Delhi District Court
Da vs . Ravi Kumar Etc. Page 1 Of 11 on 27 August, 2014
IN THE COURT OF GAURAV RAO
ADDITIONAL CHIEF METROPOLITAN MAGISTRATEII,
PATIALA HOUSE COURTS, NEW DELHI
C.C. No. 135/11
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.Ravi Kumar S/o Sh. Vijay Kumar Tomar R/o H. No. F55, West Vinod Nagar, Mandawali Fazal Pur, Delhi110092 Permanent address:
VillageBiloch Pura, Post OfficeSarai DistrictBaghpat (UP) ........ Vendorcumcoowner
2. Vijay Kumar Tomar S/o Sh. Ram Singh R/o H. No. F55, West Vinod Nagar, Mandawali Fazal Pur, Delhi110092.
Permanent address: CC No. 135/11 DA Vs. Ravi Kumar etc. Page 1 of 11 VillageBiloch Pura, Post OfficeSarai, DistrictBaghpat (U.P).
.................Coowner.
Serial number of the case : 135/11 Date of the commission of the offence : 28.04.2011 Date of filing of the complaint : 27.06.2011 Name of the Complainant : Sh. Hukam 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 : Both Accused Acquitted Arguments heard on : 27.08.2014 Judgment announced on : 27.08.2014 Brief facts of the case
1. In brief the case of the prosecution is that on 28.04.2011 at about 03.00 a.m. Food Inspector Som Pal Singh and Field Assistant Sh. Brahma Nand under the supervision and directions of SDM / LHA Smt. Usha Chaturvedi were present at Pandav Nagar Road near Mother Dairy, Delhi110092 when they saw accused no. 1 Ravi Kumar coming driving one milk tanker bearing no. UP13B2009 from UP side towards Delhi. The tanker was carrying Mixed Milk for sale in Delhi. 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 CC No. 135/11 DA Vs. Ravi Kumar etc. Page 2 of 11 of Mixed Milk.
2. During the course of investigation it was revealed that accused no. 2 Vijay Kumar Tomar was the owner of the truck/tanker in question and it was joint business/he was the coowner of the mixed milk and therefore Incharge of and responsible for the day to day conduct of the business of the said "Mixed Milk".
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 did not conform to standard because milk fat was less than the prescribed minimum limit of 4.5% 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.
4. After the complaint was filed, the accused persons were summoned vide orders dated 27.06.2011.
5. 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 persons vide order dated 26.09.2012 to which accused persons pleaded not guilty and claimed trial.
CC No. 135/11 DA Vs. Ravi Kumar etc. Page 3 of 11
6. Today the matter was listed for prosecution evidence however no PW was present. So far the prosecution examined only one witness i.e. FI Sh. S. P. Singh as PW1.
A brief scrutiny of the evidence recorded in the matter is as under:
7. PW1 Sh. S. P. Singh deposed that on 28.04.2011 he was posted as FI in East District, Delhi. He deposed that on that day he alongwith FA Shri Brahmanand, under the supervision of SDM / LHA Ms. Usha Chaturvedi were present at Pandav Nagar Road, near Mother Dairy, Delhi where one Tanker No. UP17B2009 was found coming from Mayur Vihar side. He deposed that it was stopped and it was carrying Mixed Milk. He deposed that accused Ravi Kumar was present in the aforesaid tanker and he disclosed himself to be the owner of Mixed Milk. He deposed that first of all, they disclosed their identity to the accused and after inspection of the shop, he expressed his intention to purchase a sample of Mixed 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 passers by, but none agreed. He deposed that then, on his request FA Brahmanand agreed and joined as witness in sample proceedings. He deposed that thereafter, at about 3:00 AM, he purchased from the accused Ravi Kumar 1.5 litre of Mixed Milk, on payment of Rs. 36/ vide Vendor's Receipt Ex. PW 1/A, bearing signature of vendor at point A. He deposed that before taking the sample, the 'Mixed Milk' was properly CC No. 135/11 DA Vs. Ravi Kumar etc. Page 4 of 11 mixed with the help of a clean and dry plunger and thereafter 1.5 litre of Mixed Milk was taken out in a clean and dry steel jug. He deposed that thereafter, it was divided into three equal parts by putting it into three clean and dry sample glass bottles. 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 Ms. Usha Chaturvedi 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 a copy of this Notice was given to the vendor Ravi Kumar 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 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 Raid Report under Rule 9(e) was prepared at the spot 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 on the same day i.e. 28.04.2011, 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/E and the remaining two counterparts alongwith two copies of Memo in Form VII in a sealed packet were deposited with LHA on same day vide LHA CC No. 135/11 DA Vs. Ravi Kumar etc. Page 5 of 11 Receipt Ex. PW 1/F, 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 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. He deposed that during investigation, he sent a letter to RTO Baghpat, U.P. vide Ex. PW 1/H and received its reply on the back of the same at portion X to X that vehicle No. UP17B2009 was registered in the name of Vijay Singh Tomar S/o Sh. Ram Singh. He deposed that he also sent a letter to accused Ravi Kumar through registered post vide Ex. PW 1/I and also sent a copy of the same to accused Vijay Kumar Tomar but no reply of the same was received. He deposed that on conclusions of investigations, he found that accused Vijay Kumar was the owner of the tanker. He deposed that thereafter, he sent the entire case file to Director PFA through SDM / LHA for obtaining his Consent and the then Director PFA Sh. K.S. Singh granted his consent for prosecution after applying his mind vide Ex. PW 1/J, bearing his signature at point A. He deposed that he recognize his signature as he has seen his signature on other official correspondence also. He deposed that thereafter, the file was marked to FI Hukam Singh for further proceedings.
8. During his cross examination he stated that he cannot give the details as to from where the passersby/public person who are arrayed as witness was coming CC No. 135/11 DA Vs. Ravi Kumar etc. Page 6 of 11 and going as he did not tell him the same. He denied the suggestion that he was not empowered to collect the sample at about 03.00 a.m. He stated that the tanker of milk from which the sample was lifted was passing from Pandav Nagar road near Mother Dairy. He admitted that Ravi Kumar was alone in the tanker at that time. He stated that local police was not joined in the investigation or sample proceedings. He stated that no information was given to the local PS. He stated that he does not remember the depth of tanker. He stated that the plunger was lying in the tanker with the accused. He stated that the plunger was about 5 feet long. He stated that no photograph of plunger or the tanker was taken at the spot. He stated that the number of the tanker was UP17B2009. He denied the suggestion that word 'cow's milk' was written on the tanker. He voluntarily stated that word 'Mixed milk' was written. He stated that he cannot say whether the sample of milk passed as per the standard of cow's milk. He denied the suggestion that the accused was transporting cow's milk in the tanker. He denied the suggestion that he deliberately wrote on the documents that the sample was of mixed milk and not cow's milk. He denied the suggestion that the milk could not be homogenized with the help of a plunger. He denied the suggestion that plunger was available with the accused. He stated that he takes out around 1.5 litres of milk from the tanker with the help of a measure. He stated that the measure was of 1 litre capacity. He stated that he therefore took out the milk from the tanker twice. He stated that he cannot say that while the milk is transported in a tanker from one place to another due to jerking the milk in the tanker develops lumps of the fat. He stated that he cannot say whether the lumps if any can only be dissolved by heating CC No. 135/11 DA Vs. Ravi Kumar etc. Page 7 of 11 the milk. He stated that he had not heated the milk prior to the lifting of the sample. He denied the suggestion that as the milk was not heated and as it had developed lumps while transporting the sample as lifted was not a representative sample. He admitted that they are imparted training by the lab however he denied the suggestion that they are given extensive training as to how different sample are to be lifted and also preliminary knowledge of the analysis. He stated that he was not told in his training as to the method of lifting the milk from a tanker. He stated that he had handed over the counterpart of the sample to the SDM/LHA. He stated that he does not know whether the LHA/SDM had stored the counterpart of the sample at room temperature or in refrigerator. He admitted that milk is perishable item. He stated that he cannot say that whether even after addition of formalin milk has to be stored in refrigerator or else it will decompose. He stated that both the the accused persons are in joint business of selling milk but he does not have any documentary evidence in this regard. He admitted that Vijay Kumar is the owner of the truck/tanker in question. He stated that he had not seen accused Vijay Kumar selling or transporting the milk or being present at the time of lifting of the sample. He denied the suggestion that this is a false case. He denied the suggestion that he is deposing falsely. He denied the suggestion that the sampled milk was cow's milk and it was wrongly declared as mixed milk.
9. This so far is the prosecution evidence. In my opinion taking into account the report of the PA no purpose shall be served in further continuation of trial in the CC No. 135/11 DA Vs. Ravi Kumar etc. Page 8 of 11 present case.
10. To establish its case of adulteration i.e. that the sample of mixed milk was not conforming to the standards the prosecution is relying upon the report of PA dated 03.05.2011 who had reported that the sample of mixed Milk did not conform to the standards as the milk fat were less than the prescribed minimum limit of 4.5%. However as per the report of the PA he used the Gerber method for the purpose of analyzing the sample of mixed milk so collected by the Food Inspector. It is reflected in his report that he used Gerber method for the purpose of calculating the percentage of milk fat in the sample of mixed Milk so analyzed and thereafter By difference calculated the contents of the milk solids not fat in the sample of mixed 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:
".......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."CC No. 135/11 DA Vs. Ravi Kumar etc. Page 9 of 11
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 PA used the Gerber method no reliance can be placed upon the report for the purpose of concluding whether the sample of mixed 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. Both accused persons stand acquitted of the charges in the present case. CC No. 135/11 DA Vs. Ravi Kumar etc. Page 10 of 11
14. I order accordingly.
Announced in the open Court (Gaurav Rao) on 27th August 2014 ACMMII/ New Delhi CC No. 135/11 DA Vs. Ravi Kumar etc. Page 11 of 11