Indian Kanoon - Search engine for Indian Law

7 Statement of the accused was recorded u/s 313 Cr.PC in which he pleaded his innocence. No defence evidence was led.

8 The Ld. MM on the basis of the evidence concluded that as per the Public Analyst report the sample was deficit in respect of "milk fat", "msnf" and "total solids" and thereby convicted and sentenced the accused.

9 Aggrieved by the said judgment, present appeal has been filed.

10 It is argued on behalf of the appellant that it is the Gerber Method which has been used by the Public Analyst to ascertain the Fat content had been held by the Supreme Court in the case of "Corporation of Nagpur v. Neetam Manikrao Kature & Ors., 1998 SCC (Cri) 564" to be not a sure test and, thus, findings arrived at on the basis of this Test cannot be relied upon. It is also submitted that the procedure adopted for taking the sample was highly defective as no plunger was used for homogenization of the sample.

Furthermore, there is no postal receipt on record in proof of service of Public Analyst report which was in fact never served upon the appellant because of which he was unable to exercise his right u/s 13 (2) and his right under the Act has been seriously prejudiced. It is, thus, submitted that the appellant be acquitted.

11 Ld. Special PP on behalf of the Department has argued that not only Gerber Method but also other tests had been performed to determine the adulteration in the sample of "Toned Milk". The Ld. ACMM has rightly convicted the accused and the present appeal is liable to be dismissed. 12 I have heard the arguments and have perused the record. My observations are as under : -

13 At the outset from the perusal of the Public Analyst it is evident that the "milk fat" has been determined by following the Gerber Method and the "msnf" has been worked out as difference from total solids and no independent test has been followed for determination of "msnf". 14 It has been held by the Supreme Court in the case of "Neetam Manikrao Kature's case (supra)" that Gerber'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. 15 The Public Analyst, however, followed Gerber's Method and his reports based on such test is not reliable. The Manual of Methods of Analysis of Foods issued by Directorate General of Health Services, Ministry of Health and Family Welfare, Government of India, no doubt prescribes Gerber Method for determination of fat in "milk" but the same Manual also prescribes two other methods namely Roese-Gottlieb Method and Werner Schmidt Method for the said determination. Once the Supreme Court has accepted the uncertainty of Gerber Method, no explanation is forthcoming as to why this method is being followed instead of two other methods. The report of the Public Analyst, which is based on the said test can, therefore, not be held reliable. 16 In this context it would also be pertinent to refer to the process by which the sample had been lifted. As per PW1 the "Toned Milk" was lying in an open tub and the same was mixed with the help of four litre measure by pouring and re- pouring the milk several times and the milk was also mixed by rotating clockwise and anti-clockwise. PW1 has further explained in his cross-examination that the drum was having a height of 2½ ft and diameter of 2½ ft. The measure was made of a four litre of Vanaspati Dabba.