Delhi District Court
Da vs . Deepak Gupta Page 1 Of 10 on 26 August, 2014
IN THE COURT OF GAURAV RAO
ADDITIONAL CHIEF METROPOLITAN MAGISTRATEII,
PATIALA HOUSE COURTS, NEW DELHI
C.C. No. 187/11
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
Deepak Gupta
S/o Late Sh. Harish Gupta
M/s Gupta Juice Corner,
Shop NO. N84, Kiosk near New Delhi House,
Barakhamba Road,
New Delhi
R/o WA186, Shakarpur,
Delhi92.
........ VendorcumProprietor
Serial number of the case : 187/11
Date of the commission of the offence : 30.06.2011
Date of filing of the complaint : 03.10.2011
Name of the Complainant : Sh. Ranjeet Singh, Food Inspector
CC No. 187/11
DA Vs. Deepak Gupta 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 : 26.08.2014
Judgment announced on : 26.08.2014
Brief facts of the case
1.In brief the case of the prosecution is that on 30.06.2011 at about 05.00 p.m. Food Inspector Ranjeet Singh and Field Assistant Sh. S. Mishra under the supervision and directions of SDM / LHA Sh. Kaushal Kishore visited M/s Gupta Juice Corner, Shop No. N84, Kiosk near New Delhi House, Barakhamba Road, New Delhi, where accused Deepak Gupta who was the vendorcumproprietor was found present conducting the business of sale of various food articles including Toned 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 Toned 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 Toned milk as per PFA rules 1955 as per tests performed as the Milk solids not fat were less than the prescribed minimum limit of 8.5% and accordingly after obtaining the necessary Sanction / Consent under Section CC No. 187/11 DA Vs. Deepak Gupta Page 2 of 10 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 03.10.2011. 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 15.10.2011. The Director, CFL after analysing the sample opined vide its Certificate dated 25.10.2011 that "the above sample does not conform to the standards of Toned milk as per P.F.A. Rules 1955 as per tests performed." The Director so opined as the milk fat and milk solids not fat were found at 2.5 and 6.66 against the minimum prescribed limit 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 accused vide order dated 25.02.2012 to which accused pleaded not guilty and claimed trial.
5. Today the matter was listed for prosecution evidence however no PW was present. So far the prosecution examined two witnesses i.e. FI Sh.Ranjeet Singh as PW1 and the then SDM/LHA Sh. Kaushal Kishore as PW2.
CC No. 187/11 DA Vs. Deepak Gupta Page 3 of 10 A brief scrutiny of the evidence recorded in the matter is as under:
6. PW1 FI Ranjeet Singh deposed that on 30.06.2011 he was posted as FI in Sub Division Connaught Place, Delhi and on that day I alongwith FA Sh. S. Mishra under the supervision of SDM/LHA Sh. Kaushal Kishore visited the premises of M/s Gupta Juice Corner, Shop No. N84, Kiosk near New Delhi House, Barakhamba Road, New Delhi, where accused Deepak Gupta was found conducting the business of above mentioned shop/ kiosk, having stored Toned Milk for use for preparation of Mango Shake etc. for sale for human consumption. He deposed that this toned milk was lying in open plastic jar, bearing no label label or declaration. He deposed that first of all he disclosed his identity to the accused and expressed his intention to purchase a sample of Toned Milk 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, passersby and the nearby kiosk vendors but none came forward. He deposed that then, on his request FA Shri S. Mishra joined as witness in sample proceedings. He deposed that thereafter, at about 5.00 p.m. he purchased from the accused 1500 ml of Toned Milk which was taken from above mentioned jar. He deposed that a payment of Rs. 39/ was offered to the accused/vendor towards the price of the sample commodity vide vendor's receipt Ex. PW1/A but the vendor refused to accept the same while making an endorsement on this receipt at portion X to X that the Toned Milk was for preparation of Mango Shake etc. for sale hence the price was not accepted. He deposed that first CC No. 187/11 DA Vs. Deepak Gupta Page 4 of 10 of all the entire quantity of Toned Milk was mixed properly by pouring and repouring the same with the help two clean and dry plastic jugs and thereafter the required quantity was taken and and put directly into clean and dry sample bottles by approximation. He deposed that 40 drops of Formalin were added in each 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 Sh. Kaushal Kishore were affixed on all the three counterparts. He deposed that vendor signed on each counterpart in such a manner so as to appear partly on LHA slip and partly on wrapper of the counterparts. He deposed that notice in Form VI was prepared vide Ex. PW 1/B and a copy of this Notice was given to the accused as per his acknowledgment at portion X to X 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 accused in Hindi and then 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 Raid Report under rule 9(e) was prepared vide Ex. PW 1/D, bearing signature of LHA at point A, signature of witness at point B and his signature at point C. He deposed that the accused submitted photocopy of his MCD License, photocopy of his DL and photocopy of NDMC receipt, which are Mark X to Mark X2 respectively. He deposed that on the next working day i.e. 01.07.2011 one counterpart along with 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 CC No. 187/11 DA Vs. Deepak Gupta Page 5 of 10 PA's receipt Ex. PW1/E and the remaining two counterparts along with two copies of Memo in Form VII in a sealed packet were deposited with LHA vide LHA Receipt Ex. PW 1/F under intimation that one counterpart of the same has already been deposited with 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 PA Report was received through LHA vide Ex. PW 1/G which revealed that the sample was not conforming to the standards and accordingly on the directions of SDM/LHA he started the investigations and during investigation he sent a letter Ex. PW1/H to the accused and received its reply vide Ex. PW1/H1 which revealed that the accused was the sole proprietor of above mentioned shop/kiosk. He deposed that the SDM/LHA also sent a letter to Municipal Office HealthNDMC vide Ex. PW1/I but no reply of the same was received. He deposed that he sent a letter to VATO Ward no. 2 vide Ex. PW1/J and received its reply on the same at portion X to X that no such firm by name of M/s Gupta Juice Corner was registered in that Ward. He deposed that on conclusion of investigations he found the vendor/accused Deepak Gupta was the proprietor of the shop/kiosk in question and was responsible for conducting its day to day business. He deposed that thereafter he put the entire case file before concerned SDM/LHA who forwarded the same to the then Director PFA for obtaining his consent and then Director PFA Sh. K.S. Singh granted his consent for prosecution of accused persons after applying his mind vide Ex. PW1/K. He deposed that then he filed the complaint before this court vide Ex. PW1/L. He deposed that intimation letter along with copy of PA's report were sent to the accused through registered post which were CC No. 187/11 DA Vs. Deepak Gupta Page 6 of 10 not received back undelivered. He deposed that intimation letter is Ex. PW1/M bearing signature of the then LHA at point A and photocopies of postal registration receipts are collectively Ex. PW1/N.
7. During his cross examination he admitted that the toned milk was not for direct sale. He stated that the capacity of the plastic jar was approximately 5 litre wherein the sample commodity was lying and there was approximately 3 litre of toned milk available in that jar. He stated that besides the jar 2 more plastic jugs were available with the accused which were clean and dry and were used for pouring and repouring. He stated that the Jar containing the toned milk was not used for pouring and repouring. He denied the suggestion that the sample commodity was not properly homogenized. He denied the suggestion that the above mentioned jugs were not clean and dry or that they were already containing some kind of juice. He denied the suggestion that sample was not homogenized or that the sample was taken without homogenization directly from the jar containing the toned milk. He denied the suggestion that the accused has been falsely implicated.
8. PW2 the then SDM/LHA Sh. Kaushal Kishore deposed on the same lines as deposed by PW1 in his examination in chief.
9. This so far is the prosecution evidence. In my opinion taking into account the report of the Director, CFL no purpose shall be served in further continuation of CC No. 187/11 DA Vs. Deepak Gupta Page 7 of 10 trial in the present case.
10. To establish its case of adulteration i.e. that the sample of Toned Milk was not conforming to the standards the prosecution is relying upon the report of Director, CFL dated 25.10.2011 who had reported that the sample of Toned Milk did not conform to the standards as the milk fat and milk solids not fat were less than the prescribed minimum limit of 3.0% 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 Toned Milk 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 Toned Milk so analyzed and thereafter By difference calculated the contents of the milk solids not fat in the sample of Toned 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 CC No. 187/11 DA Vs. Deepak Gupta Page 8 of 10 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 Toned 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.
13. 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. CC No. 187/11 DA Vs. Deepak Gupta Page 9 of 10
Accused stands acquitted of the charges in the present case.
14. I order accordingly.
Announced in the open Court (Gaurav Rao)
on 26th August 2014 ACMMII/ New Delhi
CC No. 187/11
DA Vs. Deepak Gupta Page 10 of 10