Delhi District Court
Also At vs The State on 1 August, 2012
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IN THE COURT OF MS. NEENA BANSAL KRISHNA :
ADDITIONAL SESSIONS JUDGE-01 : NEW DELHI
In re :
CA No. 39/11
Suresh Kumar
S/o Late Sh. F. C. Gupta,
M/s Mahajan Departmental Store,
152, Main Road, Maujpur, Delhi.
Also at :
171, Jammu Mohalla,
Maujpur, Delhi. ..... Petitioner
versus
The State
[Delhi Administration]
PFA Department,
A-20, Lawrence Road,
Industrial Area, Delhi. ..... Respondent
Date of institution of the appeal : 04.07.2011
Date of reserving judgment/order : 10.07.2012
Date of judgment / order : 01.08.2012
JUDGMENT :
1 This appeal u/s 374 Code of Criminal Procedure against the conviction of the appellant vide judgment dated 12.05.2011 vide which the appellant has been convicted u/s 7/16 of PFA Act and order on sentence dated 01.06.2011 vide which the appellant has been sentenced to undergo rigorous imprisonment for one year and fine of Rs.5,000/-, in default CA No. 39/11 Page No. 1 of 11 -2- further SI for 10 days.
2 The facts in brief are that on 22.01.2004 at about 07.30 p.m. Food Inspector Sh. R. K. Bhaskar along with the Food Assistant Naubat Singh, under the supervisions and directions of Sh. Samir C. Menz, the then SDM/LHA had purchased a sample of 1.5 kg of "Rajma Whole" on payment of Rs.45/- from Sh. Suresh Kumar of M/s Mahajan Departmental Store, 152, Main Road, Maujpur, Delhi, where the said food articles were found stored for sale. The sample of "Rajma Whole" was mixed properly with the help of clean and dry "Jhaba" and then was divided into three equal parts by putting them into three clean and dry bottles. Each bottle was packed separately, fastened and sealed according to PFA Act and Rules. One sample was sent to Public Analyst, who found the sample to be adulterated because it was insect infested with large number of living and dead insects. Further, damaged grains exceed the maximum limit of 5%. Mycrotoxin including Aflatoxin is more than 30 mg/kg and Uric Acid content exceeds the maximum limit of 100 mg/kg.
3 The complaint was filed before the Ld. ACMM after the consent u/s 20 of the PFA Act was accorded. 4 The accused was summoned vide order dated 19.04.2004 and on appearance he did not exercise the option u/s 13 (2) of the Act 5 The charges for the violation of the provisions of Section 2 (ia) (a) (f) (i) & (m) of PFA Act, punishable u/s 16 (1A) CA No. 39/11 Page No. 2 of 11 -3- r/w Section 7 of the PFA Act was framed against the accused, to which he pleaded not guilty and claimed trial. 6 The prosecution in support of its case examined two witnesses namely PW1 R. K. Bhaskar, Food Inspector and PW2 Sh. Samir C. Menz, the then SDM/LHA.
7 The statement of the accused was recorded u/s 313 Cr.PC, wherein he submitted that the presence of live or dead insects in the "Rajma Whole" was on account of subsequent growth as the bottles were neither fumigated nor vacuum created before the taking of the samples in the said bottles.
8 The Ld. ACMM vide his judgment dated 12.05.2011 convicted and sentenced the accused Suresh Kumar, against which the present appeal has been filed.
9 Ld. counsel on behalf of the appellant has argued that when the sample was taken on 22.01.2004, the total quantity taken of the sample had not been indicated on Form
6. In the panchnama also there is no mention that the food product has been mixed properly before the sample was taken and also the panchnama bears the signatures of Food Inspector alone. It is argued that it has not been in compliance of Rule 14 of the Act and that the packing and sampling had been defective. The challan has been filed in the Court highly belatedly on 19.04.2004, which materially prejudiced the right of the appellant u/s 13 (2) of the Act. Moreover, the copy of the report of Public Analyst was never served upon the appellant and thus, he was unable to exercise his right u/s 13 (2) of the CA No. 39/11 Page No. 3 of 11 -4- Act. It is further argued that the Public Analyst's report is not signed by the Public Analyst himself and thus, it was mandatory for the prosecution to have examined the Public Analyst, who had conducted the analysis and in his absence the report cannot be relied upon. It is also argued that "Rajma Whole" is a primary food for which there is no separate standard. The defective grains were found to be 12%, though there is no unit of standard measurement given. The Uric Acid was found present in the sample only because of the insects. Also, the insects have not been specified and there is no finding that the food has become injurious and unfit for human consumption. The appellant is, therefore, entitled to be acquitted.
10 The Ld. Prosecutor on behalf of the Department has argued that the procedures have been duly followed while lifting the sample. In fact, the report of Public Analyst had also been sent to the accused, who intentionally did not exercise his right u/s 13(2) of the Act and "Rajma Whole" was in fact adulterated. It is submitted that the appellant has been rightly convicted and he is not entitled to any benefit. 11 I have heard the arguments and perused the record. My observations are as under :
12 The Food Adulteration Act has been enacted to curb and remedy the widespread evil of food adulteration, and to ensure the sale of wholesome food to the people. It was observed in the case of "MCD v. Kacheroo Mal, (1976) 1 SCC 412", that wherever possible, without unreasonable CA No. 39/11 Page No. 4 of 11 -5- stretching or staining, the language of such a statute should be construed in a manner which would suppress the mischief, advance the remedy, promote its object, prevent its subtle evasion and foil its artful circumvention. 13 In the light of these observations, it is first required to understand on what basis the food item i.e. "Rajma Whole"
had been claimed to be adulterated. As per the prosecution the sample of "Rajma Whole" had been taken on 22.01.2004 and was analyzed by the Public Analyst from 27.01.2004 to 10.02.2004. It was opined that the sample was adulterated as it was infested with 7 living and 24 dead insects as against the standard of not being insects infested. The grains damaged by fungus, moisture or heating internally was found to be 12% as against the prescribed standard of not more than 5% by weight. The Uric Acid content was found to be 329.6 mg/kg as against the maximum of 100 mg/kg and Mycrotoxin was found to be 50 ppo as against the maximum of 30 mg/kg. The basic ground for holding the sample to be adulterated was the presence of insect infestation and damaged grains.
14 The basic Section which gets invoked in the present case is Section 2(ia)(f), which reads as under :
"2(ia) "adulterated" - an article of food shall be deemed to be adulterated -
(a) to (e) ............. ........... ...............
(f) if the article consists wholly or in part of any filthy, putrid, disgusting, rotten, decomposed or diseased animal or vegetable substance or is insect-CA No. 39/11 Page No. 5 of 11 -6-
infested or is otherwise unfit for human consumption."
15 The first thing, therefore, which needs to be understood is the meaning of the term "insect-infested". The expression "insect-infested" has not been defined in the Act. The meaning of term "insect-infested" was explained in the case of "Dhan Raj v. MCD, 1973 Crl.L.J. 433 (Delhi)" that the word "infest" appears to have been derived from the Latin word "infestare" which meant assail or molest. According to the Oxford English Dictionary (Volume V. at page 259) word "infest" means "to attack, assail annoy, or trouble (a person or thing) in a persistent manner; to vist persistently or in large numbers for purposes of destruction, plunger, to swarm in or about so as to be troublesome". In the same Dictionary the word "infestation" is stated to mean: "The action of infesting, assailing, harassing, or persistently molesting." It is also mentioned that the word is now used especially for 'insects which attack plants, grain, etc. in large swarms". Thus an article of food would be "insect-infested," if it has been attacked by insects in swarms or numbers. There is no justification for the view that insect-infestation would only continue so long as the insects continue to be alive. If an article of food is attacked by insects in swarms or numbers and for some reason these insects die, the mere fact that article of food has no longer living insects but has dead insects will not change its character of being insect-infested.
CA No. 39/11 Page No. 6 of 11 -7-16 The scope of adulteration on account of insect infestation as covered by Section 2 (ia) (f) was discussed at length by the Supreme Court in the case of "Kacheroo Mal (supra)". It was noted that in case there is no standard prescribed under the Rules, then in order to qualify as adulteration on account of insect infestation it has to be further shown that such insect infestation made the food article not fit for consumption. However, in the case of articles for which the Rules lay down any minimum standard of purity with reference to any of the vices i.e. was filthy, putrid, disgusting, rotten, decomposed or diseased animal or vegetable substance or is insect-infested as specified in this clause; mere proof of the fact that the impurity was in excess of that countenanced by the prescribed standard would be conclusive to show that the article was unfit for human consumption.
17 It was further explained in the case of "MCD v. Tek Chand Bhatia, 1979 (2) FAC 218", that the various categories of adulterated food mentioned in Section 2(ia)(f) broadly fall into the two kind of adulteration ;
(i) firstly, where the constituent elements make the food obnoxious to human health or the existence of the particular composition of it, itself makes the food 'adulterated' and unfit for human consumption, and
(ii) secondly, where the adulteration is constituted by the fact that the prescribed standard has not been observed in selling what purports to be a food of that standard or quality.
CA No. 39/11 Page No. 7 of 11 -8-18 In the present case since there exists a standard for food grains under Article 18.06.14 which specifically states that the food grains shall be not insect-infested, the presence of 7 live insects and 24 dead insects in the sample of "Rajma Whole" as noted by the Public Analyst in the report Ex.PW1/G would per se make the food item adulterated. 19 However, the next question which remains to be examined is whether the said insect infestation existed even at the time of the lifting of the sample or such infestation took place after the sample was taken on 22.01.2004 and before it was analyzed by the Public Analyst from 27.01.2004 to 10.02.2004. For this it would be pertinent to refer to the testimony of the prosecution witnesses. PW1 Food Inspector Sh. R. K. Bhaskar had admitted in his cross-examination that "Rajma Whole" is a primary food and no live or dead insect was visible with naked eye. He had further deposed that he could not say if insect infestation was a natural process and beyond the control of human agency.
20 Likewise, PW2 Sh. Sameer C. Menz, the then SDM/LHA has also admitted in his cross-examination that no insects were visible with naked eye at the time of sampling. 21 The fact which, thus, emerges is that according to the prosecution witnesses no live insects were visible at the time of sampling. Similar facts came up for consideration in the case of "A.P. Goel & Anr. v. The State (Delhi Admn.), 2001 (1) FAC 168", wherein also the insects were not visible at the time the sample was taken, but were found to be present by CA No. 39/11 Page No. 8 of 11 -9- the Public Analyst in his report and again by the Director, CFL in his report which was prepared after about 10 months of taking of the sample. It was observed that the presence of live and dead insects in the sample would indicate that the bottles had not been sealed properly so as to prevent moisture from entering into the bottles and the sample having deteriorated on account of faulty sealing.
22 Likewise, in the case of "MCD v. Ramji Dass & Ors., 1983 (Vol. VII) Page 301", the Delhi High Court had noted that if the sample is analyzed after six days of its lifting then insect can develop during this period. 23 In "Shakti Kumar Agrawala v. State of Orissa, 1991 FAC (Vol. XII) 579", High Court of Orissa noted that where the Food Inspector admittedly did not notice any insects in the sample at the time of taking the sample, insects infestation reported subsequently, is a subsequent development for which the petitioner cannot be held responsible. It was noticed that it is common knowledge that insects like weevil are visible to the naked eye. The very fact that they were not noticed at the time of taking the sample shows that they have developed subsequently. 24 Similar were the facts involved in the case of "Raghubir Sharan v. State, 1972 FAC 389", wherein Delhi High Court in similar facts observed that when no insects were noticed at the time of taking of sample, the possibility of insect infestation having taken place subsequently cannot be ruled out.
CA No. 39/11 Page No. 9 of 11- 10 -
25 In "State v. Anil Kumar Sodhi & Anr., 2009 [2] JCC 904", the sample of "Atta" was found to contain three living and three dead insects, it was observed that the vendor would not deliberately add insects to the sample for the purpose of increasing the value or to down grade the quality of the food. The presence of insects can only be attributed as an incident which may occur due to open storage. 26 Likewise, in "Hawa Singh v. State of Haryana, 1994 (II) FAC 250", it was held that the petitioner cannot be credited with a guilty knowledge because according to the evidence of Food Inspector the worms and insects could not be noticed when the sample was taken. In all probability the petitioner was selling the article without knowing that there were any insects or worms. Therefore, petitioner could not be burdened with any criminal liability in such a situation. 27 The entire case law as discussed above clearly reflected that in case of primary food grains, which are susceptible to insect infestation due to open storage, the food article cannot be said to be adulterated if no such insect infestation was noticed at the time of sampling, as possibility of such infestation having taken place after the sample was taken, cannot be ruled out. The possibility of sample being not sealed properly can be a contributory factor for insect infestation to take place and this is fully supported by the fact that live insects were found which could have survive only if the bottles were not sealed air tight.
28 In the present case, no insect infestation was CA No. 39/11 Page No. 10 of 11
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noticed at the time of sampling and subsequent insect infestation found in the analysis of the Public Analyst could have been on account of faulty sampling and the presence of Uric Acid and Mycrotoxin is obviously on account of the presence of these insects. Therefore, the accused is entitled to be acquitted.
29 The appeal is accordingly allowed. Conviction is hereby set aside and the appellant is acquitted. Bail bond and surety bond stand stand cancelled.
30 Trial Court Record be sent back alongwith the copy of this order.
31 Appeal file be consigned to the Record Room. Announced in the open Court on 01st Day of August,2012.
(Neena Bansal Krishna) ASJ-01/PHC/New Delhi CA No. 39/11 Page No. 11 of 11