Delhi District Court
Da vs Tota Ram Etc. on 8 December, 2017
IN THE COURT OF SAMAR VISHAL,
Additional Chief Metropolitan Magistrate - II (New Delhi),
Patiala House Courts, New Delhi
CC No. 41912/2016
Date of Institution : 07.06.2006
Date of reserving judgement : 17.11.2017
Date of pronouncement : 08.12.2017
In re:
Delhi Administration / Food Inspector
Department of PFA,
Govt. of NCT of Delhi
A-20, Lawrence Road Industrial Area,
Delhi-110035 ... Complainant
versus
A-1) Sh. Tota Ram
S/o Sh Shiv Charan
Tanker No. UP-13K-4651
Owned by : M/s Gokul Dairy
RZ-B116, Vijay Enclave Shiv Main Market,
Palam, Delhi - 46
R/o Darvesh Pur Post : Sikarpur
Distt. Buland Shahar (U.P.)
A-2) Sh. Sanjeev Kumar
M/s Gokul Dairy
RZ-B116, Vijay Enclave Shiv Main Market
Palam, Delhi - 46
R/o RZ-B116, Vijay Enclave
Shiv Main Market Palam,
Delhi - 46 ... Accused Persons
CC No. 41912/2016 Page No. 1/12
DA vs Tota Ram etc.
JUDGMENT:
1. The present is a complaint filed under section 16 of the Prevention of Food Adulteration Act, 1954 (PFA Act), alleging that the accused persons have violated the provisions of the PFA Act and Rules.
2. As per the complaint, on 24.08.2005 at about 10:15 PM, the Food Inspector (herein after referred to as FI) Sh P.M. Kothekar and Sh Jagdish Prasad Field Assistant (herein after referred as FA) under the supervision of Local Health Authority (LHA)/SDM Sh. S.P. Bhardwaj, were present at Ghazipur Check Post and intercepted a Tanker bearing No. UP-13K-4651 which was driven by accused No. 1 Tota Ram. The said tanker was having the cow's milk i.e. food article for sale for human consumption. The FI disclosed his identity and expressed his intention to purchase a sample of milk from the accused No. 1 to which he agreed. The sample consisted of approx 1500 ml of 'Cow Milk" (ready for sale) taken from the above said tanker declaration as Cow's Milk. The sample was then taken as per procedure prescribed under the PFA Act and Rules. The sample was taken after properly homogenization with the help of clean and dry plunger by rotating it in all possible directions. The FI divided the sample then and there into three equal parts by putting them in three separate clean and dry bottles. 40 drops of formalin was added in each sample bottle. Each bottle containing the sample was separately packed, fastened, and sealed according to PFA Act and Rules. The vendor's signature were obtained on LHA slip and wrapper of the sample bottles. Notice was given to the accused and price of the sample was also CC No. 41912/2016 Page No. 2/12 DA vs Tota Ram etc. given to him vide vendor's receipt dated 24.08.2005. Panchanama was prepared at the spot. All the documents prepared by the FI, were signed by the accused No. 1 and other witness Sh Jagdish Prasad FA. Before starting sample proceedings efforts were made to join public witnesses but none came forwards, as such FI Sh Jagdish Prasad FA was joined as a witness.
3. It is further stated that one counter part of the sample bearing LHA Code No. 23/LHA/11709 was also sent to Public Analyst, Delhi in intact condition and two counter parts were deposited with LHA in intact condition. Public Analyst analyzed the sample and found the same to be non-conforming to the standards prescribed under the PFA Act and Rules. The report of the PA is as follows -
"The sample does not confirm to standard because milk solids not fat is less than the prescribed minimum limit of 8.5%"
4. It was found that accused no. 1 Tota Ram was the vendor-cum- salesman of M/s Gokul Diary, RZ-B116, Vijay Enclave Shiv Main Market Palam, Delhi - 46 and the cow milk in the tanker bearing No UP-13K-4651 owned by M/s Gokul DiaryRZ-B116, Vijay Enclave Shiv Main Market Palam, Delhi - 46 at the time of sampling. It is further stated that accused No. 2 Sanjeev Kumar is the proprietor of M/s Gokul Diary and as such the accused no. 1 who is the vendor cum salesman as well as accused No. 2 are in charge of and responsible for day to day conduct of the bsuiness of the said diary.
CC No. 41912/2016 Page No. 3/12DA vs Tota Ram etc.
5. After completion of investigation, sanction under section 20 of the PFA Act was obtained from the Director PFA. The complaint was then filed in the court by FI on 07.06.2006 alleging violation of section 2(ia)(a) & (m) of PFA Act, as punishable section 7/16(1)(a) of PFA Act.
6. As the complaint was filed in writing by a public servant, recording of pre-summoning evidence was dispensed with and the accused persons were summoned vide order dated 07.06.2006. The accused persons appeared before the Court and exercised their option of analysing the counter part through CFL under section 13 (2) of the PFA Act. Based on the CFL report as well as evidence led in pre charge evidence, charges was framed against the accused persons on 08.04.2009 for commission of the offence punishable under section 7/16(1) (a) PFA Act being violation of Section 2(ia)(a) and (m) of PFA Act, to which accused person pleaded not guilty and claimed trial.
7. At the trial, the prosecution examined three witnesses in support of its case. PW-2 FI Sh P.M. Kothekar and PW-3 FA Sh Jagdish Prasad were part of the team that had visited the spot for sample proceedings under the supervision of SDM/LHA Sh S.P. Bhardwaj. These witness narrated the steps undertaken by them during the sample proceedings, including disclosing their identity, expressing intention to purchase sample for analysis, lifting the sample of Cow's Milk of 1500 ml, having declaration as Cow's Milk on the Tanker bearing No. UP-13K-4651, the sample was taken with the help of dry and clean plunger by rotating it in all possible directions CC No. 41912/2016 Page No. 4/12 DA vs Tota Ram etc. in the tanker itself, divided the sample into three equal parts by putting them in three separate clean and dry bottles, 40 drops of formalin was added in each sample bottle, all the sample bottles were separately packed, fastened, marked and sealed, obtaining signature on LHA slip, obtaining signature of vendors on the LHA slip and wrappers of the counterparts and obtaining signatures of vendor and witnesses. They also proved the necessary documents including the vendor's receipt Ex. PW-1/A, Notice as per Form-VI Ex. PW-1/B and Panchnama Ex. PW-1/C. On the next working day, i.e. 25.08.2005, one counterpart of sample along with Memo as per Form-VII were sent to Public Analyst (PA) for analysis vide PA Receipt Ex. PW-1/D and remaining two counterparts with copy of Memos were deposited with LHA/SDM vide receipt Ex. PW-1/E. PA report Ex. PW-2/A was received and upon direction of SDM/LHA, further investigation was carried out by PW-2. PW-2 sent letter Ex. PW2/B to vendor which was received back undelivered. The delivered envelop Ex.PW2/C received from postal department. PW2 sent letter Ex.PW2/D to accused No. 2 and received its reply Ex.PW2/E wherein it was disclosed that accused No. 2 was the proprietor of M/s Gokul Diary. PW-2 also received replies Ex.PW2/F, Ex.PW2/F1 and Ex.PW2/F2 from accused No. 2. Thereafter after compeltion of investigation PW2 sent the entire case file to Director PFA through LHA for obtaining his Consent and then Director PFA Sh K.S. Wahi and received Consent Ex.PW2/G. Thereafter the present complaint Ex.PW2/H was file before the Court. PW-2 also sent intimation letter Ex.PW2/I alongwith copy of PA report to accused person through registered post Mark X-6. These witnesses were duly cross-examined by Ld. CC No. 41912/2016 Page No. 5/12 DA vs Tota Ram etc. Defence Counsel.
8. Statement of the accused persons under section 313 CrPC were recorded on 19.02.2016, wherein they denied the allegations and pleaded innocence. The accused persons chooses not to lead defence evidence and vide order dated 25.04.2016 defence evidence was closed and the matter was fixed for final arguments.
9. I have heard the arguments advanced by Ld. SPP for the complainant and Ld. Defence Counsels for the accused persons and have carefully perused the material available on record.
10. In a criminal case, the burden is only on the prosecution to prove its case against the accused beyond reasonable doubt by leading positive evidence. This burden cannot be shifted to the accused and it has to be necessary discharged by the prosecution itself.
11. The present case alleges adulteration in the sample of milk collected from the business concern of the accused persons. This sample of milk has been analysed twice, firstly by the PA and secondly, by the CFL.
12. As per section 13(3) of the PFA Act, the certificate issued by the Director of CFL shall supersede the report of the PA. As per proviso to section 13(5) of the Act, such certificate shall be final and conclusive evidence for the facts stated therein. Thus, as far as the findings of the CFL are concerned, the same are final and CC No. 41912/2016 Page No. 6/12 DA vs Tota Ram etc. conclusive and no evidence can be given to disprove the same.
13. In Calcutta Municipal Corporation v. Pawan Kumar Saraf [AIR 1999 SC 738], it has been authoritatively laid down that the legal impact of a certificate of the Director of CFL is three fold: (a) it annuls or replaces the report of the PA, (b) it gains finality regarding the quality and standard of the food article involved in the case and (c) it becomes irrefutable so far as the facts stated therein are concerned.
14. In Subhash Chander v. State, Delhi Administration [1983(4) DRJ 100], it was observed by Hon'ble High Court of Delhi that "It has repeatedly been held by the supreme court that the certificate of the Director supersedes the report of the public analyst and is to be treated as conclusive evidence of its contents. The Director is a greater expert and therefore the statute says that his certificate shall be accepted by the court as conclusive evidence. For all purposes the report of the public analyst is replaced by the certificate of the Director.... Superseded is a strong word. It means obliterate, set aside, annul, replace, make void, inefficacious or useless, repeal. The Director's certificate supersedes the report given by the public analyst. Once superseded it does not survive for any purpose. It will be anomalous to hold that for some purpose it survives and for other purposes it is superseded."
15. The scheme of Act would show that CFL has been, in a way, given the status of an appellate expert over the findings of PA. In the CC No. 41912/2016 Page No. 7/12 DA vs Tota Ram etc. landmark judgement titled as MCD v. Bishan Sarup [ILR 1970 (1) Delhi 518], the full bench of Hon'ble High Court of Delhi observed that "According to the scheme of the Act, the Director of Central Food Laboratory is constituted to be a sort of greater expert than the Public Analyst and his certificate supersedes the report of Public Analyst under sub-section (3) of section 13". The Hon'ble Court also took a note of the ruling in Municipal Corporation of Delhi v. Ghisa Ram [AIR 1967 SC 970] wherein it was observed that the right has been given to the vendor for his satisfaction and proper defence, to get the sample analysed by a "greater expert whose certificate is to be accepted by court as conclusive evidence". What is important to be noted is, that no such finality and conclusiveness has been attached to the report of PA and it has been only attached to the report of CFL. Reliance can be placed on Municipal Corporation of Delhi v. Zahiruddin [ILR (1972) 1 Del 630]. Thus, evidence can be given by the accused to disprove the report of PA, but once the accused exercises his right under section 13(2) of the Act upon which Certificate is given by CFL, such a certificate of CFL would supersede the PA report and would become final and conclusive.
16. Although the report of CFL has superseded the report of PA but the PA report is discussed only for the reference. The adulteration alleged in the present case is that the milk solids not fat are less than the prescribed minimum. Although, the sample was passed by PA as well as by CFL in relation to milk fat. As per the report of PA, milk solids not fat were 7.99%. As per the report of CFL, the milk solids not fat were 8.38%. The prescribed minimum of milk CC No. 41912/2016 Page No. 8/12 DA vs Tota Ram etc. solids not fat as per rules is 8.5%. Milk solids not fat contains lactose, caseins, whey proteins and minerals (ash contents). The milk solids not fat has to be not less than 8.5%. In the present case, these are found to be 8.38%. The margin is therefore 0.12%. It means that the milk solids not fat in the sample milk was less only by 0.12%. Since this is such a low marginal difference that the accused can be given a benefit of doubt in view of the judgment of Hon'ble Supreme Court of India in P.S. Sharma vs Madan Lal Kasturi Chandji & Anr 2002(2) FAC 224, wherein the Hon'ble Court in a case where the difference came down to only 1% from the standard quality has upheld the order of acquittal. The order reads as under :-
"This appeal is directed against an order of acquittal in proceedings arising under the Prevention of Food Adulteration Act, 1954.
2. On the basis that the samples of the milk taken from the respondents contained 6.6 per cent of milk fat and 7.5 per cent of milk solids non-fat, sample contained 3.01 milk fat and 11.02 per cent milk solids non-fat. The difference ultimately came down to only one per cent from the standard quantity. On this aspect, the contention put forth on behalf of the respondents is that the difference in percentage is on account of the circumstance that the distribution of fat in the milk in separate sample bottles will not be even as a result of violent churning of the milk. When marginal difference like one per cent was noticed by the Public Analyst or by the Central Food Laboratory, the Courts have taken the view that it is possible that there may be some error creeping in the conclusion reached thereto. In somewhat similar circumstances, CC No. 41912/2016 Page No. 9/12 DA vs Tota Ram etc. this Court has upheld the orders of the courts below acquitting the accused in the case of Administrator of the City of Nagarpur vs. Laxman & Ors. Criminal Appeal No. 132/1986, decided on 4th May, 1994, 1996(2) FAC 297. The view taken by the High Court of Gujrat in State vs Bhagubhai Ramjibai 1982 (II) FAC 314:
1982(2) GLR Vol. 23, 624, followed by High Court is also on the same lines.
Therefore, our inference in the present case is no called for. The appeal is accordingly dismissed."
17. In the present case, the quantity of milk solids not fats was less than by 0.12% only and therefore applying the aforesaid precedent of the Hon'ble Supreme Court of India, the accused can be given a benefit of doubt on the ground that in the present case also there may be some error which might have crept in arriving at the conclusion by the CFL.
18. Further, the allegations of adulteration is on the basis of the fact that the milk solids not fat were found to be less by both PA and CFL. In his defence the accused has relied upon the judgment of the Hon'ble Rajasthan High Court in Heer Singh vs State of Rajasthan I(19992)CCR 589 wherein it was observed that when the percentage of fat was higher, then the prescribed standard and percentage of solids not fat was slightly lower and the aggregate of two was more than the aggregate of the standard. The inevitable inference was that the test was erroneous or that there was imbalance in the fodder fed to the cow, which resulted in high percentage of fat while low percentage of solids not fat.
CC No. 41912/2016 Page No. 10/12DA vs Tota Ram etc.
19. The defence has further relied upon the judgment of Hon'ble Supreme Court of India in Administrator of City of Nagpur vs Laxman and another Criminal Appeal No 132/2016 decided on 04.05.1986 wherein it was decided that "This appeal against acquittal arises under Prevention of Food Adulteration Act. The whole question is whether the sample of cow milk is adulterated so as to attract the penal provision of the Act. Learned Magistrate who acquitted the respondent who was a small milk vendor noted that the fat percentage is 6% as against 3.5% which is more than the standard prescribed for cow milk. The only shortfall was that S.N.F. was 7.3% where it ought to have been 8.5%. Further, it noted that the total solids are 13.37 which is again more than the satisfying standard of cow milk. Under these circumstances, we cannot say that Courts below have erred in acquitting them giving the benefit of doubt to the respondents. The appeal is, therefore, dismissed. However, other questions of law which have been debated by the courts below do not really matter. Therefore, we do not propose to examine the same. "
20. The defence has further relied upon the judgment of Hon'ble Allahabad High Court in Pappu Singh vs State of U.P. Criminal Revision No.421 of 1997 decided on 21.04.1997 - "In the present case, the milk was said to be mixed milk and the Prevention of Food Adulteration Rules, Appendix-B,Entry A. 11-01- 11 provided for mixed milk, the minimum percentage f milk fat as 4.5% and of milks solids non-fatty as 8.5%. as against this prescribed standard, the report of the public analyst in the present CC No. 41912/2016 Page No. 11/12 DA vs Tota Ram etc. case showed that he found 5.4% milk fat (as against 4.5% minimum as provided in the standard), though thenon-fatty solids were found to be 7.7%. There is a variatio in the case of non-fatty solids on the lower side as per the report of the public analyst but it is difficult to extract from mixed milk non-fatty milk solids while leaving the milk fat surplus beyond the prescribed standard. In the normal course, the effort is to take out milk fat from the milk so that it could be sold away for profit. When the milk fat has been left intact to the extent that it was found surplus, it is difficult to believe that non-fatty solid will be extracted from the milk. I am fully inclined to follow the authority of Duli Chand vs State of U.P. 1987(1) FAC 374 in the present case and hold the report of the public analyst to be doubtful."
21. In the present case, if we add the fat and solids not fat of CFL Report, it will come to 12.45%, which is more than the minimum requirement of total solids as 12.3% as per PFA Rules. There is no positive evidence of mixing of water in the milk which could have lowered the milk solids not fat because otherwise milk fat would also have been reduced, which is not the case here. Therefore relying upon the aforesaid authorities, the accused is given a benefit of doubt and is accordingly acquitted.
Announced in the open court this 08th day of December 2017 [SAMAR VISHAL] ACMM-II (New Delhi), PHC CC No. 41912/2016 Page No. 12/12 DA vs Tota Ram etc.