Delhi District Court
Fi vs . Neeraj Singhal Page 1 Of 16 on 30 May, 2013
IN THE COURT OF SHRI BALWANT RAI BANSAL
ADDITIONAL CHIEF METROPOLITAN MAGISTRATEII,
PATIALA HOUSE COURTS, NEW DELHI
C.C. No. 189/04
Food Inspector
Department of PFA
Govt. of NCT of Delhi
A20, Lawrence Road
Indl. Area, Delhi - 35
........ Complainant
Versus
Sh. Neeraj Singhal S/o Sh. Ramesh Chand
Aggarwal Jain Sweet Corner
A Block Chowk, Shop No. 3.
Dilshad Garden, Delhi
........ VendorcumProprietor
COMPLAINT U/S 16 OF THE PREVENTION OF FOOD
ADULTERATION ACT, 1954
Serial number of the case : 189/04
Date of the commission of the offence : 29.03.2004
Date of filing of the complaint : 23.09.2004
Name of the Complainant, if any : Smt. Usha Kiran, Food Inspector
CC No. 189/04
FI Vs. Neeraj Singhal Page 1 of 16
Offence complained of or proved : For violation of Section 2 (ia) (a)
& (m) of PFA Act 1954;
punishable U/s 16(1) (a) r/w
Section 7 of PFA Act
Plea of the accused : Pleaded not guilty
Final order : Acquitted
Arguments heard on : 21.05.2013
Judgment announced on : 30.05.2013
J U D G M E N T
1. The present complaint has been filed on 23.09.2004 by the Delhi Administration through FI Smt. Usha Kiran against the accused Neeraj Singhal. It is stated in the complaint that on 29.03.2004 at about 5.15 PM, FI Smt. Usha Kiran purchased a sample of Paneer, a food article for analysis from Sh. Neeraj Singhal S/o Sh. Ramesh Chand from the premises of Aggarwal Jain Sweet Corner, A Block Chowk, Shop No. 3, Dilshad Garden, Delhi, where the said food article was found stored for sale and where accused Neeraj Singhal was found conducting the business of the said food article at the time of sampling. FI Smt. Usha Kiran purchased 750 gms. of Paneer (ready for sale), taken from a brick of about 1 Kg. The sample was taken under the supervision and direction of Shri Anil Banka, SDM/LHA after proper mixing by cutting the Paneer into possible smallest pieces with a clean and dry knife in a steel tray and mixed with the same CC No. 189/04 FI Vs. Neeraj Singhal Page 2 of 16 knife. Thereafter, the sample was divided into three equal parts by FI by putting it in three clean and dry bottles and 20 drops of formalin were added to each bottle with a dropper and thereafter 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 in Form VI was given to accused and price of sample was also given to the accused vide Vendor's Receipt dated 29.03.2004, but the accused did not accept the price stating that he used this Paneeer for making Paneer pakora etc. which he sells and that the Paneer was ready to use. Panchnama was also prepared at the spot. All these documents prepared by FI Smt. Usha Kiran were signed by accused Neeraj Singhal, the vendor and the other witness namely Sh. Manohar Lal, FA. It is stated that before taking the sample, efforts were made to get the public witnesses to join the proceedings, but none came forward and as such Sh. Manohar Lal, FA joined as witness.
2. It is further stated that one counterpart of the sample bearing LHA code No. 53/LHA/6092 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 analysed the sample and opined that "the sample does not conform to standards because milk fat content CC No. 189/04 FI Vs. Neeraj Singhal Page 3 of 16 of dried matter is less than the prescribed minimum limit of 50%".
3. It is further stated that Neeraj Singhal S/o Sh. Ramesh Chand was the VendorcumProprietor of Aggarwal Jain Sweet Corner at the time of sampling and as such he is the incharge of and responsible for the day to day conduct of the business of the said shop. 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 7 r/w section 2 ((ia) (a) & (m) of the PFA Act, 1954 which is punishable U/s 16 (1) (a) of the PFA Act 1954.
4. The accused was summoned vide order dated 23.09.2004. The accused appeared and 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, Pune for analysis. Director, CFL on analysing the second counterpart of the sample in question opined vide his Certificate dated 17.11.2005 that "sample does not conform to the standards of Chhana or Paneer as per PFA Rules 1955".
5. The prosecution examined Smt. Usha Kiran, FI who conducted the sample proceedings as PW1 towards precharge evidence and vide CC No. 189/04 FI Vs. Neeraj Singhal Page 4 of 16 order dated 18.08.2009, precharge evidence was closed.
6. Charge for violation of Section 2 (ia) (a) & (m) of the PFA Act, punishable U/s 16 (1) (a) of the Act r/w section 7 of the PFA Act was framed against the accused vide order dated 30.10.2009 to which accused pleaded not guilty and claimed trial.
7. Thereafter, in order to prove its case, in post charge evidence, the prosecution examined three witnesses including Food Inspector Smt. Usha Kiran as PW1, Sh. Anil Banka, the then SDM/LHA as PW2 and Sh. Manohar Lal, Field Assistant as PW3 and PE was closed vide order dated 27.04.2012.
8. Statement of accused U/s 313 Cr.P.C. was recorded on 05.07.2012 wherein accused claimed himself to be innocent, however he opted for not to lead evidence in his defence.
9. I have heard the Ld. Counsel for the parties and perused the record carefully.
10. Ld. Counsel for accused has argued that sample lifted by the complainant FI Smt. Usha Kiran was not representative one as it was not properly homogenized and the method of lifting the sample was not correct and, therefore, there is variations in the report of Public Analyst (PA) and Central Food Laboratory (CFL) for which benefit of doubt is liable to be CC No. 189/04 FI Vs. Neeraj Singhal Page 5 of 16 given to the accused. He further argued that there is huge delay in filing the complaint and the delay in filing the complaint has decomposed the sample commodity being of perishable nature with the passage of time. He contended that present complaint has been launched against the accused after 6 months from the date of lifting the sample and the accused could exercise his right U/s 13 (2) of PFA Act after more than six months and the Director, CFL analyzed the sample after about 1 ½ years from the date of lifting the sample and during this period the sample commodity might have decomposed being of milk product and thus the accused has been deprived from getting the correct analysis from the Director, CFL. He further argued that shelf life of the milk product is not more than 6 months and even by the time when present complaint was filed, the shelf life of the sample commodity has already expired and therefore, benefit of doubt is liable to be given to the accused. He has relied upon the case laws reported in State Vs. Ramesh Chand, 2010 2 JCC 1250, State Vs. Vinod Kumar Gupta, 2010 2, JCC 957, State Vs. Zabruddin Criminal Misc No. 2431/96 and State of Punjab Vs. Hotel Royal Place & Ors, 2011II FAC 265.
11. On the other hand, the Ld. SPP for complainant has argued that there is no delay in filing the complaint and complaint has been filed within limitation. He further argued that as per report of Director, CFL, the milk CC No. 189/04 FI Vs. Neeraj Singhal Page 6 of 16 fat content on dry weight basis of the sample was not as per the prescribed standards and the report of Director, CFL being conclusive and supersedes the report of Public Analyst, therefore the accused cannot be given benefit of variations in the reports of PA and CFL.
12. All the witnesses examined by the prosecution have deposed more or less as per the averments made in the complaint . PW1 Smt. Usha Kiran who is the complainant in the present case and conducted the sample proceedings has deposed in his examinationinchief that on 29.03.2004 she along with FA Manohar Lal under the supervision and direction of SDM/LHA Sh. Anil Banka visited the premises of M/s Aggarwal Jain Sweet Corner, A Block Chowk, Shop No. 3, Dilshad Garden, New Delhi, where accused was found conducting the business of said shop having stored various food articles including Paneer, for use in preparation of Paneer pakroa etc, for sale for human consumption. She further deposed that a brick of Paneer weighing about 1 Kg. was cut into smallest pieces with the help of clean and dry stainless steel knife in a clean and dry stainless steel tray and was mixed properly with the help of same knife and out of this, 750 gms of Paneer was taken as sale and an amount of Rs. 60/ was offered as sample price vide vendor's receipt Ex. PW1/A, but same was no accepted by the accused stating that Panner is not for sale as it is used in CC No. 189/04 FI Vs. Neeraj Singhal Page 7 of 16 preparation of Paneer Pakora, Samosa etc. She further deposed that so purchased sample was divided into three equal parts by putting it in three clean and dry glass bottles and 20 drops of formalin were added in each of the sample bottle with the help of clean and dry dropper and all the three sample bottles were separately packed, marked, fastened and sealed accordingly to PFA Act and Rules.
13. PW1 has further deposed that notice in Form VI was prepared at the spot and same was given to accused which is Ex. PW1/B and panchnama Ex. PW1/C and report under Rule 9 (e) Ex. PW1/C1 were also prepared at the spot and all the documents Ex. PW1/A to Ex. PW1/C prepared on the spot were read over and explained to the accused who after understanding the same signed the same. She has also deposed that one counter part of the sample along with one copy of memo in Form VII in intact & sealed condition was sent to the PA on 31.03.2004vide receipt Ex. PW1/D and remaining two counter parts of the sample in a sealed packet were deposited in intact condition with the LHA on 31.03.2004 vide receipt Ex. PW1/R.
14. PW1 has also proved on record the PA report as Ex. PW1/F, letter sent by her to STO, Ward No. 77 as Ex. PW1/G from the reply of which it was found that the firm M/s Aggarwal Jain Sweet Corner is CC No. 189/04 FI Vs. Neeraj Singhal Page 8 of 16 registered with the Sales Tax, letter sent to DHO, Shahdara Zone, MCD regarding issuance of license as Ex. PW1/H, letter sent to the vendor/accused as Ex. PW1/I, its replies as Ex. PW1/1 & Ex. PW1/2, sanction given by the Director, PFA for initiating the prosecution proceedings against the accused as Ex. PW1/J, complaint as Ex. PW1/K, intimation letter sent to the accused along with PA report as Ex. PW1/L and its postal registration receipt as Ex. PW1/M.
15. PW2 Sh. Anil Banka, the then SDM/LHA under whom supervision and direction, the sample proceedings were conducted has also deposed on the similar lines as deposed by PW1 in his examinationin chief.
16. PW3 Sh. Manohar Lal, Field Assistant who was made a witness at the time of conducting the sample proceedings has corroborated the version of PW1 and PW2 in his examinationinchief.
17. In her crossexamination, PW1 admitted that if a representative sample is analyzed by two Analysts, their analytic results should be identical. She further stated that she cannot comment upon the variation an the moisture content and milk fat contents on dry weight basis in two report. She denied the suggestion that different samples were sent to different Analysts. Similarly, PW2 Sh. Anil Banka denied the suggestion CC No. 189/04 FI Vs. Neeraj Singhal Page 9 of 16 in his crossexamination that the variation between the report of PA and CFL is indicative of the fact that representative sample was not taken in this case. PW3 also denied the suggestion in his crossexamination that variation between PA and CFL Report, if any, indicates the fact that a representative sample was not taken in this case.
18. The accused in his statement U/s 313 Cr.P.C. has not disputed the fact that he was found conducting the business of food articles including 'Paneer' at his shop at M/s Aggarwal Jain Sweet Corner, A Block Chowk, Shop No. 3, Dilshad Garden, Delhi and a sample of Paneer was lifted by the FI Smt. Usha Kiran for analysis from him. It is also not in dispute that sample of Paneer was sent to the Public Analyst for analysis and the sample was found not conforming to standard because moisture exceeded the prescribed maximum limit of 70% and milk fat of dried matter was less than the prescribed minimum limit of 50%. The report of Public Analyst has been proved on record as Ex. PW1/F.
19. The accused exercised his right u/s 13 (2) of the PFA Act and consequently second counterpart of the sample selected by the accused was sent to the Central Food Laboratory (CFL), Pune for analyzing the sample and the report thereof in the form of Certificate of the Director, CFL, Pune dated 17.11.2005 was received, which shows that sample commodity failed CC No. 189/04 FI Vs. Neeraj Singhal Page 10 of 16 on the ground that the 'milk fat content on dry weight basis' was found to be 20.14% against the minimum prescribed requirement of 50%.
20. The defence of the accused from the aforesaid cross examination of PWs and in his statement U/s 313 Cr.P.C is that Food Inspector did not take the representative sample as the sample was not taken properly by the Food Inspector and that is why there is huge variations between report of CFL and PA.
21. Though, all the PWs in their examinationinchief have stated that a brick of Paneer weighing about 1 Kg. was cut into smallest pieces with the help of clean and dry stainless steel knife in a clean and dry stainless steel tray and was mixed properly with the help of same knife and out of this . 750 gms. of Paneer was taken as sample for analysis. But, PW 2 Sh. Anil Banka, under whose supervision and direction the raid was conducted stated in his crossexamination that he does not remember if the FI lifted the brick of Paneer with her hands and put the same in another tray. He further stated that he does not remember as to what utensil was used for weighing the Paneer at that time. He further stated that he does not remember as to how the Paneer was transferred from the other steel tray in the utensil wherein, it was weighed. He further stated that he does not remember if the Paneer was weighed directly into Pan Balance or it was put CC No. 189/04 FI Vs. Neeraj Singhal Page 11 of 16 in any other utensil for weighing the same. He further stated that he does not remember if the FI had washed and dried her hands at the spot or not.
22. The aforesaid deposition of PW2 in his crossexamination shows that he feigned ignorance about the procedure adopted by the Food Inspector at the time of lifting the sample and it supports the contention of the accused that sample was not properly lifted by the Food Inspector and a representative sample was not taken.
23. The contention of the accused that a representative sample was not taken by the Food Inspector is further substantiated from the variations in the reports of Public Analyst (PA) and Director, Central Food Laboratory (CFL). As per report of Public Analyst (PA) Ex. PW1/F, the 'milk fat content on dry weight basis' of the sample has been shown to be 35.54% as against the minimum prescribed requirement of 50%, while in the report of CFL, the 'milk fat content on dry weight basis' of the sample has been shown to be 20.14% against the minimum prescribed requirement of 50%. Similarly, 'moisture' of the sample has been shown to the tune of 72.02% as against the prescribed requirement of 70% as per PA report Ex. PW1/F, while same has been shown to be 50.11% in the report of Director, CFL. Further, as per report of PA Ex. PW1/F, 'the butyro refractometer reading at 40 deg C of the extracted fat' of the sample has been shown to be CC No. 189/04 FI Vs. Neeraj Singhal Page 12 of 16 42.08%, while same has been shown to be 42% as per report of Director, CFL.
24. The variations in the report of aforesaid two Analysts appears to be on higher side and it goes to show that the sample was not properly mixed up or homogenized before lifting it and hence it cannot be said to be representative sample. 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.
25. In view of law laid down in the aforesaid authorities, since there is variations in the report of Public Analyst and Director, Central Food Laboratory which is beyond the permissible limit of .3 %, it appears that sample was not representative one and, therefore, benefit of doubt is CC No. 189/04 FI Vs. Neeraj Singhal Page 13 of 16 liable to be given to the accused.
26. Further, from the perusal of record it is evident that sample of Paneer was lifted by FI Smt. Usha Kiran on 29.03.2004 and the present complaint has been filed on 23.09.2004 on the basis of PA's report dated 16.04.2004 i.e. after about 6 months from lifting the sample. The second counterpart of the sample was analyzed by the Director, CFL on 17.11.2005 i.e. after about 1 ½ years from the date of lifting the sample.
27. As such, it is apparent that there is huge delay in analyzing the sample lifted by the Food Inspector from the accused. No explanation has been put forth by the prosecution for delay in filing the complaint after six months from the date of lifting the same. As a result, the accused could exercise his right U/s 13 (2) of DRC Act only after lapse of more than six months after receiving the intimation of present complaint, which again resulted in huge delay in analyzing the sample by Director, CFL on 17.11.2005 and by that time, the sample of Paneer might have decomposed and became unfit for analysis being of perishable nature.
28. It has been held in Gian Chand Vs. The State by the Hon'ble Delhi High Court that, "Normally the sample with the Food Inspector, to which preservative had been added, could not have remained fit for analysis after more than six months even if it had been kept in a CC No. 189/04 FI Vs. Neeraj Singhal Page 14 of 16 refrigerator." In the said case the sample of milk lifted for analysis was found adulterated by the Public Analyst. The Hon'ble Delhi High Court has also held in State Vs. Parveen Aggarwal 2012 (2) FAC 124 by that, "It is scientifically proved fact that over the passage of time, the milk fat content in a sample of Paneer decreases."
29. In the present case also, it is undisputed fact that sample commodity was of milk product i.e. Paneer, which is a perishable item and same was got analyzed by Director, CFL on 17.11.2005 i.e. after about 1 ½ years from the date of lifting the sample on 29.03.2004. Admittedly, the sample commodity was not kept in refrigerator. PW2 Sh. Anil Banka with whom the sample counterparts were deposited has admitted in his cross examination that two counterparts were deposited with him at room temperature and they remained at room temperature till the same were forwarded to the court. He even could not deny that shelf life of Paneer is only one month or that when it was tested by CFL, Pune, it was not fit for analysis. Even if it is assumed that the sample was kept in a refrigerator, still in view of law laid down in the aforesaid authority cited supra, it cannot be said that the sample of 'Paneer' remained fit for analysis after 1 ½ years from the date of lifting the same.
30. In view of above, as in the present case, admittedly the sample CC No. 189/04 FI Vs. Neeraj Singhal Page 15 of 16 commodity was of perishable nature and was not kept in refrigerator and there is huge delay in analyzing the sample by the Director, CFL, therefore, there appears to be substance in the contention of the Ld. Counsel for accused that due to delay in analzing the sample, the quality of the sample might have been decomposed due to passage of time and, therefore, proper analysis of the sample could not be obtained from the Director, Central Food Laboratory. Even by the time when the present complaint has been filed, the sample of Paneer might have deteriorated as admittedly the present complaint has been filed after six months from the date of lifting the sample and shelf life of the milk product even after addition of preservative is not more than six months. Therefore, for this reason also, benefit of doubt is liable to be given to the accused.
31. In view of above reasons and discussions, I am of the considered opinion that the prosecution has failed to prove its case against the accused beyond reasonable doubt, benefit of which must go in favour of accused. Accordingly, benefit of doubt is given to the accused and the accused is acquitted of the charges leveled against him.
File be consigned to Record Room.
Announced in the open Court (Balwant Rai Bansal)
on 30th May, 2013 ACMMII/ PHC/ New Delhi
CC No. 189/04
FI Vs. Neeraj Singhal Page 16 of 16
CC No. 189/04
DA Vs. Neeraj Singhal
30.05.2013
Present: Sh. Masood Ahmad, Ld. SPP for complainant.
Accused with the counsel Sh. R.D. Goel.
Vide my separate Judgment of even date dictated and announced in the open court, accused stands acquitted of the charges leveled against him. Previous Bail Bond / Surety Bond stands cancelled. Surety stands discharged. Endorsement on the documents of the previous surety, if any, be cancelled.
Accused is directed to furnish fresh bail bonds in compliance of Section 437A Cr.P.C. Accused has furnished B/B & S/B in the sum of Rs. 15,000/. The same is accepted.
File be consigned to Record Room.
(Balwant Rai Bansal) ACMMII/PHC/ND/30.05.2013 CC No. 189/04 FI Vs. Neeraj Singhal Page 17 of 16