IN THE COURT OF SAMAR VISHAL, Additional Chief Metropolitan Magistrate - II, Patiala House Courts, New Delhi [PRECEDENT] Date of Institution : 10.11.2003 Date of reserving judgement : 20.08.2018 Date of pronouncement : 20.08.2018 In re: Delhi Administration / Food Inspector Department of PFA, Govt. of NCT of Delhi A-20, Lawrence Road Industrial Area, Delhi-110035 Complainant versus Sh. [ENTITY] S/o Sh. [ENTITY] M/s Yadav Dairy, RZ-23/2, Pardhan Chowk, Shadh Nagar, Palam Colony, New Delhi-45 R/o RZ 232, Shadh Nagar, Palam Colony, New Delhi 45 Accused JUDGMENT:
1. The present is a complaint filed under [SECTION] of the [ACT] (herein after referred to as [ACT]), alleging that the accused have violated the provisions of the [ACT] and Rules.
2. As per the complaint, on 7-8-2003 at about 17:30 hours, Food DA vs [ENTITY] Inspector [ENTITY] purchased a sample of 'Cow's Milk' a food article for analysis from accused [ENTITY] of M/s Yadav Dairy, RZ-23/2, Pardhan Chowk, Shadh Nagar, Palam Colony, New Delhi-45 where the said food article was stored for sale and where accused [ENTITY] was found conducting the business of the said food article at the time of sampling. The sample consisted 1500 ml. of 'Cow's Milk' taken out of open drum labeled as "Cow's Milk." The sample was taken under the supervision/direction of Sh. [ENTITY], SDM/LHA. The sample was taken after properly mixing with the measure lying in the drum. The Food Inspector 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 [ACT] and Rules. The vendor's signatures were obtained on the LHA slip and the wrapper of the sample bottles. Notice was given to accused [ENTITY] and the price of sample was also given to him vide vendor receipt dated 7-8-2003. [ENTITY] too was prepared at the spot. All the documents prepared by FI were signed by accused [ENTITY] and the other witness Sh. [ENTITY], FA. Before starting sample proceeding efforts were made to join public witnesses but none came forward, as such Sh. [ENTITY], FA was joined as witness.
3. One counter-part of the sample bearing LHA code No. 82/LHA/4791 was also sent to Public Analyst, Delhi in intact condition and two counter-parts were deposited with he LHA in intact condition. Public Analyst analysed the sample and found DA vs [ENTITY] the same to be non-conforming to the standards prescribed under the [ACT] and Rules. The report of the Public Analyst is as follows:
"The sample does not conform to standard because milk solids not fat is less than me prescribed minimum limit of 8.5%."
4. It is the case of the complainant that accused [ENTITY] slo Sh. [ENTITY] was the vendor-cum-proprietor of M/s Yadav Dairy, RZ-23/2, Pardhan Chowk, Shadh Nagar, Palam Colony, New Delhi-45 at the time of sampling and he is incharge of and responsible to day to day conduct of the business of the said dairy.
5. Thereafter on completion of investigation, sanction under [SECTION] of the [ACT] was obtained from the Director PFA. The complaint was then filed in the court on 10.11.2003 alleging violation of [SECTION] of [ACT] as punishable [SECTION]) of [ACT] against the accused persons.
6. As the complaint was filed in writing by a public servant, recording of pre-summoning evidence was dispensed with and the accused was summoned vide order dated 10.11.2003. The accused thereafter exercised their option of analysing the counter part through [ACT] under [SECTION] of the [ACT]. Based on the report of the [ACT] as well as evidence led in pre charge evidence, charge was framed against the accused for commission of the offence punishable under section [SECTION] [ACT] being violation of [SECTION] of [ACT], to which accused DA vs [ENTITY] person pleaded not guilty and claimed trial.
7. At the trial, the prosecution examined three witness in support of its case i.e. PW-1 FI Sh [ENTITY], PW-2 [ENTITY] and PW-3 SDM/LHA [ENTITY]. PW-1 and PW-2 were part of the team that had visited the spot for sample proceedings under the supervision of SDM/LHA Sh.[ENTITY]. These witness narrated the steps undertaken by them during the sample proceedings, including disclosing their identity, expressing intention to purchase sample for analysis, lifting of 1500 ml cow milk lying in an open drum bearing declaration as 'Cow's Milk for Sale' from the vendor for analysis, mixing the sample commodity by rotating it in all possible directions several times in the drum with the help of a measure, dividing the sample into three equal parts by putting them into three separate clean and dry sample glass bottles, putting 40 drops of formalin in each sample bottle, separately sealing, packing and marking the same and obtaining signatures of vendor and witnesses. They also proved the necessary documents including the vendor's receipt Ex.PW-1/A, Notice in form VI Ex. PW-1/B, [ENTITY] Ex. PW-1/C. Thereafter, one counterpart of the sample alongwith one copy of memo in form VII and another copy of memo in form VII in sealed deposited with PA vide receipt Ex.PW1/D on 08.08.2003. The remaining two counter parts of the sample in intact condition alongwith two copies of memo of Form VII in a sealed packet were deposited on 08.08.2003 with LHA vide LHA Receipt Ex.PW1/E, under intimation that one counterpart of the same has already been deposited with PA. Thereafter, PA Report Ex.PW1/F was received, according to which the sample was not conforming DA vs [ENTITY] to the standards because milk solids not fat is less than the prescribed minimum limit of 8.5%. Thereafter PW-1 sent letter Ex.PW1/G to STO Ward No. 61 and received reply stating that the said firm is not registered with this ward. He also sent letter PW1/H and Ex.PW1/J to accused and received reply Ex.PW1/K and Ex.PW1/L alongwith document Mark A. After completion of investigation, the entire case file was put before then Director PFA Shri [ENTITY] for obtaining his Consent. The then Director PFA granted his Consent for prosecution vide sanction order Ex. PW1/M against the accused. Thereafter the complaint Ex. PW1/N was filed in the Court. Then intimation letters Ex.PW1/O was sent along with copy of PA Reports to the accused through post vide Ex.PW1/P. These witnesses were duly cross-examined by Ld. Defence Counsel.
8. Statement of the accused under [SECTION] [ACT] were recorded on 21.09.2015 wherein the accused denied the allegations and pleaded innocence. The accused has not lead defence evidence accordingly the matter was listed for final arguments.
9. 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.
10. The present case alleges adulteration in the sample of milk collected from the business concern of the accused. This sample of milk has been analysed twice, firstly by the PA and secondly, by the [ACT].
DA vs [ENTITY]
11. As per [SECTION] of the [ACT], the certificate issued by the Director of [ACT] shall supersede the report of the PA. As per proviso to [SECTION] of the Act, such certificate shall be final and conclusive evidence for the facts stated therein. Thus, as far as the findings of the [ACT] are concerned, the same are final and conclusive and no evidence can be given to disprove the same.
12. In [PRECEDENT], it has been authoritatively laid down that the legal impact of a certificate of the Director of [ACT] 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.
13. In [PRECEDENT], 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 DA vs [ENTITY] anomalous to hold that for some purpose it survives and for other purposes it is superseded."
14. The scheme of Act would show that [ACT] has been, in a way, given the status of an appellate expert over the findings of PA. In the landmark judgement titled as [PRECEDENT], 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 [SECTION]". The Hon'ble Court also took a note of the ruling in [PRECEDENT] 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 [ACT]. Reliance can be placed on [PRECEDENT]. Thus, evidence can be given by the accused to disprove the report of PA, but once the accused exercises his right under [SECTION] of the Act upon which Certificate is given by [ACT], such a certificate of [ACT] would supersede the PA report and would become final and conclusive.
15. Therefore, although [ACT] report supersedes PA report but if the accused can show that the sample taken by the Food Inspector DA vs [ENTITY] was not representative sample then he is entitled for a benefit of doubt. In the present case, the PA report is also important because not only is there a variation but a contradiction between the PA report and the [ACT] report. According to PA report, the milk fat was found to be as per standard i.e. 3.6%, which has to be not less than 3.5%. On the contrary, in the [ACT] report, the milk fat was found to be 3.3%. The milk solids not fat, were not found to be according to standards in the [ACT] report i.e. 7.2% as well as PA report which should not be less than 8.5%. Therefore, its clear that both the reports are contradictory to each other as far the presence of milk fat is concerned. The PA report has passed the sample of Cow Milk in fat whereas the [ACT] report has failed the sample in milk fat. Therefore, such a contradiction on both the reports, gives a substantial clue in favour of the accused that the sample lifted was not a representative sample. Although the report of [ACT] has superseded the report of PA but the PA report is discussed only for the reference.
16. Further the adulteration alleged in the present case is that the milk fat and milk solids not are less than the prescribed minimum. As per the report of [ACT], the milk fat was 3.3%. The prescribed minimum of milk fat as per rules is 3.5%. The milk solid not fat has to be not less than 8.5%. In the present case, it was found to be 7.2%. The margin of milk fat is therefore 0.2%. It means that the milk fat in the sample milk was less only by 0.2%. 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 [PRECEDENT], wherein the Hon'ble Court in a case where the DA vs [ENTITY] 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 [ACT].
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,the proceedings were initiated. As per report of the Public Analyst , the 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, this Court has upheld the orders of the courts below acquitting the accused in the case of [PRECEDENT]. [CASE NUMBER], decided on 4th May, 1994, 1996(2) FAC 297. The view taken by the High Court of Gujrat in [PRECEDENT], 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."
DA vs [ENTITY]
17. In the present case, the quantity of milk fat was less than by 0.2% 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 [ACT].
18. Therefore on the basis of the aforesaid discussion, the accused is given a benefit of doubt and is accordingly acquitted.
Announced in the open court this 20th day of August 2018 SAMAR VISHAL ACMM-II (New Delhi), PHC DA vs [ENTITY]