Delhi District Court
Chaturbhuj Gupta vs State on 15 January, 2010
IN THE COURT OF SH. SANJIV JAIN: SPECIAL JUDGE: NDPS
NEW DELHI
Date of Institution: 06.08.2009
Judgment reserved on : 07.12.2009
Date of pronouncement : 15.01.2010
C.A. No. 45/09
ID No. 02403R0237832009
Chaturbhuj Gupta
S/o Sh. ML Gupta
Prop of M/s Gupta Diary
I - Block Market, Shop No. 1,
Ashok Vihar, Phase - I,
Delhi - 52.
.... Appellant
Versus
State
(Through Delhi Administration)
Delhi
..... Respondent
ORDER
1. This criminal appeal is preferred against the order of Ld ACMM dt. 3.7.09 and 9.7.09 whereby the appellant has been convicted of the offence punishable u/s. 16(1) r/w section 7 of the PFA Act for violation of sub section A and M of section 2 (ia) and sentenced to imprisonment and fine.
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2. The facts leading to the disposal of the present appeal are that on 14.12.98 at about 7.45 pm food inspector purchased a sample of "cow's milk" a food article for analysis from the appellant at M/s Gupta Dairy Farm, Ashok Vihar Phase I, Delhi where the said food article was stored for human consumption. The sample consisting of approximately 750 ml of cow milk was taken from the freezer bearing declarations as Cow's milk, after proper homogenization with the help of dry and clean plunger. The food inspector divided the sample into 3 equalparts by putting it in 3 separate clean and dry bottles and added 20 drops of formalin in each of the bottle. Notice in form VI was given to the appellant and a panchanama was prepared. Efforts were also made to join public witnesses but none came forward. The sample was sent to the Public Analyst who on analysis vide his report dt. 30.12.98 found the sample not confirming to the standards laid down under item NO. A.11.01.11 of appendix 'B' of PFA Rules because sample showed presence of skimmed milk powder.
3. After getting sanction, the prosecution was launched 2 against the appellant. To prove its case, complainant examined three witnesses. The appellant in his statement recorded u/s. 313 CrPC controverted the entire evidence and examined Dr. Pramod Khotekar and Dr. Darshan Lal in defence. The trial Court on the basis of the evidence led and the averments made by the parties convicted the appellant of the offence.
4. This order is assailed on the ground that there was an amendment in the PFA Act as per which the Local Head Authority was created. In the present case notification of R.C Verma, LHA was published in official gazetted on 3.3.99 and sample was lifted by the food inspector on 14.12.1998 and at that time there was no LHA for lifting the sample ; that the Public Analyst neither applied any test for SMP nor any test is provided in DGHS book hence the appellant had moved an application for summoning the concerned analyst in the court for cross examination but the analyst did not appear and on his behalf one food inspector appeared who tendered the report of public analyst and as such the report of the Public Analyst cannot be used against the appellant. It is stated that the analyst wrote SMP 3 test positive on the presumption that in cow milk, milk solid and not solid fat can not be so high as in the present case, actually it was the buffolow milk. The sample confirms to the bufollow milk as well as cow milk and it is not adulterated; that the trial Court ignored the opinion of the Dr. Darshan, Sr. Scientist in National Dairy Research Institute, Karnal who has deposed that there is no reliable test for detection of SMP in milk.
5. Notice of this appeal was given to the respondent / Delhi Administration and the trial Court record was summoned.
6. I have heard the arguments advanced by ld counsel Sh M.L. Narang for the appellant and Sh. Padi for Delhi Administration and have gone through the material placed on record.
7. The standard of different classes and designation of milk is given in the table under item No. A.11.01.11 of Appendix 'B' of PFA Rules wherein it is provided that the milk shall conform to both the 4 parameters for milk fat and milk solids not fat and under the title of cow's milk, the minimum percentage of milk fat in Delhi State is 3.5% and milk solids not fat is 9%. The definition of milk and milk products is given in item No. A.11 item No. A. 11.01.01 of Appendix B of PFA rules as per which :
"Milk is the normal mammary secretion derived from complete milking of healthy milch animal without either addition thereto or extraction therefrom. It shall be free from colostrum. Milk of different classes and of different designations shall conform to the standards laid down in the Table below item A.11.01.11". Rule 44(1) prohibits sale of admixture of milk or milk products with a substance not found in milk, except as provided in the Rules.
8. Skimmed milk powder means the product obtained from cow / buffalow milk or a combination thereof by the removal of water. It may contain added calcium cholride, citric acid and sodium citrate, sodium salts of orthophosphoric acid and polyphosphoric acid not exceeding 0.3 % by weight of the finished product. 5
9. In the instant case the Public Analyst has not given the percentage of skimmed milk powder in the sample commodity nor has prescribed the method how he found the presence of skimmed milk powder in the sample of cow's milk. The appellant had moved an application for calling the Public Analyst to clarify this point but the prosecution failed to produce him in the witness box. He was a government employee and with little bit of effort, his presence could be secured even if he has left the services. His report is placed on record by one food Inspector Dr. Pramod Kothekar of PFA department. Further prosecution did not produce any other public analyst or the person acquainted with the procedure of analysis to clarify this position.
10. In this case the appellant had examined Dr. Darshan Lal who had performed analysis of more than thousand samples of milk and milk products while working with NDRI Karnal. He stated that there is no standard method for detecting SMP in the sample of milk. 6 DGHS has given the test for the detection of SMP in the sample of milk borrowed from the journal of Food Science and Technology, Vol. 22 (1985) Page 207 based on the principle that when a sample of milk after centrifugation and removal of cream layer is treated with 0.5ml of 4% acetic acid and 2 ml of 1% phosphomolybdic acid and mixed and heated in a boiling water bath for fifteen minutes gives green colour of the curd in case of pure milk and intense blue colour in case of milk sample containing skimmed milk powder. When we perform the test, it gives the colour of the curd which is confusing in the sense that bluish - green or greenish blue tinge is obtained in almost both the cases whether it is pure milk or the milk sample contained SMP. He stated that SMP is one of the ingredients of milk. By adding formalin in the sample of milk , the colour intensity is reduced further adding to the confusion while conducting the above test for SMP. In both the cases, they are giving similar results. therefore, the test should be conducted alongwith the control ie pure milk containing no SMP so that real comparison can be simultaneously made.
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11. In the present case the sample passed to the standard milk fat and solid not fat (SNF) for the cow's milk. It also passed the standards of bufallow milk. So in the light of testimony of the Senior Chemist of NDRI, Karnal and the fact that the Public Analyst did not appear to stand at the anvil of cross examination much reliance cannot be placed on his report.
12. No doubt the presence of skimmed milk powder in the sample of cow's milk would affect the quality and nature of the cow's milk but it is also incumbent upon the prosecution to prove how he came to know the presence of skimmed milk powder in the sample of cow's milk.
13. In the case of Nagar Palika Parishad Vs. Rajender Kumar 1988 (I) PFA Cases 3 the public analyst's did not mention the percentage proportion of kesari dal flour in the sample of besan and only stated that the sample in question showed presence of kesari dal 8 flour. In the absence of proper percentage, the respondent was acquitted.
14. In the case of State of Punjab Vs Subhash Chand 2004 FAJ 511 the public analyst's found the sample suspended matter settled at the bottom of sarson oil. Report did not indicate the extent or percent of suspended matter. It was held that the Sessions Court in acquittal rightly relied on Section 95 IPC to hold that suspended matter might be negligible. In the case of State Vs Dwarkadas 2007 (1) FAC 229 the sample of kali mirch did not confirm to the standard since it was found to contain mineral oil, the report of Director nowhere showed the quantity, weight or proportion by way of percentage of mineral oil in the sample. It was held that it is possible that the presence thereof in the sample may be just negligible so as to cause no prejudice to the purchaser as contemplated in Section 2 (ia) (a) nor is there any evidence whatsoever on the record of the case to show that its presence on the sample could affect injuriously the nature, substance or the quality of the sample or unfit for human 9 consumption. This view was also taken in the case Kushi Ram Vs. State and Anr X 1984 All India Prevention of Food Adulteration Journal 451.
15. I do not agree with the observation of the Ld Trial Court that no benefit can be given to the accused since he has not exercised his right u/s. 13 (2) of the Act to get the second counterpart of the sample analysed from the Director CFL. It is for the prosecution to establish that the sample was adulterated. The accused has every right to cross examine the person who analysed the sample and in that absence the benefit must go to the accused. Pw2 in his cross examination stated that he does not remember that after the addition of formalin in milk when SMP test is applied if any the reagents added in milk are neutralised with formalin and SMP can be detected. He also admitted that SMP is costlier than the milk and that it is prepared from milk.
16. As regards the point whether the SDM was not appointed 10 as LHA on the day of sampling, the Ld trial Court has rightly considered the contention of the prosecution that on 14.12.98 Pw1 was posted as SDM and was conferred with the powers of LHA.
17. For the reasons stated above I am of the view that the case against the appellant has not been proved beyond reasonable doubt. The appellant deserves the benefit. I accordingly the acquit the appellant of the offence punishable u/s. (a) & (m) of Section 2 (ia) punishable u/s. 16(1) r/w Section 7 of PFA Act giving benefit of doubt.
Trial Court Record be sent back.
File be consigned to record room.
Announced in the open court th on this 15 day of January, 2010 (Sanjiv Jain) Special Judge - NDPS Patiala House Courts : New Delhi 11