Delhi District Court
Da vs . Yogender Lal Sood Page 1 Of 20 on 13 November, 2013
IN THE COURT OF SHRI BALWANT RAI BANSAL
ADDITIONAL CHIEF METROPOLITAN MAGISTRATEII
PATIALA HOUSE COURTS, NEW DELHI
C.C. No. 233/02
Food Inspector
Department of PFA
Govt. of NCT of Delhi
A20, Lawrence Road
Indl. Area, Delhi - 35
........ Complainant
Versus
1. Sh. Yoginder Lal Sood S/o late Sh. Jaishi Ram Sood
Krishan Stores,
4, President Estate Market, New Delhi4
R/o 1375, President Estate,
New Delhi - 4
........ VendorcumProprietor
2. M/s Ram Nath & Sons (Summoned U/s 20 A of PFA vide
3971/2, Naya Bazar. Delhi order dated 21.08.2010)
COMPLAINT U/S 16 OF THE PREVENTION OF
FOOD ADULTERATION ACT, 1954
Serial number of the case : 233/02
Date of the commission of the offence : 10.12.2001
Date of filing of the complaint : 02.12.2002
CC No. 233/02
DA Vs. Yogender Lal Sood Page 1 of 20
Name of the Complainant, if any : Shri D.P. Singh, Food Inspector
Offence complained of or proved Violation of provisions of Section 2
(ia) (j) & (m) of PFA Act 1954 and
violation of provisions of Rule 23 r/w
Rule 28 & 29 of PFA Rules;
punishable U/s 16(1A) r/w section 7
of the PFA Act.
Plea of the accused : Pleaded not guilty
Final order : Acquitted
Arguments heard on : 12.11.2013
Judgment announced on : 13.11.2013
J U D G M E N T
1. The present complaint has been filed on 02.12.2002 by the Delhi Administration through FI Sh. D.P. Singh against the accused Yoginder Lal Sood. It is stated in the complaint that on 10.12.2001 at about 5.20 PM, FI Sh. Gian Chand purchased a sample of Arhar Dal, a food article for analysis from Yoginder Lal Sood S/o late Sh. Jaishi Ram Sood from the premises of M/s Krishan Stores, 4, President Estate Market, New Delhi, where the said food article was found stored for sale and where accused Yoginder Lal Sood was found conducting the business of the said food article at the time of sampling. FI Sh. Gian Chand purchased approximately 750 gms of Arhar Dal (ready for sale) taken from an open polythene bag bearing no label declaration. The sample was taken after proper mixing the Arhar Dal with the help of clean and dry jhaba by rotating it in all possible directions under the supervision and direction of Sh. Manoj Aggarwal , SDM/LHA. Thereafter, the CC No. 233/02 DA Vs. Yogender Lal Sood Page 2 of 20 sample commodity was divided into three equal parts by Food Inspector by putting it in three clean and dry bottles and each bottle containing the sample was separately packed, fastened and sealed according to the PFA Act and Rules. The signatures of vendor were obtained on the LHA slip and the wrapper of the bottles containing the sample. Notice was given to accused and price of sample was also give to him. Panchnama was also prepared at the spot. All these documents prepared by Food Inspector were signed by accused Yoginder Lal Sood and the other witness namely Sh. R.P. Singh, FI. It is stated that before starting the sample proceedings, efforts were made to get the public witnesses to join the proceedings, but none came forward and as such Sh. R.P. Singh, FI joined as witness.
2. It is further stated that one counterpart of the sample bearing LHA Code No. MA/LHA/001098 in intact condition was sent to the Public Analyst, Delhi and two counterparts of the sample in intact condition were deposited with LHA. The Public Analyst analysed the sample and opined that "The sample is adulterated because it is coloured with synthetic colouring matter viz. Tartrazine".
3. It is stated that during investigation, it was found that Sh. Yoginder Lal Sood S/o late Sh. Jaishi Ram Sood was the Vendorcum Proprietor of M/s Krishan Stores, 4, President Estate Market, New Delhi, at the time of sampling and as such he is incharge and responsible for day to day conduct of the business of the said shop. After conclusion of the investigation, the entire case file was sent to the Director, PFA who accorded the requisite CC No. 233/02 DA Vs. Yogender Lal Sood Page 3 of 20 consent U/s 20 of the Act and consequent thereto the present complaint was filed for violation of provisions of Section 2 (ia) (j) and (m) of the PFA Act, violation of Rule 23 r/w Rules 28 and 29 of the PFA Rules which is punishable U/s 16 (1A) of the PFA Act r/w Section 7 of the PFA Act.
4. The accused was summoned vide order dated 02.12.2002. The accused appeared and moved an application U/s 13 (2) of the PFA 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, Pune for analysis. Director, CFL on analysing the second counterpart of the sample in question opined vide his Certificate dated 07.02.2003 that "sample does not conform to the standards of Arhar Dal as per PFA Rules 1955 and it also contravenes Rule 44 AAA of the PFA Rules 1955".
5. The prosecution examined Food Inspector Sh. Gian Chand who conducted the sample proceedings as PW1, Sh. Manoj Aggarwal, the then SDM/LHA under whose supervision the sample proceedings were conducted as PW2 and FI D.P. Singh who filed the present complaint as PW3 towards precharge evidence and vide order dated 29.08.2005, precharge evidence was closed.
6. Charge for violation of sub clause (a) and (m) of Section 2 (ia) of the PFA Act and for violation of Rule 23 r/w Rule 28 and 29 of PFA Rules 1955; punishable U/s 16 (1A) r/w section 7 of the Act was framed against the accused Yoginder Lal Sood vide order dated 28.11.2005 to which accused CC No. 233/02 DA Vs. Yogender Lal Sood Page 4 of 20 pleaded not guilty and claimed trial.
7. Thereafter, in order to prove its case, in post charge evidence the prosecution examined four witnesses including Food Inspector Sh. Gian Chand as PW1, Sh. Manoj Aggarwal , the then SDM/LHA as PW2, FI D.P. Singh as PW4 and FI Sh. R.P. Singh who was made a witness in the sample proceedings as PW4 and PE was closed vide order dated 23.01.2009.
8. Statement of accused Yoginder Lal Sood U/s 313 Cr.P.C. was recorded on 17.04.2009 wherein he claimed himself to be innocent and opted to lead evidence in his defence.
9. Accused in his defence examined one Sh. Vinay Jain as DW1, examined himself as DW2 and also examined one Sh. Naresh Mittal as DW3 and DE was closed vide order dated 17.05.2010, DE was closed.
10. It is pertinent here to mention that on an application U/s 20 A of the PFA Act moved by accused Yoginder Lal Sood, the Ld. Predecessor of this court vide order dated 21.08.2010 summoned the accused M/s Ram Nath & Sons, which has been impleaded as accused no. 2 in the present case.
11. Prosecution examined FI Gian Chan who conducted the sample proceedings towards precharge evidence qua accused no. 2 and vide order dated 29.03.2011, precharge evidence qua accused no. 2 was closed.
12. Charge for violation of sub clause (a), (j) and (m) of Section 2 (ia) of the PFA Act and for violation of Rule 23 r/w Rule 28 and 29 of PFA Rules 1955; punishable U/s 16 (1A) r/w section 7 of the Act was framed against the accused no. 2 M/s Ram Nath & Sons vide order dated 28.012013 to CC No. 233/02 DA Vs. Yogender Lal Sood Page 5 of 20 which accused no. 2 pleaded not guilty and claimed trial.
13. Thereafter, in view of submissions of the Ld. Counsel for accused no. 2 that he does not want to crossexamine any of the prosecution witnesses after framing of charge, statement of accused no. 2 U/s 313 Cr.P.C. was recorded through its AR Sh. Mahavir Prasad on 23.04.2013 wherein it claimed itself to be innocent and opted to lead evidence in its defence. However, no evidence was led by accused no. 2 and DE qua accused no. 2 was closed vide order dated 21.08.2013.
14. I have heard the Ld. Counsel for the parties and perused the record carefully.
15. Ld. Counsel for accused no. 1 has vehemently argued that accused no. 1 had purchased the sample commodity from accused no. 2 M/s Ram Nath & Sons vide Bill Mark DA and sold the sample commodity in the same condition as purchased by him from accused no. 2 and, therefore, accused no. 1 is entitled to the benefit of warranty U/s 19 (2) of PFA Act against accused no. 2. He further argued that even otherwise sample lifted by the Food Inspector was not representative one which is evident from the variations in the report of Public Analyst and Director, CFL, benefit of which is liable to be given to the accused.
16. On the contrary, Ld. Counsel for accused no. 2 denied that the sample commodity was supplied by accused no. 2 to accused no. 1. He argued that the bill produced by the accused no. 1 does not connect the accused no. 2 with the sample commodity and even there is no evidence to prove that sample CC No. 233/02 DA Vs. Yogender Lal Sood Page 6 of 20 commodity was purchased by accused no. 1 from accused no. 2 and, therefore, accused no. 2 is liable to be acquitted. It is further argued by Ld. Counsel for accused no. 2 that even otherwise a representative sample was not lifted by the Food Inspector which is manifest from the variations in the report of Public Analyst and Director, CFL.
17. The Ld. SPP for complainant, on the other hand, argued that accused no. 1 had not shown any bill of purchase of the sample commodity at the time of sample proceedings and he produced the Bill Mark DA later on, which could not be duly proved by the accused no. 1 and accused no. 1 has not been able to prove that he had purchased the sample commodity from accused no. 2 and, therefore, no warranty U/s 19 (2) of PFA Act can be granted to the accused no. 1. He further argued that as per report of Director, CFL, the sample does not conform to the standards of Dal Arhar as per PFA Rules and the report of Director, CFL being conclusive, supersedes the report of Public Analyst, and, therefore, accused cannot be given benefit on account of variations in report of two experts.
18. All the witnesses examined by the prosecution have deposed as per the averments made in the complaint.
19. PW1 FI Sh. Gian Chand who conducted the sample proceedings in the present case deposed in his examinationinchief that on 10.12.2001, he along with FI R.P. Singh and other officials of the PFA department under the supervision and directions of SDM/LHA Sh. Manoj Aggarwal, visited the premises of M/s Krishan Store, 4, President Estate CC No. 233/02 DA Vs. Yogender Lal Sood Page 7 of 20 Market, New Delhi, where accused Yoginder Lal Sood was found conducting the business of said store. He further deposed that he disclosed his identity and intention to purchase sample of Dal Arhar which was lying in an open polythene bag bearing no label declaration and thereafter he purchased 750 gms of Dal Arhar on payment of Rs. 18/vide vendor receipt Ex. PW1/A after properly mixing the same with the help of a clean and dry jhaba lying in the bag by rotating it in all possible directions. He further deposed that thereafter the sample was divided into three equal parts by putting them into three clean and dry glass bottles and each sample bottle was separately packed, fastened and sealed according to PFA Act and Rules. He further deposed that he prepared Panchnama Ex. PW1/B and Notice in From VI Ex. PW1/C at the spot and and a copy of notice was also given to the accused and all the aforesaid documents were read over and explained to the accused who after understanding the same signed the same. He also deposed that accused also showed cash memo Ex. PW1/D. PW1 further deposed that on 11.12.2001, one counterpart of the sample in intact condition was deposited with the PA vide receipt Ex. PW1/E and remaining two counterparts were deposited in the office of LHA on the same day vide receipt Ex. PW1/F. He further deposed that report of PA was received and matter was investigated and after completion of investigation by him, he submitted the the complete case file to the Director (PFA) for further necessary action and after institution of the case, intimation letter was sent to the accused. During his deposition, PW1 has also placed on record report of Public Analyst as Ex. PW1/G, letter sent by him during CC No. 233/02 DA Vs. Yogender Lal Sood Page 8 of 20 investigation to STO, Ward No. 99 as Ex. PW1/H, copy of intimation letter sent to the accused along with PA report as Ex. PW1/I and photocopy of postal receipt as Ex. PW1/J.
20. PW2 Sh. Manoj Aggarwal, the then SDM/LHA under whose direction sample proceedings were conducted has corroborated the testimony of PW1 in his examinationinchief and has placed on record consent given by him for initiating the prosecution against the accused as Ex. PW2/A and complaint filed by FI D.P. Singh as Ex. PW2/B.
21. PW3 FI D. P. Singh stated in his examinationinchief that he received the case in the month of November, 2002 and the entire case file along with all statutory documents was sent to then Director, PFA who gave consent for prosecution of accused vide Ex. PW2/A and thereafter he filed the complaint Ex. PW2/B and after filing of the complaint intimation letter Ex. PW1/I along with PA report was sent to the accused through registered post vide postal receipt Ex. PW1/J.
22. PW4 FI Sh. R.P. Singh, who had accompanied the raiding party and was made a witness in the sample proceedings has deposed more or less on the similar lines as deposed by PW1 and PW2 in their examination inchief regarding the sample proceedings.
23. The accused no. 1 in his statement recorded U/s 313 Cr.P.C. has not disputed the fact that on 10.12.2001, he was found conducting the business of food articles including Arhar Dal at his shop at M/s Krishan Stores, 4, President Estate Market, New Delhi 4, when PFA Team including FI Gian CC No. 233/02 DA Vs. Yogender Lal Sood Page 9 of 20 Chand and FI Sh. R.P. Singh under the supervision and direction of SDM/LHA Sh. Manoj Aggarwal visited his shop and a sample of Arhar Dal was lifted by the FI Gian Chand which on being analyzed by the Public Analyst and Director, CFL was found to be adulterated as synthetic colour 'Tartrazine' was detected. However, it was contended by the accused that he is innocent and is a small retailer and has purchased the dal arhar from M/s Ram Nath & Sons, 3971/2, Naya Bazar, Delhi vide bill no. 124 dated 20.09.2001, while in his custody he did not tamper with the contents of the Dal Arhar.
24. Accused no. 2 in its statement U/s 313 Cr.P.C. recorded through its AR, though feigned ignorance regarding the sample proceeding, but it was contended that there is a lot of difference between the report of PA and Director, CFL and therefore due to divergent reports, they cannot be believed. It was also contended that accused no. 1 did not produce any bill or any document pertaining to the payment till he entered in his defence and had he got a proper bill, he should have produced it at the time of the sampling or at least he should have confronted it to the witnesses at the time of their statements. It was further contended that the bill produced by accused no. 1 only shows that certain products were supplied to him through the said bill, but it does not prove that the sample commodity was the same which was supplied though the bill Mark DA , since the sample was given from the loose container and the bill pertains to the supply of sealed bags of Dal.
25. The present case has been launched initially against the accused no. 1 on the basis of report of Public Analyst, which has been proved CC No. 233/02 DA Vs. Yogender Lal Sood Page 10 of 20 on record as Ex. PW1/G. The Public Analyst vide its report Ex. PW1/G found the sample of Arhar Dal lifted from the accused no. 1 adulterated as synthetic colour 'Tartarzine' was detected which is not permissible in pulses under PFA Act and Rules. The accused no. 1 on appearing exercised his right u/s 13 (2) of the PFA Act and accordingly second counterpart of the sample selected by the accused was sent to the Central Food Laboratory (CFL), Pune, and the Director, CFL vide his certificate dated 07.02.2003 also found the sample not conforming to the standards of Arhar Dal as per PFA Rules on account of detection of nonpermitted synthetic colour 'Tartrazine' in the sample.
26. The accused no. 1 has taken a defence in his statement U/s 313 Cr.P.C. that he is entitled for benefit of warranty U/s 19 (2) of PFA Act as he had purchased the sample commodity from M/s Ram Nath & Sons and stored the sample commodity in the same condition and did not tamper it and sold the sample commodity in the same condition in which it was purchased. On an application moved by accused no. 1 U/s 20 A of PFA Act, the aforesaid firm M/s Ram Nath & Sons was also summoned by this court, which has been impleaded as accused no. 2 in the present case. Though, the accused no. 1 has sought protection U/s 19 (2) of PFA Act against the accused no. 2, but the accused no. 2 has denied that it has supplied or sold the sample commodity to accused no. 1. As per accused no. 2, it has no concern with the sample commodity. Therefore, onus was upon the accused no. 1 to prove that he is entitled to benefit of warranty U/s 19 (2) of PFA Act against the accused no. 2.
CC No. 233/02 DA Vs. Yogender Lal Sood Page 11 of 2027. Section 19 (2) of PFA Act reads as under: "A Vendor shall not be deemed to have committed an offence pertaining to the sale of any adulterated or misbranded article of food if he proves
(a) that he purchased the article of food
(i) in a case where a licence is prescribed for the sale thereof, from a duly licensed manufacturer, distributor or dealer,
(ii) in any other case, from any manufacturer, distributor or dealer, with a written warranty in the prescribe form; and
(b) that the article of food while in his possession was properly stored and that he sold it in the same state as he purchased it."
28. In order to avail the benefit of warranty /protection U/s 19 (2) of PFA Act against the accused no. 2, the accused no. 1 was not only required to prove that he had purchased the sample commodity from accused no. 2 M/s Ram Nath & Sons under a written warranty, but was also required to prove that he stored the sample commodity properly in his possession and sold the sample commodity in the same state/condition in which he purchased from accused no. 2.
29. Though, accused no. 1 has claimed that he disclosed the source of purchase of Dal in question and also showed bill of purchase at the time of sample proceedings and in this regard suggestions were also put to PWs that accused showed bill No. 12400 dated 20th September from M/s Ram Nath & Sons of Naya Bazar, Delhi or informed that he purchased the Dal from Ram Nath & Sons, 3971/2, Naya Bazar, Delhi vide Bill No. 12400 or informed that he supplied the Dal in the same condition in which same was purchased, which were denied by the PWs. But, it is evident from Notice in Form VI Ex. PW1/B prepared at the spot that the accused did not produce any Bill of purchase of sample commodity at CC No. 233/02 DA Vs. Yogender Lal Sood Page 12 of 20 the time of sample proceedings as also contended by the accused no. 2 in its statement U/s 313 Cr.P.C. The accused had produced the bill/cash memo during his evidence and same has been placed on record as Mark DA on the basis of which accused is claiming benefit of warranty U/s 19 (2) of PFA against accused no. 2. Even though, the accused had not produced the Bill of Purchase Mark DA at the time of sample proceedings and produced the same at later stage, still the accused cannot be deprived from warranty available U/s 19 (2) of PFA Act, provided that the accused has been able to prove the Bill of Purchase in view of law laid down by the Hon'ble Gauhati High Court in Niranjan Kumar Agarwala Vs. The State of Assam 2012 (1) FAC 457 whereby it was held that, "There is no law in criminal trial, that the defence is bound to disclose its supporting documentary evidence before hand i.e. before the trial commences. The accused is called upon for entering into his defence only after conclusion of recording evidence of prosecution witness and examination U/s 313 Cr.P.C."
30. As such, accused no. 1 was not required to show the bill of purchase Mark DA at the time of sample proceedings in view of law laid down in the aforesaid authority and he can produce the same during his evidence, which the accused no. 1 has done in the present case. Now, it has to be seen as to whether the accused no. 1 has been able to prove the bill Mark DA.
31. In order to prove his claim of benefit of warranty U/s 19 (2) of PFA Act, the accused no. 1 has examined one Sh. Vinay Jain as DW1 who is the working partner of M/s Ram Nath & Sons from whom the accused no. 1 has CC No. 233/02 DA Vs. Yogender Lal Sood Page 13 of 20 claimed to have purchased the sample commodity. DW1 stated in his examinationinchief that he has not brought the summoned record i.e. copy of bill no. 124000 dated 20.09.2001 issued in favour of M/s Krishna Traders, Rastrapati Bhawan, New Delhi being old record and not available in their firm. He further stated that the bill Mark DA has not been issued by their firm.
32. This witness was allowed to be crossexamined by the Ld. Defence Counsel and in his crossexamination DW1 stated that now it is not possible for him to trace out the account books pertaining to the year 2001 and nothing material could be extracted from his crossexamination.
33. Accused no. 1 has also examined himself as DW2 and stated in his examinationinchief that he was running a retail shop in the name and style of M/s Krishna Store, 4, President Estate Market, New Delhi04, and the sample of Dal Arhar which was taken from his shop on 10.12.2001 was purchased by him from M/s Ram Nath & Sons, 3971/2, Naya Bazar, Delhi vide Bill Mark DA which is of dated 20.08.2001 amounting to Rs. 9741.39/. He further stated that he also informed the Food Inspector in respect of source of purchase but he declined to accept the same. He further stated that he use to maintain regular books of account and has placed on record the photocopy of the account register as Ex. DW2/A showing relevant entry at portion A in respect of purchase of Dal Arhar and payment made in respect of Bill Mark DA.
34. In his crossexamination, DW2 admitted that Bill Mark DA does not bear signatures of seller/purchaser against relevant column, but there is CC No. 233/02 DA Vs. Yogender Lal Sood Page 14 of 20 some signatures at point C which is not legible and he cannot say who signed it because goods were delivered at his shop. However, in the same breath, the accused contradicted his own statement when he stated that his employee Gopal brought the Dal Arhar from the market. He also admitted that in the register Ex. DW2/A, it is not mentioned from whom Dal Arhar was purchased or who brought the same. He stated that he had not shown the Bill Mark DA to the Food Inspector as he did not ask for it. Again, this statement of the accused is in contradiction to the suggestions put to PW1 where he was suggested that accused showed him the bill no. 12400 dated 20th September from M/s Ram Nath & Sons of Naya Bazar, Delhi. It shows that accused no. 1 is blowing hot and cold and is taking contradictory stands. He also stated in his cross examination that Bill Mark DA was available with him on the day of sampling. If it was so, then it is not understandable that why the accused did not make it available to the Food Inspector at the time of sampling. The plea of the accused that he showed bill of purchase to the Food Inspector but he refused to accept it, is not acceptable in view of contradictory stand taken by the accused as discussed herein above.
35. Another witness examined by accused no. 1 is DW3 Naresh Mittal, who is broker of pulses and rice and through whom the accused no. 1 has claimed to have purchased the Dal in question from accused no. 2. DW3 in his examinationinchief stated that he used to purchase pulses from Ram Nath & Sons, 3971/2, Naya Bazar, Delhi and the food articles through Bill Mark DA was not sold through him as it does not bear his signatures. He admitted that his CC No. 233/02 DA Vs. Yogender Lal Sood Page 15 of 20 name as Naresh is mentioned on the Bill but sample commodity was not purchased through Bill Mark DA.
36. This witness was also allowed to be crossexamined by the Ld. Defence Counsel on the ground that witness was not disclosing true facts. In his crossexamination, DW3 stated that they used to do business on behalf of Krishna Stores but the business was done through signed bill not otherwise. In his crossexamination by the Ld. Prosecutor, he admitted that as Bill Mark DA does not bear his signatures, it was not sold through him. He further stated that he does not know the accused present in the court and he never got supplied any pulses or other food articles to the accused. He further stated that he is not aware in respect of Bill Mark DA or in respect of quality of the same or who sold the food article to whom.
37. From the aforesaid evidence produced on record by the accused no. 1, it is evident that accused no. 1 has not been able to prove the purchase of sample commodity from accused no. 2 M/s Ram Nath & Sons vide Bill Mark DA. The bill Mark DA has not been proved as per law because DW1 who is the acting partner of M/s Ram Nath & Sons categorically stated in his examinationinchief itself that the bill Mark DA has not been issued by their firm. Similarly, DW3 who is broker through whom the accused has claimed to have purchased the sample commodity from accused no. 2 M/s M/s Ram Nath & Sons also admitted that though his name appears on the bill, but it does not bear his signatures and the business was done by him only through signed bill and not otherwise and since the bill Mark DA does not bear his signatures, the CC No. 233/02 DA Vs. Yogender Lal Sood Page 16 of 20 articles shown in the Bill were not sold through him. He even stated that he does not know the accused nor he ever got suppled any pulses or other food articles to the accused.
38. Though, the accused has produced on record the photocopy of account register Ex. DW2/A maintained by him during his course of business showing relevant entry in respect of purchase of Dal Arhar and payment made thereof, but in his crossexamination accused no. 1 admitted that in the register Ex. DW2/A, it is not mentioned from whom Dal Arhar was purchased. Even the bill Mark DA produced on record by the accused no. 1 through which he has claimed to have purchased the sample commodity from accused no. 2, does not bear the year in which it was issued.
39. As such, accused no. 1 has utterly failed to prove the first requirement as envisaged U/s 19 (2) of PFA Act that he purchased the sample commodity under a written warranty in the form of Bill Mark DA from accused no. 2 and hence cannot be said to be entitled for benefit of warranty U/s 19 (2) of PFA Act as claimed by him. Accordingly, this claim of accused no. 1 is rejected.
40. Since, accused no. 1 has failed to prove the purchase of sample commodity from accused no. 2 M/s Ram Nath & Sons vide Bill Mark DA, no case is made out against the accused no. 2. Hence, accused no. 2 stands acquitted of the charges leveled against it.
41. Now, coming to the contention of the accused no. 1 that a representative sample was not lifted by the Food Inspector in the present case.
CC No. 233/02 DA Vs. Yogender Lal Sood Page 17 of 2042. Though, in the present case both the Public Analyst as well as Director, CFL failed the sample of Dal Arhar lifted from accused no. 1 on account of detection of synthetic colour viz. 'Tartrazine', but a perusal of reports of both the Analysts shows that there are variations in both the reports in respect of different parameters of the sample commodity. As per report of Public Analyst (PA) Ex. PW1/G, the moisture determined by heating the pulverized grains at 130133 deg. C was found to the tune of 8.21%, while Director, Central Food Laboratory found the same to the tune of 9.6%. Similarly, Public Analyst vide its report Ex. PW1/G did not find 'Weevilled grain' in the sample commodity, whereas Director, CFL found the 'Weevilled grain' in the sample to the extent of 1.0%, which is in contradiction to the report of Public Analyst who nowhere found 'Weeviled grain' in the sample. Likewise, 'Grain damaged by fungus, moisture or heating internally' was found to the extent of 0.23% as per report of Public Analyst, while the Director, CFL found the 'Damaged grain' to the extent of 0.12%. Further, Public Analyst did not find the 'Uric acid content' in the sample, but the Director, CFL found the 'Uric acid' to the extent of 33.33 PPM, which is again in contradiction to the report of Public Analyst.
43. The aforesaid variations in the report of both the Analysts shows that the sample was not properly mixed up and hence it cannot be said to be representative sample. In State Vs. Rama Rattan Malhotra 2012 (2) FAC 398 after relying upon various judgments titled as Kanshi Nath Vs. State CC No. 233/02 DA Vs. Yogender Lal Sood Page 18 of 20 2005(2) FAC 219 and State Vs. Mahender Kumar & Ors, 2008 (1) FAC 177, the Hon'ble High Court of Delhi has held that, "Since in the present case, variation in public analyst and CFL certificates is more than .3%, it would clearly imply that samples in the present case were not representative.". In Kanshi Nath Vs. State (Supra) 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, the Hon'ble Delhi High Court 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 State Vs. Mahender Kumar & Ors. (Supra) has been observed that, " While both reports have concurred in the conclusion that the sample was adulterated, the variation in the material parameters in the sample sent to each of them is not insignificant. In the sample sent to the Public Analyst the ash content is 4.04% whereas in the sample sent to the CFTRI it is 6%. The ash insoluble in dilute HCL is 2.55% in the sample sent to the Public Analyst whereas it is 1.95% in the sample sent to the CFTRI. The lead content is Nil in the first and 5.4 ppm in the second. These variations are more than y.3% which is stated to be the permissible limit. It cannot therefore be said that identical CC No. 233/02 DA Vs. Yogender Lal Sood Page 19 of 20 representatives samples were sent to both the Public Analyst as well as the CFTRI".
44. Similarly, It has been held by the Hon'ble Delhi High Court in M/s Raja Ram Seth & Sons & Anr. Vs. Delhi Administration 2012 (2) FAC 523 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 homogenized and no conviction is permissible on the basis of said reports and benefit of doubt is liable to be given to the accused." Similar view has been taken by the Hon'ble High Court of Delhi in State (Delhi Administration) Vs. Ram Singh & Ors. 2009 (1) FAC 371. Reliance may also be placed upon State Vs. Suresh Kumar & Anr. 2010 (2) FAC 204.
45. In view of law laid down in the aforesaid authorities, since there are variations in the report of Public Analyst (PA) and Director, Central Food Laboratory, which are beyond the permissible limit of .3 %, it appears that sample was not representative one and therefore, benefit of doubt is liable to be given to the accused. Accordingly, benefit of doubt is given to the accused no. 1 and he is also acquitted of the charges leveled against him.
File be consigned to Record Room.
Announced in the open Court (Balwant Rai Bansal)
on 13th November, 2013 ACMMII/ PHC/ New Delhi
CC No. 233/02
DA Vs. Yogender Lal Sood Page 20 of 20
CC No. 233/02
DA Vs. Yoginder Lal Sood
13.11.2013
Present: Sh. Masood Ahmad, Ld. SPP for complainant.
Accused no. 1 with counsel Sh. M.K. Gupta.
AR of accused no. 2 with counsel Sh. M.C. Sanghi.
Vide my separate Judgment of even date dictated and announced in the open court, both the accused stand acquitted of the charges leveled against them. Previous Bail Bond / Surety Bond stands cancelled. Surety stands discharged. Endorsement on the documents of the previous surety, if any, be cancelled.
Accused no. 1 is directed to furnish fresh bail bonds in compliance of Section 437A Cr.P.C. He has furnished the B/B & S/B in the sum of Rs. 15,000/ each. Same is accepted.
File be consigned to Record Room.
(Balwant Rai Bansal) ACMMII/PHC/ND/13.11.2013 CC No. 233/02 DA Vs. Yogender Lal Sood Page 21 of 20