Delhi District Court
Fi vs . Ram Prakash @ Matadin Page 1 Of 13 on 6 April, 2013
IN THE COURT OF SHRI BALWANT RAI BANSAL
ADDITIONAL CHIEF METROPOLITAN MAGISTRATEII,
PATIALA HOUSE COURTS, NEW DELHI
C.C. No. 167/06
Food Inspector
Department of PFA
Govt. of NCT of Delhi
A20, Lawrence Road
Indl. Area, Delhi - 35
................ Complainant
Versus
Sh. Ram Prakash @ Matadin
S/o Late Sh. Shree Chand
M/s Parkash Milk Products,
Shop No. 5/18, Subhash Nagar,
New Delhi27.
R/o Back Side of Shop 5/18,
Subhash Nagar, New Delhi27.
........ VendorcumProprietor
CC No. 167/06
FI Vs. Ram Prakash @ Matadin Page 1 of 13
COMPLAINT U/S 16 OF THE PREVENTION OF FOOD
ADULTERATION ACT, 1954
Serial number of the case : 167/06
Date of the commission of the offence : 28.04.2006
Date of filing of the complaint : 13.07.2006
Name of the Complainant, if any : Shri S.K. Sharma,Food Inspector
Offence complained of or proved : Violation of Section 2 (ia) (a) &
(m) of PFA Act 1954; punishable
U/s 16 r/w S. 7 of PFA Act 1954.
Plea of the accused : Pleaded not guilty
Final order : Acquitted.
Arguments heard on : 05.04.2013.
Judgment announced on : 06.04.2013.
J U D G M E N T
1. The present complaint has been filed on 13.07.2006 by the Delhi Administration through FI Sh. S.K. Sharma against the accused Sh. Ram Prakash@Matadin. It is stated in the complaint that on 28.04.2006 at about 6:00 PM, FI Sh. S.K. Sharma purchased a sample of Toned Milk, a food article for analysis from Sh. Ram Prakash S/o Late Sh Shree Chand of M/s Parkash Milk Products, who was found conducting the business of CC No. 167/06 FI Vs. Ram Prakash @ Matadin Page 2 of 13 the said food article. FI Sh, S.K. Sharma purchased 1500 ml of Toned Milk, taken from an open drum having no label declaration. The sample was taken after proper homogenization with the help of a clean and dry plunger by rotating it in all possible directions under the supervision and direction of Shri B.M. Jain, SDM/LHA. Thereafter, the sample was divided into three equal parts by putting it in three clean and dry glass bottles and 40 drops of liquid 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 28.04.2006. Panchnama was also prepared at the spot. All these documents prepared by FI Sh. S.K. Sharma were signed by accused Sh. Ram Prakash, the vendor and the other witness namely Sh. Om Prakash, 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. Om Prakash, FA joined as witness.
2. It is further stated that one counterpart of the sample bearing LHA code No. 93/LHA/15106 in intact condition was sent to the Public CC No. 167/06 FI Vs. Ram Prakash @ Matadin Page 3 of 13 Analyst, Delhi and two counterparts of the sample in intact conditions were deposited with LHA. The Public Analyst analysed the sample and opined that "the sample does not conform to standards because milk solids not fat is less than the prescribed minimum limit of 8.5%".
3. It is further stated that Sh. Ram Prakash@ Matadin S/o Late Sh. Shree Chand was the VendorcumProprietor of M/s Parkash Milk Products and he being the incharge of the said shop was 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 provisions of Section 2 (ia) (a) & (m) of the PFA Act, 1954 which is punishable U/s 16 (1) (a) r/w S. 7 of the Act.
4. The accused was summoned vide order dated 13.07.2006. On appearing, the accused did not exercise the right under section 13(2) of PFA Act to get analyzed the second counterpart of the sample from Central Food Laboratory.
5. Thereafter, Notice for violation of provisions of Section 2 (ia)
(a) & (m) of the PFA Act, punishable U/s 16 r/w S. 7 of PFA Act 1954 was framed upon the accused vide order dated 05.05.2008 to which the accused pleaded not guilty and claimed trial.
CC No. 167/06 FI Vs. Ram Prakash @ Matadin Page 4 of 13
6. Thereafter, the prosecution examined three witnesses namely Sh. S.K. Sharma, as PW1, Shri Om Prakash, Field Assistant as PW2 and Shri B.M. Jain, Deputy Secretary Home, GNCT of Delhi as PW3 and PE was closed vide order dated 03.09.2011.
7. Statement of accused U/s 313 Cr.P.C. was recorded on 03.12.2011 wherein accused claimed himself to be innocent and opted for to lead evidence in his defence. However, accused did not lead any evidence in his defence and DE was closed vide order dated 20.04.2012
8. I have heard the Ld. Counsel for the parties and perused the record carefully.
9. The present complaint has been launched against the accused on the basis of Public Analyst (PA) report dated 12.05.2006. Perusal of same reveals that sample did not conform to standard because milk solids not fat was less than the prescribed minimum limit of 8.5%. The accused has not at any point of time moved an application U/s 13 (2) of PFA Act for getting the second counterpart of the sample analyzed by the Director, Central Food Laboratory (CFL).
10. The Ld. Counsel for the accused has argued that the sample was not properly homogenized before taking the sample which resulted reduce in 'milk solids not fat' in the sample commodity. He has further CC No. 167/06 FI Vs. Ram Prakash @ Matadin Page 5 of 13 argued that the 'Gerber' method which has been applied by the Public Analyst to analyze the sample commodity is not a sure test. He has further argued that there is no compliance of Section 13 (2) of the Act by the prosecution and thus accused has been deprived from statutory right of getting the sample analyzed by the Central Food Laboratory. To fortify his arguments he has placed reliance on various case law titled as Ishwar Singh Vs. State of Haryana Cr. Rev. No. 494 of 1986., Corporation of the City of Nagpur Vs. Neetam Manikrao Kature and Others., and Raghubir Vs. State of U.P. Crl. Appeal No. 994 of 1985.
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 intimation of filing the present complaint along with the report of Public Analyst was duly served upon the accused through registered post as well personally through FI as prescribed U/s 13 (2) of the Act but the accused deliberately did not exercise his right to get the second counterpart of the sample analyzed by the Central Food Laboratory. He has further argued that even if the accused has not been served with the intimation letter, still he could have filed the application U/s 13 (2) of the Act to get the sample analyzed by the CFL, but the accused has not done so.
12. All the three witnesses examined by the prosecution have deposed CC No. 167/06 FI Vs. Ram Prakash @ Matadin Page 6 of 13 more or less as per the averments made in the complaint and substantiated the averments.
13. PW1 Sh. S.K. Sharma who is the complaint in the present case has deposed in his examinationinchief that on 28.04.2006, he alongwith FA Shri Om Prakash, under the supervision and directions of SDM / LHA Shri B.M. Jain visited the premises of M/s Parkash Milk Products, 5/18, Subhash Nagar, Delhi, where accused was found conducting the business of the said shop. He has further deposed that he purchased 1500 ml of Toned milk, taken from an open drum bearing no label declaration on payment of Rs. 22.50/ vide vendor's receipt Ex. PW1/A. He has further deposed that sample was taken after proper homogenization the Toned milk with the help of a clean and dry plunger by rotating it in all possible directions several times and the then he divided the same into three equal parts by putting them in three clean and dry glass bottles. He further deposed that notice was prepared at the spot and same was given to accused which is Ex. PW1/B and panchnama was also prepared at the spot which is Ex. PW1/C. He further deposed that all the documents Ex. PW1/A to Ex. PW1/C prepared on the spot were read over and explained to the accused who after understanding the same signed the same. He has also deposed that the accused had furnished his statement Ex PW 1/D disclosing himself CC No. 167/06 FI Vs. Ram Prakash @ Matadin Page 7 of 13 to be the sole proprietor of the shop in question and that his shop was not registered with any government department. He has also deposed that two counterparts of the sample in a sealed packet were deposited in intact condition with LHA on 01.05.2006 vide receipt Ex. PW1/E and one counterpart of the sample has already been deposited in intact condition with PA vide PA receipt Ex. PW1/F and PA report is Ex. PW1/G according to which the sample does not conform to the standards as the milk solids not fat were less than the prescribed minimum limit of 8.5%.
14. PW2 Sh. Om Prakash, Field Assistant who was made a witness at the time of conducting the sample proceedings by PW1 FI Sh. S.K. Sharma has corroborated the version of PW1 in his examinationinchief.
15. PW3 Sh. B.M. Jain, SDM/LHA under whom supervision the sample proceedings were done has also deposed on the same lines as deposed by PW1 & PW2 in their examinationinchief.
16. PW 1 in his crossexamination has deposed that he had homogenized the milk with the help of clean and dry plunger which was brought by him and the same was issued to him by the department. He denied the suggestion that he had not used the plunger or milk was not homogenized. He has further deposed that milk was poured in the steel jug of about 2 litres.
CC No. 167/06 FI Vs. Ram Prakash @ Matadin Page 8 of 13
17. PW 3 SDM / LHA Shri B.M. Jain has deposed in his cross examination that the milk was mixed by the FI with the help of 1 litre measure. He has further deposed that the measure was provided by the vendor which was lying in the drum at that time. He denied the suggestion that the sample commodity was neither mixed with the help of a measure or plunger.
18. In the statement U/s 313 Cr.P.C, the accused has admitted that he was found present conducting business of food article i.e. Toned Milk at M/s Parkash Milk Products, Shop No. 5/18, Subhash Nagar, New Delhi. He has taken a defence that the FI did not homogenize the sample commodity before taking the sample and put the sample into bottles directly from the drum. He has also taken a defence there is deficiency in milk solids not fat as the method adopted by the FI to lift the sample was not a proper one.
19. From the Report of PA, it is evident that the only shortfall was in milk solids not fat, which was to the tune of 6.85% against the minimum requirement of 8.5%. PW1 Shri S.K. Sharma, who is the complainant in the present case has affirmed in his crossexamination that the sample commodity was properly homogenized with the help of a clean and dry plunger which was brought by him himself whereas, PW3 in his cross CC No. 167/06 FI Vs. Ram Prakash @ Matadin Page 9 of 13 examination has deposed that the milk was mixed by the FI with the help of 1 litre measure lying in the drum at that time and not plunger, which is totally contradictory to each others' statements. If it is believed on the testimony of PW3 that the milk was mixed with the help of a measure it is not possible to mix the entire contents of the drum upto the bottom and thus it was not a proper method of mixing the sample commodity. In Ishwar Singh Vs. State of Haryana (supra) has held that, "Even if the cow milk is taken out of the drum with the help of a milk measure and repoured, in order to stir it, it is not likely that the entire contents of the drum upto the depth of its bottom will be stirred in such process. On the other hand, it will amount to blowing the milk which in turn would result in accummulation of the cream or fatty solids towards the top of the container".
20. So far as the contention of the accused that the Gerber method is not a sure test, in Corporation of the City of Nagpur Vs. Neetam Manikrao Kature and Others after relying upon a case law titled as State of Maharashtra Vs. Narayan Dewlu Shanbhag has held 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. The Public analyst however followed Gurber's method CC No. 167/06 FI Vs. Ram Prakash @ Matadin Page 10 of 13 and on the basis of such report the prosecution case was initiated. In that view of the matter the High Court did not intend to interfere with the order of acquittal.".
21. The accused has also raised a plea that he has been deprived of statutory right of getting the second counterpart of the sample analyzed by the Central Food Laboratory and he has not been served with the intimation of PA's report as required U/s 13 (2) of the PFA Act.
Section 13 (2) of the PFA Act reads as under:
"On receipt of the report of the result of the analysis under subsection (1) to the effect that the article of food is adulterated, the Local (Health) Authority shall, after the institution of prosecution against the persons from whom the sample of the notice article of food was taken and the person, if any, whose name, address and other particulars have been disclosed under Section 14A, forward, in such manner as may be prescribed, a copy of the report of the result of the analysis to such person or persons, as the case may be, informing such person or persons that if it is so desired, either or both of them may make an application to the court within a period of ten days from the date of receipt of the copy of the report to get the sample of the article of food kept by the Local (Health) Authority analyzed by the Central Food Laboratory."
22. PW1 FI S.K. Sharma stated in his examinationinchief that intimation letter Ex. PW1/M along with the PA report bearing the signature of LHA was sent by LHA to the accused by registered post which CC No. 167/06 FI Vs. Ram Prakash @ Matadin Page 11 of 13 was received back undelivered with the report 'unclaimed'. He has further deposed that he has personally served the intimation letter alongwith the PA upon the accused vide Ex. PW 1/M, bearing endorsement of the accused at point A to A. However, perusal of the intimation letter EX. PW 1/M revealed that the same was personally served to the accused on 18.08.2006 i.e. after about 4 months from the lifting of the sample commodity. It is pertinent to mention herein that the sample commodity in question is a perishable item and the shelf life of the same even after adding Formalin therein is about maximum 4 months and thus this would not have been a fruitful exercise to get analyzed the second counterpart of the sample from Central Food Laboratory because at that time the sample would not have remained fit for analysis. The onus was upon the prosecution to supply intimation letter along with the PA report well in time so that the accused may exercise his right under section 13(2) of PFA Act. Therefore, it cannot be said that the prosecution has complied the provisions of Section 13 (2) of the Act and thus the accused has been deprived of statutory right of getting the second counter part of the sample analyzed by the Central Food Laboratory. In Raghubir Vs. State of U.P. (Supra), it has been observed that, "Sample of milk takenfound adulteratedinordinate delay in launching prosecutiondeprivation of right underthe prosecution in this CC No. 167/06 FI Vs. Ram Prakash @ Matadin Page 12 of 13 case was launched more than seven months after the taking of sample of food article. If the sample kept at room temperature with preservative added in it, the percentage of fat and nonfatty solid contents for the purpose of analysis will be retained for about four months and in case it is kept in refrigerator the total period available for making analysis without decomposition will be six months. Section 13(2) of the Act confers a valuable right on the vendor and to avail that opportunity the prosecution has to proceed in such manner that the vendor is not deprived of the said right."
23. In view of aforesaid discussion and observations, I am of the considered view that the accused is liable to be acquitted. Accordingly, the accused is acquitted from the charges leveled against him.
File be consigned to Record Room.
Announced in the open Court (Balwant Rai Bansal)
on 6th April, 2013 ACMMII/ PHC/ New Delhi
CC No. 167/06
FI Vs. Ram Prakash @ Matadin Page 13 of 13
CC No. 167/06
DA Vs. Ram Parkash
06.04.2013
At 3:30 PM
Present: Sh. Masood Ahmad, Ld. SPP for complainant.
Accused with the counsel Sh. R.D. Goel.
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/. The same is accepted.
File be consigned to Record Room.
(Balwant Rai Bansal) ACMMII/PHC/ND/06.04.2013 CC No. 167/06 FI Vs. Ram Prakash @ Matadin Page 14 of 13