Delhi District Court
Da vs . Subhash Chand Page 1 Of 10 on 10 July, 2014
IN THE COURT OF GAURAV RAO
ADDITIONAL CHIEF METROPOLITAN MAGISTRATEII,
PATIALA HOUSE COURTS, NEW DELHI
C.C. No. 1942/09
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
Subhash Chand
s/o Sh. Laxman Das
M/s Rajasthan Dairy,
Shop no. 5868, Jogiwara,
Nai Sarak, Delhi6
R/o 4324, Gali Bhairon Wali,
Jogiwara, Nai Sarak,
Delhi ........ VendorcumProprietor
Serial number of the case : 1942/09
Date of the commission of the offence : 20.06.2009
Date of filing of the complaint : 15.09.2009
Name of the Complainant : Sh. Sanjeev Kumar Gupta, Food
Inspector
CC No. 1942/09
DA Vs. Subhash Chand Page 1 of 10
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 : Acquitted
Arguments heard on : 10/07/14
Judgment announced on : 10/07/14
Brief facts of the case
1.In brief the case of the prosecution is that on 20.06.2009 at about 05.30 p.m. Food Inspector Sanjeev Kumar Gupta and Field Assistant Sh. Mittra Pal under the supervision and directions of SDM / LHA Sh. R.K. Sharma visited M/s Rajasthan Dairy, Shop No. 5868, Jogiwara, Nai Sarak, Delhi, where accused Subhash Chand who was the vendorcumproprietor was found present conducting the business of sale of various dairy articles including cow's milk 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 cow's milk.
2. 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 found not conforming to the standard of cow milk as per PFA rules 1955 as per tests performed as the Milk fat and Milk solids not fat were less than the prescribed minimum limit of 3.5 and 8.5% respectively and accordingly after obtaining the necessary Sanction / CC No. 1942/09 DA Vs. Subhash Chand Page 2 of 10 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.
3. After the complaint was filed, the accused was summoned vide orders dated 15.09.2009. The accused after filing his 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 14.10.2009. However the Director vide certificate dated 31.10.2009 reported that sample was not in a condition fit for analysis as the sample was received in broken condition, contents were lost during the transit and hence could not be analyzed. Thereafter third counterpart of the sample was sent to the Director, CFL, Pune for its analysis vide orders dated 18.11.2009. The Director, CFL after analysing the sample opined vide its Certificate dated 01.12.2009 that "sample does not conform to the standards of Cow Milk as per PFA Rules 1955 as per tests performed". The Director so opined as the milk fat were found at 2.6% and milk solids not fat were found at 7.93 against the minimum prescribed standard of 3.5% and 8.5% respectively.
4. 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 the CC No. 1942/09 DA Vs. Subhash Chand Page 3 of 10 accused vide order dated 11.02.2010 to which accused pleaded not guilty and claimed trial.
5. The the complainant/prosecution examined three witnesses i.e. FI Sanjeev Kumar Gupta as PW1, FA Sh. Mittra Pal as PW2 and the then SDM/LHA Sh. R.K. Sharma as PW3 and thereafter PE was closed vide orders dated 10.07.2014.
6. Statement of the accused U/s 313 Cr. P.C. was recorded on 10.07.2014 wherein the accused claimed himself to be innocent.
A brief scrutiny of the evidence recorded in the matter is as under:
7. PW1 FI Sanjeev Kumar Gupta deposed that on 20.06.2009 he along with FA Mittrapal and other staff under the supervision and direction of SDM/LHA Sh. R.K. Sharma went to M/s Rajasthan Dairy, Shop No. 5868, Jogiwara, Nai Sarak, Delhi where accused Subhash Chand was found conducting the business of aforesaid Dairy including cow's milk for sale for human consumption. He deposed that he disclosed his identity and intention for taking the sample of Cow's milk lying in an open drum bearing declaration as cow's milk for analysis to which accused agreed. He deposed that before taking the sample he tried his best to procure some public witnesses by requesting some neighborers, customers and passersby etc. to join the sample proceedings but as none agreed for the same on his request FA Mittra Pal, agreed CC No. 1942/09 DA Vs. Subhash Chand Page 4 of 10 and joined as witness. He deposed that then at about 05.30 p.m. he purchased 1500 ml of Cow's milk taken from an open drum having label declaration as cow's milk after proper mixing with the help of a clean and dry measure by rotating in all possible directions i.e. clockwise, anticlockwise, upward and downwards several times on payment of Rs. 36/ vide receipt Ex. PW1/A. He deposed that then he divided the so purchased 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 and shaken properly for its proper mixing. He deposed that each sample bottle containing the sample was then separately packed, fastened, marked and sealed according to PFA Act and Rules. He deposed that LHA slip bearing his code number and signature were affixed on all the three counterparts of the sample 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 its was given to the accused as per his endorsement at portion A to A bearing his signature at point A. He deposed that vendor made endorsement at point B to B that the cow's milk is ready for sale. He deposed that Panchnama Ex. PW1/C was prepared. He deposed that Raid report under Rule 9 (e) Ex. PW1/C1 was prepared at the spot. He deposed that vendor gave the photocopy of Election I Card Mark X and photocopy of Adhoc MCD registration certificate Mark X1. He deposed that all these documents Ex. PW1/A to Ex. PW1/C were read over and explained to accused in Hindi and after understanding the same accused signed at point A, witness signed at CC No. 1942/09 DA Vs. Subhash Chand Page 5 of 10 point B and he signed at point C respectively. He deposed that one counterpart of the sample was deposited in intact condition with the PA on 22.06.2009 vide receipt Ex. PW1/D 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 two counterparts 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 22.06.2009 vide receipt Ex. PW1/E with the intimation that one counterpart of the sample has already been deposited in intact condition with the PA. He deposed that all the copies of memo in Form VII bore the same seal impression with which the sample in question was sealed. He deposed that PA report Ex. PW1/F was received according to which the sample does not conform to the standards as mentioned therein at portion X. He deposed that during investigation he sent a letter Ex. PW1/G to STO Ward no. 21 and reply received at point A according to which the said firm was not found registered with the Sales Tax. He deposed that during investigation he visited the shop and the vendor furnished his statement Ex. PW1/H that he is the incharge and responsible for day to day affairs of the said dairy and provided the photocopy of Property Tax receipt Mark X2. He deposed that then on completion of investigation by him the complete case 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/I. He deposed that complaint Ex. PW1/J was filed in the court by him bearing his signature at point A. He deposed that intimation letter Ex. PW1/K along with PA report was sent to accused by registered post by the SDM/LHA which CC No. 1942/09 DA Vs. Subhash Chand Page 6 of 10 was not received back undelivered. Photocopy of postal registration slip is Ex. PW1/L, bearing the relevant entry at point A.
8. During his cross examination he stated that there was only one drum of cow's milk at the time of sampling containing 1520 litres of cow's milk. He stated that the capacity of the drum was about 4050 litres. He stated that milk was mixed by him with the help of clean and dry measure of 1 litre in the drum itself. He stated that drum was filled less than half and his hands did not dip into the milk while mixing the milk with the help of measure. He denied the suggestion that milk was not properly mixed. He denied the suggestion that milk cannot be mixed properly with the help of measure. He stated that milk was put into clean and dry Donga and then it was equally divided into the sample bottles. He stated that bottles were filled slightly less than its neck. He stated that two counterparts were deposited at room temperature with the LHA. He stated that time was taken during investigation and in obtaining the PA report. He stated that the Sanction was granted in favour of LHA as well as in favour of FI. He denied the suggestion that the sanction is bad. He denied the suggestion that both the reports are divergent either different samples were sent to different analysts or their opinion were wrong. He denied the suggestion that he intentionally did not try to associate the public witnesses.
9. PW2 FA Mittra Pal and PW3 the then SDM/LHA Sh. R.K. Sharma deposed on the same lines as deposed by PW1 in his examination in chief. CC No. 1942/09 DA Vs. Subhash Chand Page 7 of 10
10. This so far is the prosecution evidence in the matter.
11. 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.
12. At the outset it was argued by Ld. Defence counsel Sh. R.D. Goel 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 used Gerber method which is not a sure/accurate test and accordingly no reliance can be placed upon the Director's report.
13. To establish its case of adulteration i.e. that the sample of Cow milk was not conforming to the standards the prosecution is relying upon the report of Director, CFL dated 01.12.2009 who had reported that the sample of cow milk did not conform to the standards as the milk fat and the milk solids not fat were less than the prescribed minimum limit of 3.5% and 8.5% respectively. However as per the report of the Director, CFL, he used the Gerber method for the purpose of analyzing the sample of cow milk so collected by the Food Inspector. It is reflected in his report that he used CC No. 1942/09 DA Vs. Subhash Chand Page 8 of 10 I.S. 1224 Part I 1977 for the purpose of calculating the percentage of milk fat in the sample of cow milk so analyzed and thereafter By difference calculated the contents of the milk solids not fat in the sample of cow 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 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:
".......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."
14. 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.
15. In view of the above as the Director used the Gerber method no reliance CC No. 1942/09 DA Vs. Subhash Chand Page 9 of 10 can be placed upon the report for the purpose of concluding whether the sample of cow 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 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.
16. Accordingly in view of my above discussion and the law laid down in Corporation of City of Nagpur Vs. Neetam Manikraro Kature & Anr. 1998 SCC (Cri) 564 the accused stands acquitted of the charges in the present case.
17. I order accordingly.
Announced in the open Court (Gaurav Rao)
on 10th July 2014 ACMMII/ New Delhi
CC No. 1942/09
DA Vs. Subhash Chand Page 10 of 10