Delhi District Court
Da vs . Manoj Kumar Etc. Page 1 Of 7 on 15 January, 2015
IN THE COURT OF GAURAV RAO
ADDITIONAL CHIEF METROPOLITAN MAGISTRATEII,
PATIALA HOUSE COURTS, NEW DELHI
C.C. No. 128/11
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
1.Manoj Kumar S/o Sh. Pratap Chand M/s Tamba Indian Cuisine, J2/6, B. K. Dutta Market, Rajouri Garden, New Delhi110027.
R/o 184A, Munirka Village, Munirka, New Delhi ................VendorcumAsstt. Manager
2. Varun Aggarwal S/o Sh. Har Narayan Aggarwal M/s Tamba Indian Cuisine, J2/6, B. K. Dutta Market, Rajouri Garden, New Delhi110027.
R/o S222, Greater Kailash Part II, CC No. 128/11 DA Vs. Manoj Kumar etc. Page 1 of 7 New Delhi110005 ....................Proprietor
3. Harmeet Singh Babbar S/o sh. Harvinder Singh M/s Standard Paneer, 14 A/34, WEA Karol Bagh, New Delhi110005.
R/o 3289, SF Ranjeet Nagar,
Delhi110008
................Proprietor/Supplier
Serial number of the case : 128/11
Date of the commission of the offence : 19.04.2011
Date of filing of the complaint : 23.06.2011
Name of the Complainant : Sh. Bal Mukand, 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.
Plea of the accused : Pleaded not guilty
Final order : Accused no. 1 is PO
Accused no. 2 and 3 acquitted.
Arguments heard on : 15.01.2015
Judgment announced on : 15.01.2015
Brief facts of the case
1. In brief the case of the prosecution is that on 19.04.2011 at about 06.00 p.m. Food Inspector Bal Mukund and Field Assistant Sh. Jagdish under the supervision and directions of SDM / LHA Mrs. Anju Mangla visited M/s Tamba Indian Cuisine, J2/6, B. K. Dutta Market, Rajouri Garden, New Delhi where accused Manoj CC No. 128/11 DA Vs. Manoj Kumar etc. Page 2 of 7 Kumar (since P.O.) who was the vendorcumAsst. Manager was found present conducting the business of restaurant having stored various food/dairy articles including Curd prepared from full cream milk for use in preparation of food articles/dishes 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 Curd.
2. During the course of investigation it was revealed that accused no 1 Manoj Kumar (since PO) was the vendorcumAssistant Manager of M/s Tamba Indian Cuisine and accused no. 2 Varun Aggarwal was the proprietor of the same and therefore both were responsible for and incharge of conducting its day to day business. Furthermore, the sample commodity was supplied to M/s Tamba Indian Cuisine by accused no. 3 i.e. Harmeet Singh Babbar who was the proprietor of M/s Standard Panner and hence was responsible for /incharge of conduct of its day to day business.
3. 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 because milk fat and milk solids not fat were less than the prescribed minimum limit of 6% 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 CC No. 128/11 DA Vs. Manoj Kumar etc. Page 3 of 7 punishable U/s 16 (1) (a) r/w Section 7 of the Act.
4. After the complaint was filed, the accused persons were summoned vide orders dated 23.06.2011. Accused no. 2 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 16.07.2011. The Director, CFL after analysing the sample opined vide its Certificate dated 02.08.2011 that "sample does not conform to the standards of Curd prepared from Buffalo Milk as per P.F.A Rules 1955 as per tests performed". The Director so opined as the sample was found not conforming to the standard because milk fat and milk solids not fat were less than the prescribed minimum limit of 6% and 9.0% respectively
5. During the course of trial, accused no. 1 Manoj Kumar stopped appearing in the court and vide proceedings dated 15.02.2012, the Ld. Predecessor declared him a proclaimed offender.
6. 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 accused Varun Aggarwal and Harmeet Singh vide order dated 19.01.2013 to which the accused persons pleaded not guilty and claimed trial. CC No. 128/11 DA Vs. Manoj Kumar etc. Page 4 of 7
7. So far the complainant/prosecution has examined only one witness i.e. Food Inspector Bal Mukund who had lifted the sample. His cross examination remains deferred vide proceedings dated 10.05.2014. Today the witness is available for cross examination however the witness is discharged without further cross examination as in my opinion taking into account the report of the Director, CFL no purpose shall be served in further continuation of trial in the present case.
8. To establish its case of adulteration i.e. that the sample of Curd prepared from Full cream milk was not conforming to the standards the prosecution is relying upon the report of Director, CFL dated 02.08.2011 who had reported that the sample of curd prepared from full cream 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% respectively. However as per the report of the Director, CFL, he used the Gerber method for the purpose of analyzing the sample of curd 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 curd so analyzed and thereafter By difference calculated the contents of the milk solids not fat in the sample of curd. 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 food substances/curd so as to give a finding/report regarding the milk fat and milk solids not fat in food articles as held by the Hon. Apex Court in Corporation of City of Nagpur Vs. CC No. 128/11 DA Vs. Manoj Kumar etc. Page 5 of 7 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."
9. 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.
10. 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 curd prepared from full cream 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 and milk products to find out the percentage of the milk fat and the same is also certified by Indian Standards CC No. 128/11 DA Vs. Manoj Kumar etc. Page 6 of 7 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.
11. 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 continuation of the trial shall be an exercise in futility with no prospect of a result in favour of prosecution. Accordingly PE is closed and SA is dispensed with. Accused no. 2 and 3 stand acquitted of the charges in the present case.
12. I order accordingly.
Announced in the open Court (Gaurav Rao)
on 15th January 2015 ACMMII/ New Delhi
CC No. 128/11
DA Vs. Manoj Kumar etc. Page 7 of 7