Delhi District Court
Lal Chand vs The State ( Delhi Administration ) on 2 July, 2008
1
IN THE COURT OF SHRI S.K. SARVARIA
ADDITIONAL SESSIONS COURT
NEW DELHI
CRIMINAL APPEAL No. 01/2000
Lal Chand
Son of Sh Basant Lal
R/o R 1132/2, Model Town
Delhi
Appellant
Versus
The State ( Delhi Administration ) Respondent
Date of Institution : 27.1.2000
Date when the arguments
were heard/filed : 4.6.2008
Date of judgment : 2.7.2008
JUDGMENT
This appeal is directed against the judgment dated 11.11.99 passed by learned Metropolitan Magistrate by which he has convicted the appellant under section 16 read with section 7 of PFA Act 1954. By subsequent order on sentence dated 16.11.99 the appellant was sentenced to undergo simple imprisonment for a period of one year and fine of Rs.3000/. In default of payment of fine, he was to undergo simple imprisonment for one month. Aggrieved by the judgment and order on sentence passed by the learned trial court the appellant was preferred this appeal.
2BRIEF FACTS The prosecution case, in brief, is that on 14.8.92 at about 4.30 p.m, the Food Inspector Sh. Arun Kumar, purchased a sample of Suji from the appellant at his shop situated at Kohla Pur Road Delhi. The appellant was conducting the business of the shop at the time of sampling and the said suji was taken from an open gunny bag bearing no label declaration. The sample was taken after properly mixing with the help of clean and dry jhaba and it was divided in three equal parts and each part was put in separate clean and dry bottles. The one counter part of the sample was sent to Public Analyst who by her report dated 24.8.92, opined that sample was adulterated because it was insect infested with large number of insects. Thereafter, the sanction for prosecution was obtained from the competent authority and complaint was filed against the appellant before the ld Metropolitan Magistrate, New Delhi. The appellant exercised his right under section 13 (2) of the PFA At in the second counterpart of the sample was sent Director CFL, Mysore who also found the said food item to be adulterated due to insect infestation as per Certificate dated 2/12/1992 issued by him.
CHARGE AND PLEA OF THE ACCUSED Charge of offences punishable under section 16(1) read with Section 7/16 PFA Act was framed against the appellant by the learned trial court to which he pleaded not guilty and claimed trial.
PROSECUTION EVIDENCE In support of its case, the prosecution has examined three witnesses in all. 3 PW1 Sh.K.G.Rao, Local Health Authority, PW2 Sh. Arun Kumar, Food Inspector and PW3 Sh.Sanjeev Kumar Gupta, Food Inspector and closed its evidence.
PLEA AND DEFENCE OF THE ACCUSED.
In his statement U/s 313 Cr.P.C the appellant has admitted that the Food Inspector Sh Sanjeev Gupta and other members of the PFA department under the supervision of K.G Rao visited his shop but according to him the sample was not taken in a proper way. He has signed many documents which were blank under the threat of food inspector and statutory documents were prepared in his absence. He admitted that he had exercised his right U/s 13 (2) of PFA Act. He has also stated that he was innocent and the report of Public Analyst was wrong. He tested the sample after four days and the samples was taken improperly.
In support of its case the appellant has produced only one witness Dr. J. S. Pruthi an expert witness who is MSc Agriculture and PhD in Food Chemistry with 53 years of professional experience in different facets food science and technology and thereafter the appellant closed his defence evidence. FINDINGS.
I have gone through the written arguments filed on behalf of the appellant, the trial could record, the appeal file and the relevant provisions of law, carefully. Despite opportunity the written arguments are not filed on behalf of of the respondent State.
The main contention on behalf of the appellant is that the second counterpart of the sample was examined by the Director CFL after about four 4 months of lifting of the sample and the Certificate of Director CFL shows that there were living and dead insects in the sample which means that the sample bottle was not airtight otherwise there is no question of living insects in it even after four months of lifting of the sample. He has also relied upon the evidence of defence witness DW1 Shri J. S. Pruthi an expert examined on behalf of the appellant. He has also stated in the written arguments that the Food Inspector has stated that he did not notice the insect at the time of taking sample. He has also relied upon authorities which are being discussed below.
In the present case the sample of food articles Suji was lifted on 14/8/1992 by the Food Inspector from the appellant. The Certificate of Director CFL Ex PX bear the date 2/12/1992 to show that the sample was analysed at CFL after more than 3 1/2 months. The Certificate of Director CFL also shows that there were living and dead insects in the sample.
In A.P. Goel and another v. The State (Delhi Admn.) 2001 (1) FAC 168 (Del), relied on behalf of the appellant, it was observed as follows :
"4. On the basis of the complaint before the learned Metropolitan Magistrate, it was found that the sample, which was sent to the CFL was found to contain both living and dead insects. The argument, therefore, that found favour with the learned Metropolitan Magistrate was that the sample was not properly sealed so as to prevent moisture from entering into the bottle thereby causing the deterioration of the sample. The learned Metropolitan Magistrate relied upon the 5 judgment of this Court in M.C.D. v. Ved Parkash1984 II FAC 304. The facts of' the case decided by the High Court were more or less para materia to the case in hand. This Court had held that once living insects are found in the sample sent to the laboratory after five months, it can safely be inferred that the sample was placed in a bottle, which was not in light and sealed. In the present case, the CFL examined the sample after a period of 10 months and found substantial amount of living and dead insects thereby giving rise to the inference, that the sample was not preserved correctly or properly sealed."
It was further held as follows:
"6..........The sample having been sealed on 21.1.1986 by PW3, who deposed to the effect that there was no visible insect in the sample at that time. The CFL report dated 21.11.1986 indicated that a substantial amount of dead and living insects were present in the sample. The sample, which was required to be preserved in air tight bottle so as to preserve it, was not done, leading to its deterioration. The sample cannot be relied to be that of the wheat lifted on 21.1.1986."
In State of Punjab v. Raj Kumar 1983 (I) FAC 200 (P & H) (DB), relied on behalf of the appellant, it was observed as follows:
"2 It is not a fit case in which we should interfere with the order of acquittal. There is not a shred of evidence on the file that the Saunf Purchased by the Food Inspector was insect damaged or otherwise unfit for human consumption. The mere presence of the insects in sample will not render 6 the same adulterated. The Standard of Saunf has been prescribed in Rule A. 05.11, Appendix B of the prevention of Food Adulteration Rules, 1955. Extraneous matter including dust, dirt, stone, lumps of earth, chaff, stem or straw shall not exceed 5.0 per cent by weight and the amount of insect damaged matter is permissible to the extent of 5.0 per cent by weight. The Food Inspector has deposed that he has not seen any insect living or dead in the Saunf at the time of taking the sample and as such the possibility cannot be ruled out that the insects might have developed in the sample after the same was lifted. There is no merit in this appeal which is hereby dismissed."
In A.P. Goel and another v. The State of (Delhi Admn.) 2001 (1) FAC 168 (Del), relied on behalf of the appellant, it was observed as follows:
"6. Having heard learned counsel for the petitioner as also the learned counsel for the State, I am of the opinion that the case in hand is covered by the Judgment of this Court in MCD v. Ved Parkash (supra) and, therefore, the learned Additional Sessions Judge was not correct in interfering in the matter in revisional jurisdiction. The sample having been sealed on 21.1.1986 by PW3, who deposed to the effect that there was no visible insect in the sample at that time. The CFL report dated 21.11.1986 indicated that a substantial amount of dead and living insects were present in the sample.
The sample, which was required to be preserved in air tight bottle so as to preserve it, was not done, leading to its deterioration. The sample cannot be relied to be that of the wheat lifted on 21.1.1986." 7 In Shri Raghbir Sharan v. State 1972 FAC 389 (Del), relied on behalf of the appellant, it was observed as follows:
"5. The evidence of these witnesses has not been challenged and these witnesses are Public Analysts. There is not reason to doubt there testimony. According to the evidence of these witnesses, it is possible to for eggs or larva to be present in the basen without being visible to the naked eye and for these eggs or larva to grow into insects within the period of three days. In the present case even according to the evidence of the Food Inspector, P.W. 2, no insects were present when the purchased the sample of basen from the petitioner on 2961968 and that, as a matter of fact, he had not purchased the sample because of suspicion that it was insectinfested. The Public Analyst in his report, Ex....... has merely stated that the sample was insectinfested (living insects), but has given the percentage of insectinfestation. It is, therefore, possible that insectinfestation found by the Public Analyst was not present in the sample when it was taken on 2961968. It cannot, therefore, be said the sample of basen purchased by the Food Inspector from the petitioner on 296 1968 was adulterated. Accordingly to the report of the Public Analyst, the said sample was not adulterated in other respects. The additional evidence adduced by the petitioner would entitle him to an acquittal."
In Municipal Corporation of Delhi v. Badri Nath 1982 (1) FAC 211 (Del) (DB), relied on behalf of the appellant, it was observed as follows : 8
"7. The learned counsel for the respondents placing strong reliance on a decision of Allahabad High Court in Radheylal Gupta v. State and another, 1979 (II) FAC 91, strenuously contends that October being a rainy season and the sample having been analysed on the third day, the probability of the insects having grown during that period could not be ruled out. That being so, he submits that in the facts and circumstances of the instant case, it could not be said with any degree of certainty that the sample was infested on 1st October, 1973, the date when it was taken, especially when even the Food Inspector J.S. Chadha admits that he did not see any insects with the naked eye. The learned counsel vehemently submits that at best according to the prosecution case at the time the sample was taken, eggs could be said to be present in the Atta and not insects as according to the testimony of Dr. Pingley the incubation period for eggs is 4 to 7 days. That being so, because of the eggs found in the Atta purchased by the Food Inspector from the respondents, the Atta could not be said to be insectinfested and hence adulterated. There appears to be merit in the submission sought to be urged on behalf of the respondents........."
In Municipal Corporation of Delhi v. Shri Ramji Dass and another 1983 (II) FAC 20 (Del) (DB), relied on behalf of the appellant, it was observed as follows:
"8...........The article of food was taken on 12th September and it was analysed on 17th September. There was a time lapse of about 6 days in the taking of the same and its examination. Dr. Ajwani has stated that an insect may develop from an egg to an insect in about 1 to 14 days. It is 9 possible that the living insects may have developed in the sample in question after the sample was taken. P. W. 4 gave evidence that the sample of Suji was taken out of a gunny bag which was half full and that he did not see any insect when the sample was taken. We also find that the report of the Public Analyst does not mention the number of living insects found in the sample which could mean that the number of insects may be only
2 or 3. The expression "insect infested" would mean a swarm of insects or at least a large number of insects. The Food Inspector may have from the presence of few insects concluded that the article of food was insect infested. See M.C.D. v. Bhawanl Shankar, 1975 (I) FAC 251 and Raghbir Sharan v. State, 1972 FAC 389."
In State (Delhi Admn.) v. Inderjit Singh and another 2005 (1) FAC 161 (Del), relied on behalf of the appellant, it was observed as follows :
"3. On evaluation of the evidence on record, the learned Magistrate returned a finding that the report of the Director, CFSL shows living insects found in the sample meaning that the sample was not properly sealed and on this account has acquitted and accused. Counsel for the State has not been able to show me as to how with living insects found in the sample, it could be said that the sample was properly secured as per rules framed under the Prevention of Food Adulteration Act. He is also not been able to show me as to what is the infirmity in the judgment under challenging. That being the case, I find no reason to interfere with the wellreasoned judgment of the 10 trial court. Crl. A. 58/1986 is accordingly dismissed."
In Om Prakash v. The State of Punjab 1986 (I) FAC 77 (P & H), relied on behalf of the appellant, it was observed as follows:
"2. Mr. Chhibbar, has very fairly not contested the recovery of the atta from the dhaba of the petitioner on the relevent day. In fact, his sole contention is that from the material on the record, it could be inferred that the recovered atta remained un anaylsed for a period of about 24 days and during this long period the possibility of some insects (susris) having infested the atta could not be excluded. He has placed reliance upon a Single Bench decision of this Court in Makand Lal v.The Stage, 1975 (1) F.A.C. 211, wherein the accused was given the benefit of doubt on the ground that the atta had remained unexamined and unanalysed for 12 or 13 days. Indeed, in that case the recovery pertained to the month of July which is a rainy season, but no hard and fast rule can be laid down in this behalf that such insect infestation could not have taken place during the month of February, as in the present case. It was the bounden duty of the prosecution to rule out this possibility by producing expert evidence on the file, which has not been done. In these circumstances, the petitioner is entitled to the benefit of doubt."
In Shakti Kumar Agrawala v. State of Orissa 1991 (XII) All India prevention of Food Adulteration Journal (AIPFAJ) 579 (Ori), relied on behalf of the appellant, it was observed as follows:
"8........Although, the report of the Public Analyst, Ext. 9 does not mention the actual date on which 11 the sample was analysed in the laboratory, on a consideration of the aforesaid two rules, it has been taken that the sample of Suji was examined either on the date the Public Analyst's report was signed by him or one or two days prior to that date. Thus, there was delay of more than two months in the analysis of the sample Suji by the Public Analyst. According to the Public Analyst, the sample of Suji was adulterated because the same was infested having contained sight weevils and plenty of dead insects. In Ram Parkash v. The State of Punjab 1982 (1) FAC 10, and in Municipal Corporation of Delhi v. Ramji Dass and another 1983 Cr LJ 1933, the delay in examination of sample of food articles has been deprecated and it has been further held that if at the time of taking sample there was no insect therein and there is possibility of the sample being insect infested at a later stage, then the accused is entitled to an acquittal keeping this principle of law in the background, 1st let me examine if for the delay of more than two months in the analysis of the sample of Suji by the Public Analyst, the petitioner is entitled to benefit. In this connection it is pertinent to note that P.W. 2 has admitted in his evidence that on 1031980 when he took the sample he did not notice any insect in the sample of Suji. It is common knowledge that insects like weevils are visible to the naked eye. Thus, the insect infestation found by the Public Analyst is a subsequent development and the petitioner cannot be held responsible for the same. In any case, when there was no insect in the Suji in question on the date the sample was taken the charge against the petitioner has to fail."
In the light of the above case law it is clear that if the Food Inspector did 12 not saw the insects in the sample at the time of taking sample and the sample was found to contain insects living or dead at the time of analysis the inference is that the sample bottle was not airtight. Further, if there was delay in taking the sample and in the analysis of the sample by the expert dead and the living insects are found in the sample, the same inference arises. In the present case the Food Inspector PW2 Shri Arun Kumar has stated in the crossexamination that he did not observe any insect in the Suji by visual examination while the Suji was weighed, divided into three parts, put into the sample bottles and sealed. Therefore, when this witness has not seen the insects in the sampled food article which was put in the three counterparts in three sample bottles two of which were examined by Public Analyst and Director CFL and the Certificate issued by Director CFL shows that the sample contained living and dead insects, the only inference which arises is that the insects came in the sample after the sample was taken and before analysis in CFL. Further the expert witness DW1 Dr JS Pruthi has stated that if in any closed sample bottle living insects are found after 3 1/2 months it is indicative of the fact that they have been receiving oxygen from the atmosphere due to the improper ceiling of the bottle. If the larva is found in the sample bottle after 3 1/2 months this definitely means that these are born within the sample bottles and the insect activity of breeding and multiplication has taken place within the bottle itself. The process accelerates during hot and humid climate. The statement of the defence witness also supports the defence plea that the sample bottle was not airtight which lead to the generation of insects within the bottle even after about 3 1/2 months of taking sample. Therefore, it appears that due to improper sampling by not putting the sample in the air tight clean and dry bottle the insects developed in the sample bottle before it was 13 analysed at CFL. Had these insects been present in the sample at the spot the Food Inspector must have noticed the same at the time of taking sample. We cannot look into the report of the Public Analyst Ex PW1/G on this aspect as the same stood superseded by the Certificate of Director CFL Ex PX.
In the light of the above discussion and the case law relied upon by learned counsel for appellant, the appeal succeeds. RESULT OF THE APPEAL In view of the above discussion the appeal is allowed. The impugned judgement of conviction followed by impugned order on sentence passed by the learned trial court are setaside. The appellant is acquitted of the charge framed by the learned trial court. The fine, if paid by the appellant in terms of the impugned order of sentence passed by the learned trial court be directed by learned trial court to be refunded to him. The bail bonds furnished in the appeal are cancelled. The trial court record be returned alongwith the copy of this judgment. The judgment be sent to the server (www.delhidistrictcourts.nic.in). The appeal file be consigned to the record room.
Announced in the open court on 2nd day of July, 2008 ( S. K. SARVARIA ) Additional Sessions Judge New Delhi