Delhi District Court
Da vs . Sabir Ali Page 1 Of 10 on 7 July, 2014
IN THE COURT OF GAURAV RAO
ADDITIONAL CHIEF METROPOLITAN MAGISTRATEII,
PATIALA HOUSE COURTS, NEW DELHI
C.C. No. 31/06
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
Sabir Ali
S/o Sh. Abdul Habib
M/s S.S. Dairy Farm
C112/15, Gali no. 16, North Ghonda,
Delhi53.
........ VendorcumProprietor
Serial number of the case : 31/06
Date of the commission of the offence : 29.08.2005
Date of filing of the complaint : 17.01.2006
Name of the Complainant : Sh. Ram Pratap 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.
CC No. 31/06
DA Vs. Sabir Ali Page 1 of 10
Plea of the accused : Pleaded not guilty
Final order : Acquitted
Arguments heard on : 07/07/14
Judgment announced on : 07/07/14
Brief facts of the case
1.In brief the case of the prosecution is that on 29.08.2005 at about 10.00 a.m. Food Inspector R.K. Bhaskar and Field Assistant Naubat Singh under the supervision and directions of SDM / LHA Sh. Anil Banka visited M/s S.S. Dairy Farm, C112/15, Gali no. 16, North Ghonda, Delhi, where accused Sabir Ali who was the vendorcumproprietor was found present conducting the business of sale of various dairy articles including Buffalo 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 Buffalo 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 Buffalo 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 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 CC No. 31/06 DA Vs. Sabir Ali Page 2 of 10 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 17.01.2006.
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 13.05.2009 to which accused pleaded not guilty and claimed trial.
5. The complainant/prosecution examined four witnesses i.e. Food Inspector R.K. Bhaskar as PW1, the then SDM/LHA Sh. Anil Banka as PW2, FA Sh. Naubat Singh as PW3 and the then SDM/LHA Sh. L.R. Meena as PW4 and thereafter PE was closed vide orders dated 06.09.2013.
6. Statement of the accused U/s 313 Cr. P.C. was recorded on 07.07.2014 wherein the accused claimed himself to be innocent.
A brief scrutiny of the evidence recorded in the matter is as under:
7. PW1 Food Inspector R.K. Bhaskar deposed that on 29.08.2005 he along with FA and other staff under the supervision and direction of SDM/LHA Sh. Anil CC No. 31/06 DA Vs. Sabir Ali Page 3 of 10 Banka visited the premises of M/s S.S. Dairy Farm, C112/15, Gali no. 16, North Ghonda, Delhi where accused Sabir Ali was found present conducting the business of food articles in that shop i.e. Buffalo milk meant for sale for human consumption from an open drum, bearing label declaration as Buffalo milk. He deposed that he disclosed his identity and intention for taking the sample of buffalo milk from an open drum for analysis to which accused agreed. Before starting the sample he tried his best to procure some public witnesses by requesting some neighbourers, customers and passersby etc. to join the sample proceedings but as none agreed for the same on his request FA Naubat Singh agreed and joined as witness. He deposed that at about 10.00 a.m. he purchased 1500 ml of Buffalo milk taken from the open drum having label declaration as Buffalo milk on it on payment of Rs. 21/ vide receipt Ex. PW1/A. He deposed that sample was taken after proper homogenization with the help of a clean and dry plunger by rotating in all possible directions several times i.e. clockwise, anticlockwise, up and downwards. 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 in each sample bottle and shaken properly for its proper mixing. He deposed that then each sample bottle containing the sample of Buffalo milk was separately packed, fastened, marked and sealed according to PFA Act and Rules. He deposed that LHA slips his Code No. and signature was affixed on all the three counterparts of the bottles and vendor's signature were obtained on LHA slip in such a manner that portion of his signature were on the wrapper as well was on the LHA slip. He deposed that notice in Form VI was CC No. 31/06 DA Vs. Sabir Ali Page 4 of 10 prepared at the spot vide Ex. PW 1/B and copy of it was given to the accused as per endorsement at portion A to A bearing his signature at point A. He deposed that Panchnama was prepared vide Ex. PW 1/C. He deposed that vendor also made endorsement on the Notice in Form VI that the Buffalo milk of Gopaljee in loose condition is ready for sale. He deposed that vendor also furnished his statement Ex. PW1/D that he is the incharge and responsible for day to day affairs of the said firm which is not registered and also provided the photocopy of the Election I Card Mark X. All these documents Ex. PW1/A to Ex. PW1/C were read over and explained to the vendor in Hindi and after understanding the same he signed the same at point A, witness signed the same at point B and he signed the same at point C. He deposed that one counterpart of the sample was deposited with the PA on 30.08.2005 vide receipt Ex. PW1/E in a sealed packet containing one copy of memo in Form VII and another sealed envelope containing one copy of another Memo in form VII separately. He deposed that two counterparts of the sample along with two copies of Memo in Form VII in a sealed packet were deposited in intact condition with LHA on 30.08.2005 vide receipt Ex. PW1/F under intimation that one counterpart of the sample has already been deposited in intact condition with the PA. He deposed that all the copies of memos in form VII bore the sample seal impression with which the sample in question was sealed. He deposed that PA Report was received vide Ex. PW 1/G, which revealed that the sample was not conforming to the standards as mentioned therein at portion X. He deposed that during investigation he sent a letter Ex. PW1/H to STO Ward no. 75 and as per reply at portion A no such firm was found registered CC No. 31/06 DA Vs. Sabir Ali Page 5 of 10 with the sales Tax. He deposed that he also sent a letter Ex. PW1/I to DHO, MCD but no reply was received. He deposed that during investigation accused was found vendor cum proprietor of said dairy. He deposed that after completion of investigation complete case file along with all statutory documents were sent through LHA to the Director, PFA Sh. Diwan Chand and then Director PFA after going through the file and after applying his mind gave his consent for prosecution vide Ex. PW1/J and accordingly FI Ram Pratap Singh filed the complaint in the court vide Ex. PW1/K. He deposed that intimation letter along with PA report was sent to the accused by registered post which was not received back undelivered vide Ex. PW1/L. Postal registration receipt is Ex. PW1/M
8. During his cross examination he stated that the capacity of the drum was about 20 litres and there was 67 litres of buffalo milk in the drum. He admitted that vendor gave a letter dated 30.08.2005 which was received in the department vide diary no. 537 dated 29.09.2005 yhat the sample was of double toned milk vide Ex. PW1/D1. He admitted that another letter of vendor dated 25.09.2005 was received vide Diary No. 524 dated 28.09.2005 that the sample was of double toned milk vide Ex. PW1/D2 along with a photocopy of bill Mark Y allegedly issued by Gopaljee. He denied the suggestion that the sample was taken from a freezer having capacity of 300 litres and not from drum. He stated that plunger was already issued to the sub division and length of the plunger was about 2 1/2 to3 feet. He stated that plunger was not received with the charge but the same was already lying in the sub division. CC No. 31/06 DA Vs. Sabir Ali Page 6 of 10 He stated that the plunger was already clean and dry taken from the office. He denied the suggestion that plunger was not clean and dry and milk could not be homogenized properly as plunger was short in the length. He stated that after receiving the letter he visited the vendor but he did not disclose the address of Gopaljee. He stated that he does not know the head office of Gopaljee Dairy. He stated that he knows that Gopaljee used to sell the milk but he does not know the address of Gopaljee. He stated that he is not aware whether any nominee was appointed by Gopaljee. He denied the suggestion that he did not make efforts to find out the address and name of the nominee of Gopaljee from their department. He denied the suggestion that he intentionally did not make efforts to prosecute Gopaljee.
9. PW2 then SDM/LHA Sh. Anil Banka, PW3 FA Naubat Singh and PW4 Sh. L.R. Meena, the then SDM/LHA 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.
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.
CC No. 31/06 DA Vs. Sabir Ali Page 7 of 10
12. At the outset it was argued by Ld. Defence counsel Sh. M.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 Public Analyst used Gerber method which is not a sure/accurate test and accordingly no reliance can be placed upon the Public Analyst's report.
13. To establish its case of adulteration i.e. that the sample of Buffalo's milk was not conforming to the standards the prosecution is relying upon the report of Public Analyst dated 29.09.2005 as the accused had not moved any application u/s 13 (2) for sending the second counterpart of the sample to Director, CFL. Hence the outcome of the trial has to be decided on the basis of the Public Analyst's report only. The Public Analyst had reported that the sample of Buffalo milk did not conform to the standards as the milk fat and milk solids not fat were less than the prescribed minimum limit of 6.0% and 9.0% respectively. However as per the report of the Public Analyst he used the Gerber method for the purpose of analyzing the sample of buffalo milk so collected by the Food Inspector. Thereafter By difference he calculated the contents of the milk solids not fat in the sample of buffalo milk. 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: CC No. 31/06 DA Vs. Sabir Ali Page 8 of 10
".......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 Public Analyst used the Gerber method no reliance can be placed upon the report for the purpose of concluding whether the sample of buffalo 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. CC No. 31/06 DA Vs. Sabir Ali Page 9 of 10
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 7th July 2014 ACMMII/ New Delhi
CC No. 31/06
DA Vs. Sabir Ali Page 10 of 10