Delhi District Court
R/O 1888 vs The State (Delhi Administration) on 28 May, 2012
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IN THE COURT OF MS. NEENA BANSAL KRISHNA :
ADDITIONAL SESSIONS JUDGE-01 : NEW DELHI
In re :
CA No. 33/12
Sachin Mittal,
S/o Sh. Rajender Prasad,
M/s Rajender Prasad & Sons,
6003, Nayan Bans, Delhi-06
R/o 1888, Kucha Challan,
Delhi-110006. ..... Petitioner
versus
The State (Delhi Administration)
PFA Department,
A-20, Lawrence Road Indl. Area,
Delhi. ..... Respondent
Date of institution of the appeal : 09.03.2011
Date of reserving judgment/order : 23.05.2012
Date of judgment / order : 28.05.2012
JUDGEMENT :
1. This appeal u/s 374 Code of Criminal Procedure has been preferred against the judgment dated 27.01.2011 and order on sentence dated 17.02.2012 of Shri Raghubir Singh, Ld. ACMM-II, New Delhi, in complaint case no. 195/06, vide which the appellant has been convicted for offences punishable u/s 16 r/w Section 7 of Prevention of Food Adulteration Act, 1954 (hereinafter referred to as "the Act") and sentenced to undergo rigorous imprisonment for six months and to pay a fine of Rs.10,000/-, in default to undergo further simple imprisonment for 10 days.
CA No. 33/12 Page No. 1 of 10 -2-2. The facts in brief as stated in the complaint, are that on 28.04.2006 at about 06.00 p.m. Food Inspector Sh.O.P.S. Ahlawat under the supervision of Sh. R. K. Sharma, the then SDM / LHA had purchased a sample of 1500 ml of "Cow's Milk" from the accused Sachin Mittal of M/s Rajender Prasad & Sons, 6003, Naya Bans, Delhi-06, where he was found to be conducting the business of the said food article which was stored there for sale. The sample was properly homogenized with the clean plunger and then divided into three equal parts and thereafter Food Inspector divided the sample into three equal parts by putting it into three separate clean and dry glass bottles. 40 drops of formalin were added in each sample bottle and thereafter they were separately packed, fastened and sealed as per the requirements of the Act. One sample was sent to Public Analyst, who gave his report that the sample not conform to the standards because milk solids not fat were less than the prescribed minimum limit of 8.5%.
3. After obtaining the requisite consent u/s 20 of the Act from Director, PFA, the present complaint was filed in the Court on 17.08.2006.
4. The accused was summoned vide order dated 17.08.2006. Accused Sachin Mittal did not exercise his right u/s 13 (2) of the Act.
5. Notice for the violation of the Provisions of Section 2 (ia) (a) & (m) of PFA Act, 1954, punishable u/s 16 (1) r/w Sec. 7 of PFA Act was framed against the accused, to which he CA No. 33/12 Page No. 2 of 10 -3- pleaded not guilty and claimed trial.
6. The prosecution in support of its case examined three witnesses namely PW1 Sh. O. P. S. Ahlawat, Food Inspector, PW2 Sh. R. K. Sharma, the then SDM/LHA, and PW3 Sh. Subedar Mishra, Field Assistant.
7. Statement of the accused was recorded u/s 313 Cr.PC in which he pleaded his innocence and opted to lead defence evidence but no defence evidence was led.
8. The Ld. ACMM after perusing the evidence found that in view of the report of Public Analyst, the "Cow's Milk"
sample was found to be deficient in "milk solids not fat (msnf)"
and accordingly convicted and sentenced the accused.
9. Aggrieved by the said judgment, present appeal has been filed.
10. Ld. counsel on behalf of the appellant has argued that the test applied for detecting the "milk fat" was Gerber Method, which has been held by the Supreme Court that it is not a sure test. The "msnf" has been worked out on the basis of the difference. Once the Gerber Method itself has not been held credible, then any other parameters worked out on the basis of difference cannot be considered to be conclusive. Furthermore, there is violation of Rule 14 in so much as PW1 and PW3 have deposed that the plunger used for mixing the milk was that of Food Inspector, while PW1 and PW2 has deposed that "milk" was weighed by putting in polythene bags. PW1 and PW3 on the other hand have claimed that the measure of 500 ml was used for measuring the "milk".
CA No. 33/12 Page No. 3 of 10 -4-Moreover, it is admitted that the bottles were not cleaned on the spot. There was no proper homogenization of "milk" and the benefit of the same has to be extended to the appellant. It is also argued that the statement of the accused u/s 313 Cr.PC has not been recorded properly and the contents of the report of Public Analyst have not been put specifically to the accused because of which he has been deprived by an opportunity to give due explanation. It is, therefore, argued that the accused is entitled to be acquitted.
11. Ld. Special PP on behalf of the Department has argued that in the reports of Public Analyst, the "msnf" content of the "milk" has been found to be below the prescribed minimum limit and the accused has been right convicted by the Ld. ACMM and the present appeal is liable to be dismissed.
12. I have heard the arguments and have perused the record. My observations are as under : -
13. The first objection which has been taken by the Ld. counsel on behalf of the appellant is that Gerber's Method has been implied for testing the "milk" sample.
14. It has been held by the Supreme Court in the case of "Corporation of Nagpur v. Neetam Manikrao Kature & Ors., 1998 SCC (Cri) 564" that Gerber'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.
15. The Public Analyst has followed Gerber's Method and his report based on such test cannot held to be reliable.
CA No. 33/12 Page No. 4 of 10 -5-The Manual of Methods of Analysis of Foods issued by Directorate General of Health Services, Ministry of Health and Family Welfare, Government of India, no doubt prescribes Gerber Method for determination of fat in "milk" but the same Manual also prescribes two other methods namely Roese- Gottlieb Method and Werner Schmidt Method for the said determination. Once the Supreme Court has accepted the uncertainty of Gerber Method, no explanation is forthcoming as to how this method is applied instead of two other methods. The report of the Public Analyst, which is based on the said test can, therefore, not be held reliable.
16. Now, we come to the facts of the case. As per the report of Public Analyst Ex.PW1/A "milk fats" were found to be 4.5%, which was more than the prescribed limit of 3.5%. The "msnf" which has been worked out of difference from total solids have found to be 6.07% as against the prescribed minimum of 8.5%.
17. The implication of the "milk" sample being found deficient not in "milk fat" but "msnf", has been discussed in "Sultan Singh v. State of UP, 1974 FAC 424", wherein it was held that where the "milk fat" is found to be higher than the prescribed minimum limit, it has to be necessarily inferred that no water had been added to the "milk" and the "msnf" being below the prescribed standard could be either because the cow, from the udders of which, the "milk" was drawn was not given proper feed or that the report of the Public Analyst was erroneous. But no inference can be drawn that the "milk"
CA No. 33/12 Page No. 5 of 10 -6-in question was not pure. Referring to this judgment it was observed in the case of "Hans Raj v. State of Punjab, 1980 (II) FAC 396", that where only the "msnf" are found to be below the prescribed limit then necessarily there has to be a defect in sampling but the "milk" cannot be held to be adulterated.
18. Likewise, in the case of "Kadam Singh and Puran v. State of UP & Ors., 1978 (I) FAC 100", it was held that the presence of more "fat" contents than the prescribed standards and deficiency of "not fatty" contents in the "milk" is only explainable on the assumption that the "milk" was not properly stirred while taking the sample.
19. Also, Rajasthan High Court in "State of Rajasthan v. Kashav, 1979 (II) FAC 359", had concluded that a sample which is found to contain more "fat" than the prescribed standards implies that the sample of "milk" was not taken after proper stirring. Similar observations were made in the case of "Sawaran Singh v. State of Haryana, 1998 (I) FAC 45".
20. Similarly, in the case of "Lekh Raj v.
Chandigarh, 1990 (I) RCR 729", it was observed that there can be no possible explanation as to why "fat" contents will be more than the prescribed standard for "toned milk", while at the same time "msnf" 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. If a "milk" vendor adds water to "milk", it will result in reducing CA No. 33/12 Page No. 6 of 10 -7- "fat" contents also, provided the sample is taken after proper stirring.
21. In the present case also the "milk fats" has been found to be higher than the prescribed minimum limit and it is the "msnf", which is found to be below the prescribed minimum limit. This compels the Court to look into the procedure which was followed for taking the sample.
22. In this context, the significance of proper sampling of "milk" products for analysis was highlighted in "A Laboratory Manual of Milk Inspection" by A. C. Aggarwala and R. N. Sharma, Fourth Edition, 1961, at page 115 as under :
"General Sampling : The careful and accurate sampling of milk is of utmost importance in all analysis of milk. Probably more errors are ensued through careless preparation of samples than in the actual performance of the tests. The most important thing is to bear in mind in this connection is that the whole body of milk from which a sample is to be drawn should be uniform throughout in its composition, and any sample of mil drawn out of it for analysis must necessarily be a true representative of the whole body of milk. The factors disturbing the uniformity of composition of milk are mainly the separation and partial churning of fat. Thorough mixing of milk must first be ensured either by stirring with a long handled dipper if the container is big, or by pouring from one vessel to another or by shaking gently."CA No. 33/12 Page No. 7 of 10 -8-
23. Another argument which has been taken is that the sample had not been taken correctly.
24. As per PW1, the Food Inspector, who is corroborated in his testimony by PW3 Sh. Subedar Mishra, Field Assistant, the "milk" was found stored in an open drum bearing the declaration of "cow's milk". In the cross- examination it has been explained that there was only one drum of "cow's milk" having a capacity of 100 litres and it was containing 15 - 20 litres of milk. He had used the plunger, which was with him for homogenization of milk. However, PW2 Sh. R. K. Sharma, the then SDM/LHA has deposed that the drum was having a capacity of 75 litres and the milk contained in the drum was about 50 litres. He has also deposed that the plunger used by the Food Inspector was with him and it was having a length of about 3 - 4 ft. and its disk was about 3' - 4". PW3 Sh. Subedar Mishra, Field Assistant has also deposed that the drum was having a capacity of 100 litres and the quantity of milk was about 50 - 60 litres. He, however, has deposed that the milk was mixed with the help of a plunger provided by the accused and the rod of the plunger was about 1½ meter.
25. There is a discrepancy in the testimony of three witnesses as to in whose possession the said plunger was. Furthermore, while PW1 and PW3 had deposed that milk was put into the bottles with the help of 500 ml measure, the PW2 has deposed that the milk was measured in polybags. There are major discrepancies in the testimonies of the three w itnesses in regard to homogenization of milk and of measuring CA No. 33/12 Page No. 8 of 10 -9- it for putting into the bottles.
24. In the case of "Ishwar Singh v. State of Haryana, 1990 (I) FAC 151", as well the "milk" sample was taken from a drum having a capacity of 40 litres. There too the "milk" had been stirred with the help of a plunger. It was observed that it is a matter of common knowledge that cream or fat contents in the "milk" being light in weight accumulates towards top of the container, if huge "milk" like 40 litres is carried therein. The testimony of Food Inspector that the content had been stirred in a drum with the help of "milk" measure is of no consequence for if the "milk" is taken out from the drum with the help of "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 accumulation of cream or fatty solids towards the top of the container and this would appear to have happened in cases where "milk fat" is found to be more than the minimum prescribed standards while "msnf" is found to be below the prescribed standards.
25. In the present case as well though it is the plunger, which is deposed to have been used, but it is evident that the "milk" had not been stirred properly or else "milk fat" content would not have been found to be more than the prescribed minimum limit.
26. It is, thus, evident from the report of Public Analyst and Director, CFL, that the sampling had not been done CA No. 33/12 Page No. 9 of 10
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effectively or correctly or else the "milk fat" content could not have been higher than the prescribed standard had the milk been adulterated. The benefit of the same, therefore, has to go to the appellant.
27. In view of the above discussion, the appeal is hereby allowed. Conviction is hereby set aside and the appellant is acquitted. Bail-bond and surety bond stand discharged.
28. Trial Court Record be sent back alongwith the copy of this order.
29. Appeal file be consigned to the Record Room. Announced in the open Court on this 28th Day of May,2012.
(Neena Bansal Krishna) ASJ-01/PHC/New Delhi CA No. 33/12 Page No. 10 of 10