Delhi District Court
Da vs . Narender Kumar Gupta Page 1 Of 11 on 10 October, 2014
IN THE COURT OF GAURAV RAO
ADDITIONAL CHIEF METROPOLITAN MAGISTRATEII,
PATIALA HOUSE COURTS, NEW DELHI
C.C. No. 42/11
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
Narender Kumar Gupta
S/o Sh. Suresh Babu Gupta
M/s Ram Lakhan Sweets,
I3 Saurabh Vihar,
Hari Nagar Extn., Jaitpur Road,
Badarpur, New Delhi110044
R/o I3, Saurabh Vihar, Hari Nagar Extension.
Jaitpur Road, Badarpur, New Delhi110044.
...........VendorcumProprietor.
Serial number of the case : 42/11
Date of the commission of the offence : 28.10.2010
Date of filing of the complaint : 22.02.2011
Name of the Complainant : Sh P. M. Kothekar, Food Inspector
CC No. 42/11
DA Vs. Narender Kumar Gupta Page 1 of 11
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 : 10.10.2014
Judgment announced on : 10.10.2014
Brief facts of the case
1.In brief the case of the prosecution is that on 28.10.2010 at about 08.30 p.m. Food Inspector P. M. Kothekar and Field Assistant Sh. S. Messy under the supervision and directions of SDM / LHA Sh. V. P. Singh visited M/s Ram Lakhan Sweets, Shop No. I3, Saurabh Vihar, Hari Nagar Extension, Jaitpur Road, Badarpur, New Delhi where accused Narender Kumar Gupta who was the vendorcumproprietor was found present conducting the business of sale of various sweets articles including Khoya (Dhap) 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 Khoya (Dhap).
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 not found conforming to the standards as milk fat on dry weight basis was less than the prescribed minimum limit of 30% and accordingly after obtaining the necessary Sanction / Consent under Section 20 of the Act the present complaint was filed for CC No. 42/11 DA Vs. Narender Kumar Gupta Page 2 of 11 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 22.02.2011. 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 09.03.2011. The Director, CFL after analysing the sample opined vide its Certificate dated 23.03.2011 that "sample does not conform to the standards of Khoya as per PFA Rules 1955 as per tests performed". The Director so opined as the sample was found not conforming to the standards because milk fat contents on dry weight basis was less than the prescribed minimum limit of 30%.
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 accused vide order dated 28.06.2011 to which accused pleaded not guilty and claimed trial.
5. The complainant/prosecution examined three witnesses i.e. Sh. P. M. Kothekar as PW1, the then SDM/LHA Sh. V. P. Singh as PW2 and Field Assistant Sh. S. Messy as PW3 and thereafter PE was closed vide order dated 29.04.2014 CC No. 42/11 DA Vs. Narender Kumar Gupta Page 3 of 11
6. Statement of the accused U/s 313 Cr. P.C. was recorded today wherein the accused claimed himself to be innocent.
A brief scrutiny of the evidence recorded in the matter is as under:
7. PW1 Sh. P. M. Kothekar deposed that on 28.10.2010 he was posted as FI in SubDivision Kalkaji, Delhi and on that day he along with FA Sh. S. Messy, under the supervision and direction of SDM/LHA Sh. V. P. Singh, visited the premises of M/s Ram Lakhan Sweets, Shop No. I3, Saurabh Vihar, Hari Nagar Extension, Jaitpur Road, Badarpur, New Delhi where accused Narender Kumar Gupta was found conducting the business of above mentioned shop, having stored various sweet items including Khoya (Dhap) ready for use for preparation of sweets items, which were for sale for human consumption. He deposed that first of all, on the direction of SDM/LHA, he disclosed his identity to the accused/vendor and as per the selection of SDM/LHA, he expressed his intention to purchase a sample of Khoya (Dhap) from him for analysis, to which he agreed. He deposed that the sample commodity was lying in an open tray bearing no label or declaration. He deposed that before taking the sample, he tried to associate some public witnesses by requesting some passersby and neighborers to join the sample proceedings but, none agreed then on his request, Sh. S. Messy joined as such in the sample proceedings. He deposed that thereafter, at about 08.30 p.m., he purchased from the vendor, 750 gms of Khoya (Dhap). He CC No. 42/11 DA Vs. Narender Kumar Gupta Page 4 of 11 deposed that an amount of Rs. 115/ was offered to the vendor towards the price of the sample commodity but he refused to accept the same as per Vendor's Receipt Ex. PW1/A bearing signature of vendor at point A. He deposed that sample was taken after properly mixing Khoya (Dhap) with a clean and dry big spoon in a clean and dry tray by rotating the spoon in all possible directions. He deposed that the so purchased quantity of the sample commodity was divided into three equal parts by putting it into three clean and dry sample glass bottles. 20 drops of formalin were added in each sample bottle as preservative. He deposed that all the three sample bottles were separately packed, fastened, marked and sealed according to PFA Act and Rules. He deposed that LHA slips bearing the signature and code number of LHA were affixed on all the three counterparts from top to bottom. He deposed that vendor signed on each counterpart in such a manner so as to appear partly on the LHA slip and partly on the wrapper of the counterpart. He deposed that Notice in Form VI was prepared vide Ex PW1/B and the vendor made an endorsement on this Notice at portion X to X that 'sample commodity was not for sale as such but, was for preparation of sweet items and it was of the same lot'. He deposed that a copy of this Notice was given to the vendor as per his acknowledgment at portion Y to Y. He deposed that Panchnama Ex. PW1/C was also prepared at the spot. He deposed that all these documents were read over and explained to the vendor in Hindi and thereafter, he signed at point 'A', witness signed at point 'B' and he signed the same at point 'C'. He deposed that vendor gave his statement to him at the spot vide Ex. PW1/D, bearing his signature at point A. He deposed that Report under Rule 9 (e) was also prepared at the spot vide CC No. 42/11 DA Vs. Narender Kumar Gupta Page 5 of 11 Ex. PW1/E, bearing signature of LHA at point A, signature of witness at point B and his signature at point C. He deposed that on the next working day, one counterpart of the sample along with one copy of Memo in Form VII and another copy of Memo in Form VII in a separate seal cover was deposited with PA vide PA Receipt Ex. PW1/F and the remaining two counterparts along with two copies of Memo in Form VII in a sealed packet were deposited with SDM/LHA on 29.10.2010 vide receipt Ex. PW1/G, bearing signature of LHA at point A and his signature at point B, under intimation that one counterpart has already been deposited with PA. He deposed that all the copies of Memo in Form VII were bearing his signature and seal impression with which the sample counterpart were sealed. He deposed that PA Report was received through SDM/LHA vide Ex. PW1/H, bearing signature of PA at point A, which revealed that sample was not conforming to the standards. He deposed that accordingly on the directions of SDM/LHA, he started the investigations. He deposed that during investigations, he sent a letter to the vendor vide Ex. PW1/I and received its reply vide Ex. PW1/I1 to the effect that he was the Proprietor of M/s Ram Lakhan Sweets. He deposed that along with this reply, he also received photocopy of Electricity Bill in the name of the vendor vide Mark X. He deposed that he also sent a letter to STO, Ward No. 94 vide Ex. PW1/J and received its reply at portion X to X that the above mentioned firm was not registered in that Ward. He deposed that during investigations, accused was found the Proprietor of the above mentioned Firm and was responsible for day to day conduct of its business. He deposed that after conclusion of investigations, he sent the entire case file to the SDM/LHA, who CC No. 42/11 DA Vs. Narender Kumar Gupta Page 6 of 11 forwarded the same to then Director PFA for obtaining his consent and the then Director PFA Sh. K. S. Singh granted his consent for prosecution vide Ex. PW1/K, bearing his signature at point A. He deposed that after obtaining consent, he filed the complaint before this Hon'ble Court on the directions of SDM/LHA, which is Ex. PW1/L, bearing his signature at point A and B. He deposed that thereafter, Intimation Letter along with copy of PA Report was sent to the accused through registered post through SDM/LHA, which were not received back undelivered. He deposed that copy of intimation letter is Ex. PW1/M, bearing signature of SDM/LHA at point A and photocopies of postal registration receipts are collectively Ex. PW1/N .
8. During his cross examination he stated that he does not know as to how many kinds of Khoya are available in the market. He stated that he cannot admit or deny that it is of 3 kinds namely Khoya Danedar, Khoya Dhap & Khoya Pindi. He stated that the sample commodity i.e. Khoya (Dhap) was in loose form and was not in solid stage. He stated that there was approximately 45 kg of the sample commodity, available with the vendor at that time. He stated that for weighing the Khoya (Dhap), it was put on a butter paper with the help of the above mentioned spoon and then it was weighed in a Pan Scale. He stated that thereafter, the weighed quantity was mixed with the help of the above mentioned spoon in another clean and dry tray. He denied the suggestion that there was no butter paper lying with the vendor or that no butter paper was used by them in the sample commodity. He stated that the spoon was provided by the vendor. He stated that the Khoya (Dhap) was transferred into the CC No. 42/11 DA Vs. Narender Kumar Gupta Page 7 of 11 sample bottles with the help of the above mentioned spoon. He stated that the sample bottles and spoon were not made clean and dry at the spot as they were already clean and dry. He denied the suggestion that some Khoya (Dhap) was already sticking with the spoon and the sample bottles when they were used in the sample proceedings. He admitted that at portion X to X in Vendor's Receipt Ex. PW1/A, it has not been mentioned that the price of the sample commodity was offered to the vendor and he refused to accept the same. He voluntarily stated that the same fact has been mentioned at portion Y to Y in Ex. PW1/A. He denied the suggestion that he did not offer any price of the sample commodity to the vendor. He stated that 4 copies of memo in Form VII were prepared at the spot and all were bearing his signature and seal impression. He admitted that he had deposited one copy of Memo in Form VII with one counterpart of the sample with the PA and deposited one copy of memo in Form VII separately with the PA. He denied the suggestion that procedure of depositing the counterparts with above mentioned authorities was wrong. He denied the suggestion that the variation between PA & CFL Report it any, indicates the fact that he has not taken a representative sample. He denied the suggestion that the sanction granted by the Director, PFA is bad in law.
9. PW2 the then SDM/LHA Sh. V.P. Singh and PW3 Filed Assistant S. Messy deposed on the same lines as deposed by PW1 in his examination in chief.
10. This so far is the prosecution evidence in the matter.
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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, CFL 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 khoya (dhap) was not conforming to the standards the prosecution is relying upon the report of Director, CFL dated 23.03.2011 who had reported that the sample of khoya (dhap) did not conform to the standards as the milk fat on dry weight basis was less than the prescribed minimum limit of 30.0%. However as per the report of the Director, CFL, he used the Gerber method for the purpose of analyzing the sample of Khoya (dhap) so collected by the Food Inspector. It is reflected in his report that he used I.S. 1224 Part I 1977 method for the purpose of calculating the percentage of milk fat in the sample of Khoya (dhap) This is Gerber method as has been fairly conceded by Ld. SPP. The CC No. 42/11 DA Vs. Narender Kumar Gupta Page 9 of 11 said method is not a sure/accurate test for the purpose of analysis of food articles 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 can be placed upon the report for the purpose of concluding whether the sample of Khoya (dhap) 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 CC No. 42/11 DA Vs. Narender Kumar Gupta Page 10 of 11 world for the purpose of analysis of food substances 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 October 2014 ACMMII/ New Delhi
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