Delhi District Court
Da vs . Amar Nath Giri Page 1 Of 10 on 23 February, 2015
IN THE COURT OF GAURAV RAO
ADDITIONAL CHIEF METROPOLITAN MAGISTRATEII,
PATIALA HOUSE COURTS, NEW DELHI
C.C. No. 72/11
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
Amar Nath Giri s/o Dev Kant Giri
M/s Amar Nath Food Pack
Stall No. 15, Pragati Food court
ITPO Pragati Maidan
New Delhi.
R/o A68, Dipak Vihar, Vikas Nagar,
Uttam Nagar, Delhi110059.
Permanent address: Vill. & PO Unnao
Distt. Kanpur, UP.
........ VendorcumProprietor
Serial number of the case : 72/11
CC No. 72/11
DA Vs. Amar Nath Giri Page 1 of 10
Date of the commission of the offence : 19.11.2010
Date of filing of the complaint : 15.04.2011
Name of the Complainant : Sh. Ranjeet 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.
Plea of the accused : Pleaded not guilty
Final order : Acquitted
Arguments heard on : 23.02.2015
Judgment announced on : 23.02.2015
Brief facts of the case
1.In brief the case of the prosecution is that on 19.11.2010 at about 05.00 p.m. Food Inspector R.K. Bhaskar and Field Assistant Sh. S. Mishra under the supervision and directions of SDM / LHA Sh. Kaushal Kishore visited M/s Amar Nath Food Pack, Stall no. 15, Pragati Food Court, ITPO, Pragati Maidan, New Delhi, where accused Amar Nath Giri who was the vendorcumproprietor was found present conducting the business of sale of various food articles including Dahi lying in an open steel container bearing no label declaration for being used for preparation of chaat & dahi bhalla etc. 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 dahi.
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 CC No. 72/11 DA Vs. Amar Nath Giri Page 2 of 10 conforming to the standards because milk fat were less than the prescribed minimum limit of 6.0% 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 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 15.04.2011. 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 03.05.2011. The Director, CFL after analysing the sample opined vide its Certificate dated 13.05.2011 that "sample does not conform to the standards of Curd prepared from Buffalo Milk as per PFA Rules 1955 as per tests performed". The Director so opined as milk fat and milk solids not fat were found less than the prescribed minimum limit of 6.0% and 9.0% 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 accused vide order dated 23.08.2011 to which accused pleaded not guilty and claimed trial.
CC No. 72/11 DA Vs. Amar Nath Giri Page 3 of 10
5. The complainant/prosecution examined three witnesses i.e. Food Inspector R.K. Bhaskar as PW1, the then SDM/LHA Sh. Kaushal Kishore as PW2 and Field Assistant S. Mishra as PW3 and PE was closed vide orders dated 24.03.2014.
A brief scrutiny of the evidence recorded in the matter is as under:
6. PW1 Sh. R.K. Bhaskar deposed that on 19.11.2010 he was posted as FI in Sub DivisionConnaught Place, Delhi and on that day he alongwith FA Shri S. Mishra, under the supervision of SDM / LHA Shri Kaushal Kishore visited the premises of M/s Amar Nath Food Pack, Stall No. 15, Pragati Food Court, ITPO, Pragati Maidan, New Delhi, where accused Amar Nath Giri, was found conducting the business of above mentioned food stall having stored various food articles including Dahi for being used for preparation of chaat & dahi bhalla etc. He deposed that this Dahi was lying in an open steel container, bearing no label or declaration. He deposed that first of all, they disclosed their identity to the accused and after inspection of the food stall he expressed his intention to purchase a sample of Dahi from him for analysis to which he agreed. He deposed that before starting the sample proceedings he tried to associate some public witnesses in sample proceedings by requesting some customers and passersby , but none came forward then, on his request FA Shri S. Mishra agreed and joined as witness in sample proceedings. He deposed that thereafter, at about 5:00 PM he purchased from the accused 600 gms of Dahi, which was taken from the above mentioned steel container. He deposed that an amount of Rs. 30/ was CC No. 72/11 DA Vs. Amar Nath Giri Page 4 of 10 offered to the accused towards the price of the sample commodity vide Vendor's Receipt Ex. PW 1/A, bearing signature of vendor at point A but the vendor refused to accept the same while making an endorsement on this vendor's receipt at portion X to X that this Dahi was not for sale but was for preparation of chaat & dahi bhalla etc. He deposed that before taking the sample, the entire quantity of Dahi available in the container was properly mixed with the help of a clean and dry big spoon by rotating it in all possible directions, several times. He deposed that thereafter, 600 gms of Dahi was taken out of the container and was divided into three equal parts by putting it into three clean and dry sample glass bottles. He deposed that 16 drops of Formalin were added in each of the sample bottle with the help of a clean and dry dropper. He deposed that all the three sample bottles were separately packed, fastened, marked and sealed as per PFA Act & Rules. He deposed that LHA slips bearing signature and Code No. of LHA Shri Kaushal Kishore were affixed on all the three counterparts from top to bottom. He deposed that the vendor signed on each counterpart in such a manner so as to appear partly on LHA slips and partly on wrapper of the counterparts. He deposed that notice in Form VI was prepared vide Ex. PW 1/B and the vendor made similar endorsement at portion X to X on this Notice also as made by him on vendor's receipt. He deposed that a copy of this Notice was given to the vendor as per his acknowledgment at portion Y to Y thereon. He deposed that Panchnama was prepared vide Ex. PW 1/C. He deposed that all these documents 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 CC No. 72/11 DA Vs. Amar Nath Giri Page 5 of 10 C. He deposed that Raid Report under Rule 9(e) was prepared vide Ex. PW 1/D at the spot, bearing signature of LHA at point A, signature of witness at point B and his signature at point C. He deposed that accused/vendor furnished his statement at the spot vide Ex. PW 1/E, bearing his signature at point A and submitted photocopy of his ICard, which is Ex. P1, bearing his signature at point A. He deposed that on the next working day i.e. 20.11.2010, one counterpart alongwith a copy of Memo in Form VII in a sealed packet and another copy of Memo in Form VII in a separate sealed cover were deposited with PA vide PA's Receipt Ex. PW 1/F and the remaining two counterparts alongwith two copies of Memo in Form VII in a sealed packet were deposited with LHA on 20.11.2010 vide LHA Receipt Ex. PW 1/G, bearing his signature at point A and signature of LHA at point B, under intimation that one counterpart of the sample has already been deposited with the PA. He deposed that all the copies of Memo in Form VII were marked with Seal Impression with which the sample counterparts were sealed. He deposed that thereafter, he was transferred and the file was handed over to SDM / LHA.
7. During his cross examination he admitted that there was no declaration about putting the Formalin in the sampled article in the documents namely Notice in Form VI and Raid Report under Rule 9(e). He voluntarily stated that this fact has been mentioned in Panchnama. He denied the suggestion that the Formalin was not put in the sampled article. He admitted that the accused declared at the time of sample proceedings that the said Dahi was used for preparation of chaat and dahi bhalla but it CC No. 72/11 DA Vs. Amar Nath Giri Page 6 of 10 was not for direct sale. He stated that he can not say if the sample is not properly homogenized, the report of the laboratories will be wrong, fictitious and different. He stated that he is B.Sc in Physics, Chemistry and Math. He denied the suggestion that the sample was not properly homogenized or that due to which the report of both laboratories are wrong and different. He denied the suggestion that he was deposing falsely.
8. PW2 the then SDM/LHA Sh. Kaushal Kishore and PW3 Field Assistant S. Mishra deposed on the same lines as deposed by PW1 in his examination in chief. PW2 the then SDM/LHA Sh. Kaushal Kishore further deposed that PA Report was received vide Ex. PW 2/A, which revealed that the sample was not conforming to the standards and accordingly on his directions, FI Ranjeet Singh conducted the investigations and after conducting the investigations, he put the entire case file before him and he forwarded the same to the then Director PFA Shri K.S. Singh for obtaining his Consent. He deposed that the then Director PFA granted his Consent for prosecution vide Ex. PW 2/B, bearing his signature at point A. He deposed that thereafter, on his instructions, FI Ranjeet Singh filed the complaint before this Hon'ble Court vide Ex. PW 2/C, bearing his signature at point A. He deposed that then Intimation letter alongwith copy of PA Report was sent to the accused through registered post.
9. This so far is the prosecution evidence. Today matter is listed for CC No. 72/11 DA Vs. Amar Nath Giri Page 7 of 10 recording of statement of the accused u/s 313 Cr.P.C. however in my opinion taking into account the report of the Director, CFL no purpose shall be served by recording the statement of the accused/further continuation of trial in the present case.
10. To establish its case of adulteration i.e. that the sample of Dahi/Curd was not conforming to the standards the prosecution is relying upon the report of Director, CFL dated 13.05.2011 who had reported that the sample of curd prepared from 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 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 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. 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 CC No. 72/11 DA Vs. Amar Nath Giri Page 8 of 10 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."
11. 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.
12. 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 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 and milk products 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.
13. Accordingly in view of my above discussion and the law laid down in CC No. 72/11 DA Vs. Amar Nath Giri Page 9 of 10 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 SA is dispensed with as recording the same shall be an empty formality. Accused stands acquitted of the charges in the present case.
14. I order accordingly.
Announced in the open Court (Gaurav Rao)
on 23rd February 2015 ACMMII/ New Delhi
CC No. 72/11
DA Vs. Amar Nath Giri Page 10 of 10