Delhi District Court
Da vs . Jitender Bhati Etc. Page 1 Of 13 on 22 November, 2014
IN THE COURT OF GAURAV RAO
ADDITIONAL CHIEF METROPOLITAN MAGISTRATEII,
PATIALA HOUSE COURTS, NEW DELHI
C.C. No. 1925/09
COMPLAINT U/S 16 OF THE PREVENTION OF FOOD ADULTERATION ACT, 1954
Food Inspector
Department of PFA
Govt. of NCT of Delhi
A20, Lawrence Road
Indl. Area, Delhi - 35
........ Complainant
Versus
1.Jitendra Bhati S/o Sh. Nepal Singh Bhati M/s Public Dairy C1/1, Nehru Vihar, Dayal Pur, Delhi110094 R/o C1/1 Nehru Vihar, Dayal Pur, Delhi110094 ..........VendorCumProprietor
2. Lavlesh Kumar S/o Sh. Ram Rich Pal M/s Param Dairy Ltd, Param Tower, 1/5B, Pusa Road, New Delhi110005.
CC No. 1925/09 DA Vs. Jitender Bhati etc. Page 1 of 13 R/o X1980, Street No. 7, Raj Garh Colony Extension Delhi110031 ........Nominee of accused no. 4 for its Sales unit
3. Umesh Aggarwal S/o Sh. Ramavtar Aggarwal M/s ParamDairy Ltd, Param Nagar, GT Road Khurja, Bulandsahar (UP) R/o H. No. 714, Devi Pura, Bhawan Mandir Bulandsahar (UP) ......Nominee of accused no. 4 for its manufacturing unit
4. M/s Param Dairy Ltd, Sales OfficeParam Tower, 11/5B, Pusa Road, New Delhi110005 Manufacturing Unit Param Nagar, GT Road Khurja, Bulandsehar (UP) .............Manufacturing /Marketing Company.
Serial number of the case : 1925/09 Date of the commission of the offence : 08.06.2009 Date of filing of the complaint : 09.09.2009 CC No. 1925/09 DA Vs. Jitender Bhati etc. Page 2 of 13 Name of the Complainant : Sh. Ranjeet Singh, Food Inspector Offence complained of or proved : Section 2 (ia) (a) & (m) of PFA Act 1954, punishable U/s 16(1) (a) r/w section 7 of the PFA Act. Plea of the accused : Pleaded not guilty Final order : All Accused Acquitted Arguments heard on : 22.11.2014 Judgment announced on : 22.11.2014 Brief facts of the case
1. In brief the case of the prosecution is that on 08.06.2009 at about 07.15 a.m. Food Inspector Ranjeet Singh and Field Assistant Sh. Bhopal Singh under the supervision and directions of SDM / LHA Sh. A. K. Sharma visited M/s Public Dairy, C1/1, Nehru Vihar, Dayal Pur, Delhi110094, where accused no. 1 Jitendra Bhati who was the VendorCumProprietor was found present conducting the business of sale of various dairy articles including Full Cream Milk stored in sealed polythene packets of 500 ML for sale for human consumption and in compliance of the provisions of the Prevention of Food Adulteration Act, 1954 and the Prevention of Food Adulteration Rules, 1955, the Food Inspector collected / purchased the sample of Full Cream Milk.
2. During the course of investigation it was revealed that sample commodity was manufactured by accused no. 4 i.e. M/s Param Dairy of which accused no. 2 Lavlesh Kumar was the nominee of Sales Unit and accused no. 3 Umesh Aggarwal was the nominee of Manufacturing Unit and therefore incharge of and responsible for CC No. 1925/09 DA Vs. Jitender Bhati etc. Page 3 of 13 day to day conduct of its business.
3. It is further the prosecution's case that the sample was sent to Public Analyst for analysis and as per the report of Public Analyst the sample was founc not conformingto standard because milk fat and milk solids not fat were less than the prescribed minimum limit of 6.0% and 9.0%, respectively and accordingly after obtaining the necessary Sanction / Consent under Section 20 of the Act the present complaint was filed for violation of provisions of Section 2 (ia) (a) & (m) of PFA Act 1954 punishable U/s 16 (1) (a) r/w Section 7 of the Act.
4. After the complaint was filed, accused persons were summoned vide orders dated 09.09.2009. Accused no. 04 after filing appearance moved an application under Section 13(2) of PFA Act to get analyzed the second counterpart of the sample from Central Food Laboratory and consequent thereto second counterpart of the sample as per the choice of the accused was sent to Director, CFL (Pune) for its analysis vide orders dated 22.10.2009. The Director, CFL after analysing the sample opined vide its Certificate dated 05.11.2009 that " sample contains Milk Fat less than 6.0% & hence does not conform to the standards of Full Cream Milk as per PFA Rules 1955 as per tests performed".
5. Notice for violation of provision of Section 2 (ia) (a) & (m) of PFA Act 1954 punishable U/s 16 (1) (a) r/w section 7 of the Act was framed against all the CC No. 1925/09 DA Vs. Jitender Bhati etc. Page 4 of 13 accused persons vide orders dated 05.03.2010 to which all the accused persons pleaded not guilty and claimed trial.
6. The complainant/prosecution examined three witnesses i.e. FI Ranjeet Singh as PW1, Sh. A. K. Sharma the then SDM/LHA as PW2 and FA Bhopal Singh as PW3 and thereafter PE was closed vide orders dated 11.01.2012.
7. Statement of the accused persons U/s 313 Cr. P.C. were recorded on dated 01.05.2013 and 24.10.2013 wherein the accused persons claimed themselves to be innocent. Despite opportunity given accused persons did not examine any witness in their defence.
A brief scrutiny of the evidence recorded in the matter is as under:
8. PW1 Sh. Ranjeet Singh deposed that on 08.06.09 he along with FA Bhopal Singh and other staff under the supervision and direction of SDM/LHA, Sh. A. K. Sharma went to M/s Public Dairy, C1/1, Nehru Vihar, Dayalpur, Delhi, where accused Jitendra Bhati was found conducting the business of food article including full cream milk, ready for sale for human consumption. He deposed that they disclosed their identity and intention for taking the sample of full cream milk in sealed packets of 500 ml bearing identical label declaration, for analysis to which accused/vendor agreed. He deposed that before starting the sample proceedings, he tried his best to CC No. 1925/09 DA Vs. Jitender Bhati etc. Page 5 of 13 procure some public witnesses by requesting some neighboring shopkeepers, customers and passersby etc to join the sample proceedings but as none agreed for the same, on his request FA Bhopal Singh agreed and joined as witness. He deposed that then at about 7.15 am, he purchased 3X 500 ml sealed poly packets of full cream milk bearing identical label declaration on payment of Rs. 39/ vide receipt Ex. PW1/A. He deposed that firstly, three sealed poly packets were allowed to rest at room temperature for more than half an hour and then poly packets were shaken properly and cut open from one corner and then put into a clean and dry steel jug and then milk was poured and re poured with the help of other clean and dry jug. He deposed that then he divided the sample into three equal parts by putting them in three clean and dry glass bottles separately. He deposed that 40 drops of formalin were added to each sample bottle with the help of a clean and dry glass dropper and shaken properly for its proper mixing. He deposed that each sample bottle containing the sample of full cream milk were then separately packed, fastened, marked and sealed according to PFA Act and Rules. He deposed that LHA Slip bearing code number and signature was affixed on all the three counter parts of the bottle. He deposed that then the vendor signatures were obtained on LHA Slip in such a manner that a portion of his signature were on the wrapper as well as on the LHA Slips. He deposed that then Notice in Form VI Ex. PW1/B was prepared at the spot and copy of it was given to the accused as per his endorsement at portion A to A bearing his signature at point A. He deposed that vendor also made endorsement on Ex PW1/B that he purchased the sealed polypackets of full cream milk from salesman of Param CC No. 1925/09 DA Vs. Jitender Bhati etc. Page 6 of 13 Dairy Ltd, Param Tower, 11/5B, Pusa Road, New Delhi, and would produce the Bill later on. He deposed that accordingly, a Notice u/s 14A Ex. PW1/D addressing to Param Dairy Ltd, Param Tower, 11/5B Pusa Road, New Delhi was also prepared at the spot and same was sent through the registered post on the next working day. He deposed that Panchnama Ex. PW1/C was prepared. He deposed that Raid Report under Rule 9(e) Ex. PW1/C1 was also prepared at the spot. The wrapper along with the empty pouches were produced as Ex. P1 and Ex. P2. He deposed that all these documents Ex. PW1/A to Ex. PW1/D were read over and explained to the vendor in Hindi and after understanding the same vendor signed at point A and witness signed at point B and he signed at point C respectively. He deposed that the one counter part of the sample was deposited in intact condition with the PA on 09.06.09 i.e next working day vide receipt Ex. PW1/E along with one copy of Memo in Form VII in a sealed packet and another copy of Memo Form VII in a separately sealed envelope. He deposed that the two counter parts of the sample along with two copies of memo of Form VII in a sealed packet were deposited in intact condition with the LHA on 09.06.09 vide receipt Ex. PW1/F bearing his signature at point A with the intimation that one counter part of the sample has already been deposited in intact condition with the PA. He deposed that all the copies of memo of Form VII bore the same seal impression with which the sample in question was sealed. He deposed that the PA Report Ex. PW1/G was received according to which the sample was found non conforming to standard, as mentioned therein at portion X. He deposed that during investigation, he sent a letter Ex. PW1/H to vendor and received reply Ex. PW1/H1 CC No. 1925/09 DA Vs. Jitender Bhati etc. Page 7 of 13 along with copy of bill of purchase mark 'X'. He deposed that he also sent a letter Ex. PW1/I to STO, Ward No. 74 to disclose the constitution of Param Dairy Ltd and received reply Ex. PW1/I that no such dairy was found registered with the Sales Tax. He deposed that he also sent a letter Ex. PW1/J to M/s Param Dairy Ltd and received reply Ex. PW1/J1 whereby they conformed the sale to the vendor, and gave the names of Directors and copy of Form VIII of their nominee for manufacturing unit at Khurja, namely, Umesh Aggarwal i.e Ex. PW1/J2, along with copy of Resolution mark Y and Sh. Lavlesh Kumar is their Nominee for their sale unit Ex. PW1/J3. He deposed that he also sent a letter Ex. PW1/K to STO, Ward No. 44 to disclose the constitution of M/s Param Dairy Ltd and as per reply at portion A, Sh. Rajeev Kumar was the Managing Director of the said dairy. He deposed that on completion of the investigation by him, the complete case file along with all statutory documents were sent through LHA to the Director (PFA), Sh. Mohan Lal, who after going through the case file, applied his mind and gave his consent for prosecution Ex. PW1/L bearing his signature at point A. He deposed that the complaint Ex. PW1/M was filed in Court by him bearing his signature at point A. He deposed that the intimation letter Ex. PW1/N along with the PA report was sent to accused persons by registered post through LHA which were not received back undelivered. He deposed that the postal registration receipt copy is Ex. PW1/O bearing the relevant entry at portion A.
9. During his cross examination by counsel for accused no. 1 he stated that vendor made endorsement on Notice in Form VI in respect of purchase of sample CC No. 1925/09 DA Vs. Jitender Bhati etc. Page 8 of 13 packets. He stated that sample packets were duly sealed and not tempered with in any manner. He stated that sealed packets of full cream milk were lying in a plastic carat. He stated that jugs were provided by the vendor. He stated that clean and dry jugs were provided by the vendor as such same were not made again clean and dry at the spot. He stated that sample packets were not heated but were brought at room temperature. He denied the suggestion that procedure of lifting the sample was wrong that is why there is variation between two reports. He denied the suggestion that fat was sticking with the pouches. He stated that at the time of sampling , vendor was not having bill of purchase. He stated that vendor gave the copy of bill of purchase after a period of one and half months along with his reply during investigation. He stated that bill mark X was dated 08.06.09. He stated that original bill was not given by the vendor till date. He stated that he has mentioned the procedure of sampling correctly in the Notice in Form VI. He stated that he mentioned on the Notice in Form VI that firstly pouches were shaken and then allowed to rest at room temperature. He stated that the contents of the Notice in Form VI and his statement given today, both are correct as he shook the packets again after allowing them to rest at room temperature. He admitted that he had not mentioned in the Notice in Form VI, after allowing the packets to rest at room temperature, same were again shaken. He stated that original label of the sample commodity or its copy was not sent to the PA. He stated that he had sent the contents of the label of the Notice in Form VII to PA, therefore, he denied the suggestion that he violated the proviso of Rule 22 of PFA Rules. He admitted that the PA had not mentioned the contents of the CC No. 1925/09 DA Vs. Jitender Bhati etc. Page 9 of 13 label in her report. He stated that he had mentioned on the Panchnama that the sample packets were taken into possession but no separate seizure memo was prepared. He denied the suggestion that sample packets were not sealed at the spot but only taken into possession. He stated that he had not mentioned in the Notice in Form VI, how many times the milk was poured and repoured. He denied the suggestion that milk was poured and repoured only one time. He voluntarily stated that he poured and repoured the milk 56 times. He denied the suggestion that a representative sample was not taken that is responsible for vast variation. He stated that as per bill mark X sale was made from Delhi Office. He denied the suggestion that Sh. Umesh Aggarwal has been wrongly prosecuted.
10. PW2 Sh. A. K. Sharma, the then SDM/LHA and PW3 Sh. Bhopal Singh have deposed on the same lines as deposed by PW1 in his examination in chief.
11. This so far is the prosecution evidence in the matter.
12. I have heard the arguments advanced at bar by the Ld. defence counsel as also the Ld. SPP for complainant. I have also carefully gone through the evidence recorded in the matter and perused the documents placed on record by the prosecution in this case.
13. At the outset it was argued by Ld. Defence counsel Sh. M.K. Gupta and CC No. 1925/09 DA Vs. Jitender Bhati etc. Page 10 of 13 Sh. R.K. Sharma that the present case is covered by the judgment passed by the Hon'ble Apex Court in Corporation of City of Nagpur Vs. Neetam Manikraro Kature & Anr. 1998 SCC (Cri) 564 . It was argued that the Director, CFL used Gerber method which is not a sure/accurate test and accordingly no reliance can be placed upon the Director's report and accused deserves to be acquitted on this ground alone.
14. Perusal of the records reveals that to establish its case of adulteration i.e. that the sample of milk was not conforming to the standards the prosecution is relying upon the report of Director, CFL dated 05.11.2009 who had reported that the sample of full cream milk does not conform to the standards as the milk fat were less than the prescribed minimum limit of 6.0% . However as per the report of the Director, CFL, he used the Gerber method for the purpose of analyzing the sample of full cream milk so collected by the Food Inspector. It is reflected in his report that he used I.S. 1224 Part I 1977 for the purpose of calculating the percentage of milk fat in the sample of full cream milk so analyzed and thereafter By difference calculated the contents of the milk solids not fat in the sample of full cream milk. This is Gerber method as has been fairly conceded by Ld. SPP. The said method is not a sure/accurate test for the purpose of analysis of food article/ milk so as to give a finding/report regarding the milk fat and milk solids not fat in sample of milk as held by the Hon. Apex Court in Corporation of City of Nagpur Vs. Neetam Manikraro Kature & Anr. 1998 SCC (Cri) 564. The Hon. Apex Court observed as under:
CC No. 1925/09 DA Vs. Jitender Bhati etc. Page 11 of 13
".......The High Court has indicated that although the Bombay High Court in State of Maharashtra V. Narayan Dewlu Shanbhag held that Gurber's method of analysis of the quality of food substance was not of assured quality and accuracy and such method was not certified by the Indian Standard Institute. The public analyst however followed Gurber's method 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. In our view, the High Court has taken a reasonable view and interference by this Court is not warranted. The appeal, therefore, fails and dismissed accordingly."
15. Reliance may also be placed upon State of Maharashtra Vs. Narayan Dewlu Shanbhaju (1979) 3 Cr LR 117 (Bombay), G.K. Upadhayay Vs. Kanubhai Raimalbhai Rabari and another 2009 (1) FAC 499 and Keshubhai Ranabhai Tukadiya Vs. State of Gujarat 2009 (1) FAC 565.
16. In view of the above as the Director used the Gerber method no reliance can be placed upon the report for the purpose of concluding whether the sample of full cream milk so collected was adulterated or not. Though Ld. SPP for the complainant argued that the Gerber method is a prescribed method in DGHS Manual and is a valid and accurate test and in fact it is the most widely used test all over the world for the purpose of analysis of food article/milk to find out the percentage of the milk fat and the same is also certified by Indian Standards Institute from time to time however in view of the above ruling of the Hon. Supreme Court and failure on the part of the Ld. SPP to distinguish the said ruling I find no merits in his contention. CC No. 1925/09 DA Vs. Jitender Bhati etc. Page 12 of 13
17. Accordingly in view of my above discussion and the law laid down inCorporation of City of Nagpur Vs. Neetam Manikraro Kature & Anr. 1998 SCC (Cri) 564 all the accused persons stand acquitted of the charges in the present case.
18. I order accordingly.
Announced in the open Court (Gaurav Rao) on 22nd November 2014 ACMMII/ New Delhi CC No. 1925/09 DA Vs. Jitender Bhati etc. Page 13 of 13