the accused and 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 18th July, 2013 ACMMII/ PHC/ New Delhi
CC No. 123/07
FI Vs. Jagan Nath Page 15 of 15
CC No. 123/07
DA Vs. Jagan Nath
18.07.2013
Present: Sh. Masood Ahmad, Ld. SPP for complainant.
Accused with the counsel Sh. R.K. Sharma.
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/. Same is accepted.
File be consigned to Record Room.
(Balwant Rai Bansal) ACMMII/PHC/ND/18.07.2013 CC No. 123/07 FI Vs. Jagan Nath Page 16 of 15