Delhi District Court
Fi vs . Ved Prakash Etc. Page 1 Of 16 on 20 June, 2013
IN THE COURT OF SHRI BALWANT RAI BANSAL
ADDITIONAL CHIEF METROPOLITAN MAGISTRATEII,
PATIALA HOUSE COURTS, NEW DELHI
C.C. No. 121/98
Local Health Authority
Department of PFA
Govt. of Delhi.
...........................Complainant
Versus
1. Shri Ved Prakash
S/o Shri Ram Dhan,
M/s Garg Provision Store,
21, Sector 12, R.K. Puram,
New Delhi.
.........................VendorcumPartner
2. Shri Suresh Kumar Agarwal
M/s Garg Provision Stores
...............................................Partner
3. M/s Garg Provision Store,
21, Sector 12, R.K. Puram, New Delhi.
..................................................Firm
CC No. 121/98
FI Vs. Ved Prakash Etc. Page 1 of 16
COMPLAINT U/S 16 OF THE PREVENTION OF FOOD
ADULTERATION ACT, 1954
Serial number of the case : 121/98
Date of the commission of the offence : 17.08.1998
Date of filing of the complaint : 09.09.1998
Name of the Complainant, if any : Shri S.K. Nanda, LHA.
Offence complained of or proved : Violation of Section 2 (ia) (a)(b)
(c)(f)(h) &(l) of PFA Act 1954,
punishable U/s 16 (1) (1A) r/w S.
7 of PFA Act 1954.
Plea of the accused : Pleaded not guilty
Final order : Acquitted.
Arguments heard on : 24.05.2013
Judgment announced on : 20.06.2013
J U D G M E N T
1. The present complaint has been filed on 09.09.1998 by LHA Sh. S.K. Nanda against the aforesaid accused persons. It is stated in the complaint that on 17.08.1998 at about 6:00 PM, FI Sh. Suniti Kumar Gupta purchased a sample of Mustard Oil, a food article for analysis from accused Ved Prakash, S/o Shri Ram Dhan, VendorcumPartner of M/s Garg Provision Store, 21 Sector 12, R.K. Puram, New Delhi, where the said CC No. 121/98 FI Vs. Ved Prakash Etc. Page 2 of 16 food article was found stored for sale for human consumption, lying in an open tin, bearing no label or declaration. It is further stated in the complaint that FI Sh. Suniti Kumar Gupta purchased 375 gms of Mustard Oil (ready for sale for human consumption) from the said tin. The sample was taken after proper homogenization with the help of clean and dry measure, under the supervision and direction of Shri S.K. Nanda, LHA. Thereafter, the sample was divided into three equal parts by putting it in three clean and dry bottles and thereafter each bottle containing the sample was separately packed, fastened and sealed according to the PFA Act and Rules. The signatures of vendor Ved Prakash were obtained on the LHA slip and the wrapper of the bottles containing the sample. Notice in Form VI was given to accused and price of sample was also paid to the accused. Panchnama was also prepared at the spot. All these documents prepared by FI Sh. Suniti Kumar Gupta were signed by accused / vendor Ved Prakash and the other witness namely Sh. Rajesh Kumar, FI. It is stated that before taking the sample, efforts were made to get the public witnesses to join the sample proceedings.
2. It is further stated that one counterpart of the sample in intact condition was sent to the Public Analyst, Delhi and two counterparts of the sample in intact conditions were deposited with LHA. The Public Analyst CC No. 121/98 FI Vs. Ved Prakash Etc. Page 3 of 16 analysed the sample and opined that "the sample does not conform to the standards laid down under item no. A.17.06 of appendix 'B' of PFA Rules, 1955, because sample shows presence of Argemone Oil".
3. It is further stated in the complaint that during investigations the firm M/s Garg Provision Store was found a partnership firm and accused Ved Prakash and accused Suresh Kumar Agarwal were the partners of the firm and both were incharge and responsible for the day to day conduct of the business of said firm. Thereafter, the entire case file was sent to the Director, PFA who accorded the requisite consent U/s 20 of the Act and consequent thereto the present complaint was filed for violation of provisions of Section 2 (ia) (a) (b)(c)(f)(h) & (I) of the PFA Act, 1954, provision of Section 2(ix) (k) of PFA Act and Rule 32 of PFA Rules 1955; punishable U/s 16 (1) (1A) r/w S. 7 of the Act.
4. The accused were summoned vide order dated 10.09.1998. On appearing, accused no. 1 moved an application U/s 13 (2) of the Act to get analyzed the second counterpart of the sample from Central Food Laboratory (CFL). The said application was allowed and consequently second counterpart of the sample was sent to CFL, Calcutta for analysis. The Director, CFL on analysing the second counterpart of the sample in question opined vide his Certificate dated 05.11.1998 that "the sample of CC No. 121/98 FI Vs. Ved Prakash Etc. Page 4 of 16 Mustard Oil is adulterated".
5. Thereafter, in pre charge evidence two witnesses namely Shri S.K. Nanda, the then LHA as PW1 and Shri Suniti Kumar Gupta, Food Inspector as PW2 were examined and pre charge evidence was closed vide order dated 10.11.2008.
6. Thereafter, Charges for the violation of provisions of Section provisions of Section 2 (ia) (b)(c)(f)(h) & (I) of the PFA Act, 1954, punishable U/s 16 (1) (1A) r/w S. 7 of the Act were framed against the accused persons vide order dated 28.01.2009 to which they pleaded not guilty and claimed trial.
7. In post charge prosecution evidence, the prosecution again got examined two witnesses Shri S.K. Nanda, the then LHA as PW1 and Shri Suniti Kumar Gupta, Food Inspector as PW2 and the PE was closed vide order dated 08.07.2009.
8. Statement of accused persons U/s 313 Cr.P.C. were recorded on 22.02.2010 wherein all of them claimed themselves to be innocent and opted to lead evidence in their defence.
9. In defence accused no. 2 got examined himself as DW1 and DE was closed vide order dated 01.09.2011.
10. I have heard the Ld. Counsel for the parties and perused the CC No. 121/98 FI Vs. Ved Prakash Etc. Page 5 of 16 record carefully.
11. The Ld. Counsel for the accused persons has argued that accused no. 2 could not have been prosecuted because he was not the partner of accused no. 3 firm at the time of lifting the sample as he had already retired from the partnership firm and therefore, he is liable to be acquitted. The Ld. Counsel has further argued that the accused persons have been prosecuted as in the sample commodity the PA & Director CFL found the presence of Argemone Oil but without quantifying the percentage it can not be said that the mustard oil was injurious to health. He has further argued that there is nothing in the report of PA & Director CFL that the mustard oil was injurious to health. He has further argued that as per Modi's literature, 1% of Argemone Oil is necessary for causing the dropsy but in the present case no such finding has been given in either of the reports and unless the percentage of Argemone is disclosed it can not be satisfactorily concluded that Argemone oil was present to such an extent that it could have caused some epidemic dropsy. He further argued that there are variations in the reports of PA & CFL, which shows that the sample was not homogenized properly before lifting by the FI and therefore, benefit of doubt is liable to be given to the accused persons. In support of its case, he has placed reliance various case law titled as Khushi Ram Vs. The State & Anr. CC No. 121/98 FI Vs. Ved Prakash Etc. Page 6 of 16 Crl. Rev. No. 252 of 1978, Kanshi Nath Vs. State 2005(2) FAC 219 and M/s Raja Ram Seth & Sons & Anr. Vs. Delhi Administration, 2012 (2) FAC 52.
12. On the contrary Ld. SPP for complainant has argued that accused no. 2 was the partner of accused no. 3 firm and therefore he has rightly been prosecuted as he was also responsible for conducting of the business of the partnership firm. He has further argued that the Director CFL has found the sample to be adulterated because of presence of Argemone Oil and the report of Director, CFL being conclusive and supersedes the report of Public Analyst, therefore the accused persons can not be given the benefit thereof and they are liable to be convicted.
13. Both the witnesses examined by the prosecution have deposed more or less as per the averments made in the complaint and substantiated the averments.
14. PW1 Sh. S.K. Nanda, LHA who is the complainant in the present case has deposed in his examinationinchief that on 17.08.1998, under his supervision and directions FI Shri Suniti Kumar Gupta and FI Shri Rajesh kumar visited the premises of M/s Garg Provision Store, 21, Sector 12, R.K. Puram, New Delhi, where accused Ved Prakash was found present and conducting the business of the said shop having stored various CC No. 121/98 FI Vs. Ved Prakash Etc. Page 7 of 16 food articles including Mustard Oil for sale for human consumption. He has further deposed that FI Shri Suniti Kumar Gupta purchased 375 gms of Mustard Oil, taken from an open tin, having no label declaration, on payment of Rs. 21/ vide vendor's receipt Ex. PW1/A. He has further deposed that sample was taken after proper homogenization the Mustard Oil with the help of a measure by rotating it in all possible directions several times and then FI divided the same into three equal parts by putting them in three clean and dry glass bottles. He further deposed that notice was prepared at the spot and the same was given to accused Ved Prakash which is Ex. PW1/B and panchnama was also prepared which is Ex. PW1/C. He further deposed that all the documents Ex. PW1/A to Ex. PW1/C prepared on the spot were read over and explained to the accused/vendor Ved Prakash who after understanding the same signed these documents. He has further deposed that two counterparts of the sample in a sealed packet were deposited in intact condition with him on 18.08.1998 vide receipt Ex. PW 1/D, under intimation that one counterpart of the sample has already been deposited in intact condition with PA vide PA receipt Ex. PW 1/E and PA's report is Ex. PW 1/F according to which the sample did not conform to the standards because sample showed presence of Argemone Oil. He has further deposed that after conducting CC No. 121/98 FI Vs. Ved Prakash Etc. Page 8 of 16 investigation, the Director PFA gave his consent vide Ex. PW 1/G and besides the PA's opinion, also pointed out at portion A of Ex. PW 1/G that "It is injurious to health and also likely to cause death.". He has proved the compliant Ex. PW 1/H, intimation letter Ex. PW 1/J and Sale Tax's reply Ex. PW 1/L.
15. PW2 has also deposed on the same lines as deposed by PW1 in his examinationinchief.
16. First of all I shall deal with the contention of the Ld. counsel for accused persons that accused no. 2 is not liable for the alleged offence because he was not the partner of accused no. 3 firm at the time of lifting the sample. In the statement under section 313 Cr. P.C., accused no. 2 has stated that accused no. 3 was a partnership firm but the same was dissolved w.e.f 31.03.1998 and he was also not present at the time of taking the sample and was not responsible and incharge to conduct the business of the partnership firm.
17. As per the case of the prosecution, accused no. 1 disclosed himself to be the proprietor of M/s Garg Provision Store but on investigation, it was found that M/s Garg Provision Store was a partnership firm, having two partners namely Ved Prakash and Suresh Kumar Aggarwal and both the partners were active partners and were incharge and CC No. 121/98 FI Vs. Ved Prakash Etc. Page 9 of 16 responsible for conducting day to day business of the said firm. PW2 FI Suniti Kumar Gupta has categorically deposed the aforesaid averments in his evidence that accused Suresh Kumar Aggarwal was the working partner alongwith the accused Ved Prakash (vendor). There is nothing in the cross examination of PW2.
18. PW2 has admitted in his crossexamination that at the time of sampling the other partner Suresh Kumar was not present. He has also admitted that there is no other document except the sales tax reply. He denied the suggestion that accused Suresh Kumar has wrongly been impleaded in this case. He has voluntarily deposed that accused Suresh Kumar was impleaded as accused in this case on the basis of findings of his investigation as a working partner as mentioned at portion B on Ex. PW 1/G. He has denied the suggestion that during investigation he was shown the dissolution deed by which the partnership was dissolved w.e.f 31.03.1998. As such it is apparent from the cross examination of PW2 that not a single suggestion has been given by Ld. counsel for accused persons that accused Suresh Kumar was not the working partner of accused no. 3 firm or that partnership had already been dissolved when the FI had lifted the sample from accused no. 1. This plea that accused no. 3 firm was dissolved, has been taken for the first time when accused no. 2 got CC No. 121/98 FI Vs. Ved Prakash Etc. Page 10 of 16 examined himself under section 315 Cr. P.C as DW1.
19. DW1 in his statement under section 315 Cr. P.C has deposed that before 31st March, 1998, he was a partner in firm M/s Garg Provision Store, Shop No. 21, Sector12, R.K. Puram, New Delhi but since he was living at Panipat, he never attended the business of the said firm. He has further deposed that he retired from the firm vide Dissolution Deed dated 31.03.1998 and after this date he had no connection with the business of the firm. He has also filed the photocopy of dissolution deed Ex. DW 1/E.
20. In his crossexamination, he has admitted that the Dissolution Deed filed by him today is not registered with the Registrar of the firm or with any other Government Agency. He has further stated that he has not given any information to any Govt. Agency including Sales Tax Department and LHA regarding dissolution of his partnership in M/s Garg Provision Store. He has further stated that upto 03.09.1998, he has been shown as a partner of M/s Garg Provision Store in Sales Tax Department. He has denied the suggestion that to save himself from the legal punishment, he prepared a forged dissolution deed. He has denied the suggestion that on the date of sampling, he continued as a partner and was responsible for day to day affairs of business of the firm.
21. In view of aforesaid evidence of PW2, it is evident that FI CC No. 121/98 FI Vs. Ved Prakash Etc. Page 11 of 16 Suniti Kumar Gupta has inquired from the Sales Tax Authority regarding the constitution of the firm M/s Garg Provision Store and as per Ex. PW 1/L the status of M/s Garg Provision Store has been shown to be a partnership firm showing two partners namely Shri Ved Parkash and Shri Suresh Kumar Aggarwal. This information has been provided by the STO vide letter Ex. PW 1/L, dated 03.09.1998. Though the accused no. 2 has taken a plea in his defence evidence for the first time that partnership was dissolved vide dissolution deed 31.03.1998 and photocopy of which is placed on record but the said deed has not been proved on record. There is nothing on record to show that the accused has intimated any government authority about the dissolution of the partnership firm as also admitted by DW1 in his crossexamination. Therefore, the accused no. 2 has not been able to prove that the firm was dissolved on 31.03.1998 and accused no. 2 was no more partner of accused no. 3 firm. Mere fact that accused no. 2 was not present at the time of taking the sample is not sufficient to absolve him from the liability. In view of the evidence on record and unchallenged testimony of PW2 that accused no 2 was working partner at the time of taking the sample, I found nothing in the contention of Ld. counsel for accused persons that accused no. 2 has been wrongly prosecuted and he was not the partner of accused no. 3 firm on the day of sample proceedings CC No. 121/98 FI Vs. Ved Prakash Etc. Page 12 of 16 hence, this contention is rejected.
22. Now coming to the facts of the present case, it is not in dispute that on 17.08.1998, the sample of Mustard Oil was lifted from the premises of accused no. 3 firm and the same on being analyzed by the PA was found not conforming to the standards because sample showed presence of Argemone Oil. It is also not in dispute that accused no. 1 got analyzed the second counterpart of the sample from CFL, Calcutta, who after analyzing the same also found the sample to be adulterated because of presence of Argemone Oil 'positive'. However, none of the analysts has given the percentage of Argemone Oil. As per Modi's Medical Jurisprudence and Toxicology, at least 1% of Argemone Oil as an adulterant is necessary to produce clinical epidemic dropsy. In the absence of any finding on its percentage, the possibility of argemone oil less than 1% in the sample commodity can not be ruled out. Therefore, it was necessary to give percentage of Argemone by PA & Director CFL to adjudge whether the argemone oil was to such an extent that it was injurious to health.
23. In Khushi Ram Vs. The State & Anr. Crl. Rev. No. 252 of 1978, a sample of Bari Elaichi was lifted from the shop of the accused / petitioner. The second counterpart of the sample on being got analyzed from the CFL, The Director CFL found the mineral oil 'positive'. But the CC No. 121/98 FI Vs. Ved Prakash Etc. Page 13 of 16 Director CFL nowhere mentioned the quantity, weight or proportion by way of percentage of the mineral oil in the sample of Bari Elaichi so that it could be presumed to be injurious to health, nor any evidence whatsoever was brought on record to show that its presence in the sample could affect injuriously the nature, substance or quality of the sample and, therefore, on these facts and circumstances, the revision petition was allowed and the petitioner / accused was acquitted.
24. The other fact that is very important to be mentioned that the presence of Argemone Oil should be absent / negative, this standard came in force w.e.f 11.12.2001 vide Notification of the Central Government. The sample in this case was taken on 17.08.1998 i.e. before this amendment came into force. Therefore, the percentage of Argemone Oil to determine whether the sample commodity was injurious to health was essential.
25. The next contention of the accused is regarding variations in both the reports of experts. In PA's Report, Iodine value is 108.48 whereas as per opinion of Director CFL, it is to the tune of 106.8. Further, the PA has adjudged Saponification value and Acid Value to the tune of 172.35 & 1.29 respectively whereas, the Director CFL adjudged the same to be 179.8 & 2.52 respectively. Likewise B.T.T is to the tune of 27.5 Deg. C as per the opinion of PA whereas, the Director CFL opined the same to be 30.0 CC No. 121/98 FI Vs. Ved Prakash Etc. Page 14 of 16 Deg. C. As such there are variations to some extent, which are more than the permissible limit of 0.3%, which is stated to be the permissible limit of variations. The contention of the Ld. defence counsel that the sample was not homogenized properly by the FI seems to be a reasonable one.
26. In Kanshi Nath Vs. State 2005(2) FAC 219 even while certain other contentions of the accused were rejected, the contention concerning the samples sent to the two test labs not being representative was accepted and the accused were acquitted. In this judgment after referring to the judgment of Calcutta Municipal Corporation Vs. Pawan Kumar Saraf 1999(1) FAC 1 and Municipal Corporation of Delhi Vs. Bishan Sarup 1972 FAC 273 has observed that, " Therefore, on the facts of the present case, It can be said that the variation is beyond the acceptable range and would clearly imply that the samples were not representative. In view of this finding and in the background of the law which is well settled, no conviction can be sustained". Similarly in M/s Raja Ram Seth & Sons & Anr. Vs. Delhi Administration, 2012 (2) FAC 523 it has been held that, "If the variations in the report of PA and CFL is more than 0.3 % which is stated to be permissible limit, it cannot be said that identical representative samples were sent to both the Public Analyst and CFL and therefore it raises a doubt about the sample of being not CC No. 121/98 FI Vs. Ved Prakash Etc. Page 15 of 16 homogenized and no conviction is permissible on the basis of said reports and benefit of doubt is liable to be given to the accused.".
27. In view of aforesaid discussion and observation, I am of the considered view that the prosecution has not been able to prove its case beyond reasonable doubt and therefore, the benefit of the same is liable to be given to the accused persons. Accordingly, all the accused are acquitted of the charges leveled against them. File be consigned to Record Room.
Announced in the open Court (Balwant Rai Bansal)
on 20th June, 2013 ACMMII/ PHC/ New Delhi
CC No. 121/98
FI Vs. Ved Prakash Etc. Page 16 of 16
CC No. 121/98
DA Vs. Ved Prakash Etc
20.06.2013
Present: Sh. Masood Ahmad, Ld. SPP for complainant.
Accused no. 1 and 2 are present with Counsel, Shri M.K. Gupta. Accused no. 1 is also representing accused no. 3.
Vide my separate Judgment of even date dictated and announced in the open court, all accused persons stand acquitted of the charges leveled against them. Their previous Bail Bond / Surety Bond stand cancelled. Sureties stand discharged. Endorsement on the documents of the previous sureties, if any, be cancelled.
Accused no. 1 & 2 are directed to furnish fresh bail bonds in compliance of Section 437A Cr.P.C. They have furnished B/B & S/B in the sum of Rs. 15,000/ each. The same are accepted.
File be consigned to Record Room.
(Balwant Rai Bansal) ACMMII/PHC/ND/20.06.2013 CC No. 121/98 FI Vs. Ved Prakash Etc. Page 17 of 16