Delhi District Court
Fi vs . Dharampal Page 1 Of 16 on 18 November, 2013
IN THE COURT OF SHRI BALWANT RAI BANSAL
ADDITIONAL CHIEF METROPOLITAN MAGISTRATEII,
PATIALA HOUSE COURTS, NEW DELHI
C.C. No. 72/06
Food Inspector
Department of PFA
Govt. of NCT of Delhi
A20, Lawrence Road
Indl. Area, Delhi - 35
........ Complainant
Versus
Sh. Dharampal S/o Sh. Khajan Singh
M/s Choudhary Dairy,
X/2223, Gali No. 6, Raghubar Pura - I,
Gandhi Nagar, Delhi 31
R/o Village Gothra P.O. Khekra
Tehsil Baghpat Distt. Baghpat (U.P.)
........ VendorcumProprietor
COMPLAINT U/S 16 OF THE PREVENTION OF FOOD
ADULTERATION ACT, 1954
Serial number of the case : 72/06
Date of the commission of the offence : 28.12.2005
Date of filing of the complaint : 10.03.2006
Name of the Complainant, if any : Shri Ranjeet Singh, Food Inspector
CC No. 72/06
FI Vs. Dharampal Page 1 of 16
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 : 28.10.2013
Judgment announced on : 18.11.2013
J U D G M E N T
1. The present complaint has been filed on 10.03.2006 by the Delhi Administration through FI Sh. Ranjeet Singh against the accused Dharampal. It is stated in the complaint that on 28.12.2005 at about 5.30 PM, FI Ranjeet Singh purchased a sample of 'Cow's Milk ', a food article for analysis from Dharampal S/o Sh. Khajan Singh of M/s Choudhary Dairy, X/2223, Gali No. 6, Raghubar Pura - I, Gandhi Nagar, Delhi 31, where the said article was found stored for sale and where accused Dharampal was found conducting the business of the said food article at the time of sampling. FI Sh. Ranjeet Singh purchased 1500 ml of 'Cow's Milk', taken from an open can bearing no label declaration. The sample was taken under the supervision and direction of Sh. V.P. Singh, SDM/LHA after proper homogenization with the help of a measure lying in the can and thereafter the sample was divided into three equal parts by Food Inspector by putting it in three clean and dry glass bottles and 40 drops of formalin were added to each sample bottle and thereafter each bottle containing the sample was separately packed, fastened and sealed according to the PFA CC No. 72/06 FI Vs. Dharampal Page 2 of 16 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 given to him vide vendor's receipt dated 28.12.2005. Panchnama was also prepared at the spot. All these documents prepared by FI Sh. Ranjeet Singh were signed by accused Dharampal, the vendor and the other witness namely Sh. Mittra Pal, 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. Mittra Pal, FA joined as witness.
2. It is further stated that one counterpart of the sample bearing LHA Code No. 21/LHA/14346 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 is stated that during investigation it was revealed that Dharampal S/o Sh. Khajan Singh was the VendorcumProprietor of M/s Choudhary Dairy, X/2223, Gali No. 6, Raghubar Pura - I, Gandhi Nagar, Delhi 31 at the time of sampling and as such he is incharge and responsible for the day to day conduct of the business of the said dairy. After conclusion of the investigation, 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. 72/06 FI Vs. Dharampal Page 3 of 16 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 10.03.2006. The accused appeared and moved an application U/s 13 (2) of the PFA Act to get analyzed the second counterpart of the sample from Central Food Laboratory (CFL). The said application was allowed and consequently second counterpart of the sample was sent to Central Food Laboratory, Pune for analysis. Director, CFL on analysing the second counterpart of the sample in question opined vide his Certificate dated 15.05.2006 that "The sample bearing No. 21/LHA/14346 does not conform to the standards of of Cow's Milk as per PFA Rules 1955."
5. The prosecution examined FI Ranjeet Singh, who conducted the sample proceedings as PW1 towards precharge evidence and vide order dated 21.04.2009, precharge evidence was closed.
6. Charge for violation of sub clause (a) & (m) of Section 2 (ia) 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 10.08.2009 to which accused pleaded not guilty and claimed trial.
7. Thereafter, prosecution examined three witnesses including FI Sh. Ranjeet Singh, Sh. Mittra Pal, FA, who was made a witness in the sample proceedings as PW2 and Sh. V.P. Singh, the then SDM/LHA under whose supervisions sample proceedings were conducted as PW3 and PE was closed vide order dated 25.04.2013.
CC No. 72/06 FI Vs. Dharampal Page 4 of 168. Statement of accused U/s 313 Cr.P.C. was recorded on 25.07.2013 wherein accused claimed himself to be innocent. However, he opted not to lead evidence in his defence and accordingly DE was closed vide order dated 25.07.2013.
9. I have heard the Ld. Counsel for the parties and perused the record carefully.
10. Ld. Counsel for accused has argued that the deficiency in the sample of Cow's Milk as per report of both the Experts was only in respect of 'milk solids not fat', whereas 'milk fat' was found more than the prescribed limit and if the percentage of 'milk fat' and 'milk solids not fat' are added, it meets the requirement of total solids of the sample commodity and, therefore, sample cannot be said to have failed only on account of shortfall in respect of '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. 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. He further argued that there are variations in the report of Public Analyst and Director, CFL which suggests that a representative sample was not lifted by the Food Inspector, benefit of which should be CC No. 72/06 FI Vs. Dharampal Page 5 of 16 given to the accused. It is also argued by Ld. Counsel for accused that 'Gerber' method has been applied by both the Analysts to detect the fat content in the sample commodity, which is not an assured and accurate test in view of law laid down by the Hon'ble Apex Court in Corporation of the City of Nagpur Vs. Neetam Manikrao Kature and Others 1998 SCC (Cri) 564 and, therefore, accused cannot be held guilty.
11. On the other hand, Ld. SPP for complainant has argued that sample commodity was required to be conforming to the standard in respect of 'milk fat' and 'milk solids not fat' separately, 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. He further argued that Gerber method to detect the fat content in the sample commodity is a valid test. Ld. Prosecutor further argued that as per report of Director, CFL, the sample was found not conforming to the standards of Cow's Milk as per PFA Rules and the report of Director, CFL being conclusive, supersedes the report of Public Analyst and, therefore, the accused cannot be given benefit of variations in the report of Public Analyst and Director, CFL and he 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 Sh. Ranjeet Singh, who is the complainant and conducted the sample proceedings in the present case deposed in his CC No. 72/06 FI Vs. Dharampal Page 6 of 16 examinationinchief that on 28.12.2005, he along with FA Sh. Mittra Pal and other staff under the supervision and direction of Sh. V.P. Singh, SDM/LHA went to M/s Chaudhary Dairy, X/2223, Gali No. 6, Raghubarpura 1, Gandhi Nagar, Delhi, where accused Dharampal was found conducting the business of said dairy including Cow's Milk kept there for sale for human consumption. He further deposed that they disclosed their identity and intention for purchasing the sample of Cow's Milk for analysis to which accused agreed and thereafter at about 5.30 PM he purchased 1500 ml of Cow's Milk from an open Can bearing no label declaration after proper homogenization with the help of a measure lying in the Can on payment of Rs. 24/ vide receipt Ex. PW1/A. He further deposed that the sample was homogenized properly with the help of a measure lying in the Can when the required quantity was put into a clean and dry steel jug and then again repoured it in another clean and dry steel jug by pouring and repouring several times and thereafter he divided the sample into three equal parts by putting them into three clean and dry glass bottles and 40 drops of formalin were added to each sample bottle and shaken properly for 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 notice in Form VI Ex. PW 1/B and Panchnama Ex. PW1/C were also prepared at the spot and a copy of notice was also given to the accused and accused also gave his statement vide Ex. PW1/D to the effect that he is the sole proprietor of the dairy and his dairy is not CC No. 72/06 FI Vs. Dharampal Page 7 of 16 registered with the sales tax and all the aforesaid documents Ex. PW1/A to Ex.PW1/C 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 in intact condition with the PA on 29.12.2005 vide receipt Ex. PW1/E and remaining two counterparts of the sample in intact condition were deposited on the same day with the LHA vide receipt Ex. PW1/F. He further deposed that report of PA was received according to which the sample was found not conforming to the standards and during investigation accused was found proprietor of dairy from where the sample was lifted. He further deposed that after completion of investigation by him, the complete case file was sent to the Director (PFA) who accorded requisite consent for launching prosecution against the accused and accordingly he filed the present complaint and thereafter intimation letter along with PA's report was sent to the accused through registered post.
14. During his deposition, PW1 has also placed on record PA's report as Ex. PW1/G, letter sent by him during investigation to Sales Tax Office, Ward No. 78 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 FI Sh. Mittra Pal who had accompanied the Food CC No. 72/06 FI Vs. Dharampal Page 8 of 16 Inspector and was made a witness at the time of conducting the sample proceedings deposed more or less on the similar lines as deposed by PW1 in his examinationinchief regarding the sample proceedings.
16. PW3 Sh. V.P. Singh, the then SDM/LHA under whose supervision and direction, sample proceedings were conducted has also corroborated the version of PW1 in his examinationinchief and deposed on the similar lines as deposed by PW1.
17. PW1 in his crossexamination before charge admitted that if the sample is representative, reports of the Public Analyst as well as Director, CFL should be identical. In his crossexamination after charge, PW1 admitted that if the water is added in the milk, its fat contents as well as SNF will decrease proportionately. He could not say that if the cream is extracted from the milk, its fat contents will decrease but SNF will remain same. He further could not tell that if the water is added in milk, its total solids will decrease. He admitted that milk fat and milk solids not fat are added as given in the report of Director, CFL, its total will come 13.83%. He denied the suggestion that deficiency is due to nonrepresentative sample.
18. PW2 in his crossexamination admitted that if water is added in the milk then milk fat and milk solids not fat both will reduce. He denied the suggestion that the cow's milk was not properly homogenized. He stated that he cannot say if the deficiency in milk solids not fat in CFL report is due to the fact that the sample commodity was not properly homogenized.
CC No. 72/06 FI Vs. Dharampal Page 9 of 1619. PW3 in his crossexamination denied the suggestion that 67 liters of cow's milk lying in a can cannot be properly mixed/homogenized with the help of a measure. He denied the suggestion that a representative sample was not taken.
20. In his statement U/s 313 Cr.P.C., the accused has not disputed the fact that on 28.12.2005 at about 5.30 PM, he was found conducting the business of Cow's Milk at his dairy M/s Chaudhary Dairy, X/2223, Gali No. 6, Raghubar Pura I, Gandhi Nagar, Delhi, when PFA Team visited the dairy and FI Sh. Ranjeet Singh lifted the sample of Cow's Milk from him for analysis, which on being analyzed by the Public Analyst as well as Director, CFL was found not conforming to the standards as milk solids not fat was less than the prescribed minimum limit. However, it was contended by the accused that deficiency found in the sample commodity was due to bad sampling as milk was not properly homogenized before taking the sample.
21. The present complaint has been launched against the accused on the basis of Public Analyst's (PA) report dated 19.01.2006 which has been proved on record as Ex. PW1/G. The Public Analyst vide its report Ex. PW1/G found the sample lifted from the accused not conforming to the standards as 'milk solids fat' was found less than the minimum prescribed limit of 8.5%. The accused on appearing exercise his right U/s 13 (2) of PFA Act and accordingly second counterpart of the sample was sent to the Director, CFL, Pune who also vide his certificate dated 15.05.2006 found CC No. 72/06 FI Vs. Dharampal Page 10 of 16 the 'milk solids not fat' less than the prescribed minimum limit of 8.5% and opined that sample doest not conform to the standards of Cow's Milk.
22. From the aforesaid crossexamination of PWs and statement recorded u/s 313 Cr.P.C., the defence of the accused 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 and deficiency found in the sample was due to bad sampling on the part of the Food Inspector.
23. It is evident from the report of Director, CFL which supersedes the report of Public Analyst that only shortfall in the sample of Cow's Milk was in respect of 'milk solids not fat' which was found to be 8.26% 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.
24. Similarly, in Sakeel Vs. State of Haryana 2008 FAJ (506) (P&H), the analyst reported the sample adulterated as milk solid not fat CC No. 72/06 FI Vs. Dharampal Page 11 of 16 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.
25. The facts of the present case are squarely covered under the aforesaid authorities. In the present case also, as per report of Director, CFL the 'milk solids not fat' of the sample commodity of Cow's Milk was found to be 8.26% as against the minimum requirement of 8.5% and the 'milk fat' was found to be 5.57% as against the prescribed minimum limit of 3.5% and if percentage of both 'milk fat' and 'milk solids not fat' are added, the total solid comes to 13.83% which is more than the prescribed limit of 12%. 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 solids are more than the prescribed requirement.
26. Not only this, it is also evident that there is only a marginal deficiency in 'milk solids not fat' which was found 8.26% against the prescribed minimum limit of 8.5% and the difference came to only 0.24% 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 CC No. 72/06 FI Vs. Dharampal Page 12 of 16 analysis cannot be ruled out."
27. In the present case also, since there is a marginal deficiency of .24% in 'milk solids not fat' in the sample commodity, it is possible that there may be error of judgment in the analysis by the Director, CFL and for this reason also, the accused is liable to be given benefit of doubt.
28. It is also evident from the report of Public Analyst (PA) Ex. PW1/G as well as Director, CFL that 'Gerber' method has been applied by both the Analysts to detect the milk fat content of the sample. In Corporation of the City of 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.
29. In the present case, apart from the Gerber method, no other method has been applied by both the Analysts to detect the fat content in the sample and the Gerber method of analysis being not of assured quality and accuracy, the report of both the Analysts cannot be relied upon.
30. It is also to be noted that though in the present case, both the Public Analyst as well as Director, CFL found the sample of 'Cow's Milk' lifted from accused adulterated on account of deficiency in respect of 'milk solid not fat', but perusal of report of both the Analysts shows that both the reports are at variance to each other in respect of 'milk solids not fat'. As CC No. 72/06 FI Vs. Dharampal Page 13 of 16 per report of Public Analyst Ex. PW1/G, 'milk solids not fat' was 7.01% as against the minimum requirement of 8.5%, while it was 8.26% as per report of Director, CFL and there is variation upto 1.25%.
31. The aforesaid variation in the report of both the Analysts is beyond the permissible limit of .3% and it lends credence to the contention of the accused that the sample was not properly mixed up and hence it cannot be said to be representative sample. In State Vs. Rama Rattan Malhotra 2012 (2) FAC 398 after relying upon various judgments titled as Kanshi Nath Vs. State 2005(2) FAC 219 and State Vs. Mahender Kumar & Ors, 2008 (1) FAC 177, the Hon'ble High Court of Delhi held that, "Since in the present case, variation in public analyst and CFL certificates is more than .3%, it would clearly imply that samples in the present case were not representative.". In Kanshi Nath Vs. State (Supra) even while certain other contentions of the accused were rejected, the contention concerning the samples sent to the two test labs not being representative was accepted and the accused were acquitted. In this judgment after referring to the judgment of Calcutta Municipal Corporation Vs. Pawan Kumar Saraf 1999(1) FAC 1 and Municipal Corporation of Delhi Vs. Bishan Sarup 1972 FAC 273, the Hon'ble Delhi High Court has observed that, "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 finding and in the background of the law which is well settled, no conviction can be CC No. 72/06 FI Vs. Dharampal Page 14 of 16 sustained". In State Vs. Mahender Kumar & Ors. (Supra) it has been observed that, " While both reports have concurred in the conclusion that the sample was adulterated, the variation in the material parameters in the sample sent to each of them is not insignificant. In the sample sent to the Public Analyst the ash content is 4.04% whereas in the sample sent to the CFTRI it is 6%. The ash insoluble in dilute HCL is 2.55% in the sample sent to the Public Analyst whereas it is 1.95% in the sample sent to the CFTRI. The lead content is Nil in the first and 5.4 ppm in the second. These variations are more than y.3% which is stated to be the permissible limit. It cannot therefore be said that identical representatives samples were sent to both the Public Analyst as well as the CFTRI".
32. Similarly, It has been held by the Hon'ble Delhi High Court in M/s Raja Ram Seth & Sons & Anr. Vs. Delhi Administration 2012 (2) FAC 523 that, "If the variations in the report of PA and CFL is more than 0.3 % which is stated to be permissible limit, it cannot be said that identical representative samples were sent to both the Public Analyst and CFL and therefore it raises a doubt about the sample of being not homogenized and no conviction is permissible on the basis of said reports and benefit of doubt is liable to be given to the accused." Similar view has been taken by the Hon'ble High Court of Delhi in State (Delhi Administration) Vs. Ram Singh & Ors. 2009 (1) FAC 371. Reliance may also be placed upon State Vs. Suresh Kumar & Anr. 2010 (2) FAC 204.
33. In view of above reasons and discussions, I am of the considered opinion that the prosecution has failed to prove its case against CC No. 72/06 FI Vs. Dharampal Page 15 of 16 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 November, 2013 ACMMII/ PHC/ New Delhi
CC No. 72/06
FI Vs. Dharampal Page 16 of 16
CC No. 72/06
DA Vs. Dharampal
18.11.2013
Present: Sh. Masood Ahmad, Ld. SPP for complainant.
Accused with counsel Sh. M.L. Narang.
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. He has furnished the B/B & S/B in the sum of Rs. 20,000/ each. Same is accepted.
File be consigned to Record Room.
(Balwant Rai Bansal) ACMMII/PHC/ND/18.11.2013 CC No. 72/06 FI Vs. Dharampal Page 17 of 16