Delhi District Court
He Has Placed Reliance On Various Case ... vs . Rama on 11 April, 2013
IN THE COURT OF SHRI BALWANT RAI BANSAL
ADDITIONAL CHIEF METROPOLITAN MAGISTRATEII,
PATIALA HOUSE COURTS, NEW DELHI
C.C. No. 65/05
Food Inspector
Department of PFA
Govt. of NCT of Delhi
A20, Lawrence Road
Indl. Area, Delhi - 35
........ Complainant
Versus
Sh. Nem Chand Aggarwal
S/o Sh. Shiv Lal Aggarwal
Nem Chand Deepak Kumar Dall Mill,
Khasra No. 91, P.O. & Vill Sanote,
Narela, Delhi40.
........ VendorcumProprietor
COMPLAINT U/S 16 OF THE PREVENTION OF
FOOD ADULTERATION ACT, 1954
Serial number of the case : 65/05
Date of the commission of the offence : 24.05.2004
Date of filing of the complaint : 18.03.2005
Name of the Complainant, if any : Shri Sunil Kumar Gupta, Food
Inspector
Offence complained of or proved : Violation of provisions of Section
2(ia) (a) & (j) of PFA Act 1954;
punishable U/s 16(1) r/w section 7
of the PFA Act.
Plea of the accused : Pleaded not guilty
Final order : Acquitted.
Arguments heard on : 28.03.2013
Judgment announced on : 11.04.2013
J U D G M E N T
1. The present complaint has been filed on 18.03.2005 by the Delhi Administration through FI Sh. Suniti Kumar Gupta against the accused Sh. Nem Chand Aggarwal. It is stated in the complaint that on 24.05.2004 at about 5:00 PM, FI Sh. Suniti Kumar Gupta purchased a sample of Dal Arhar, a food article for analysis from Sh. Vikash Mangla (vendor), S/o Sh Nem Chand from the premises of Nem Chand Deepak Kumar Dall Mill, where the said food article was found stored and ready for sale after packing and Shri Vikas Mangla (vendor) was found conducting the business of the said food article at the time of sampling. FI Sh, Suniti Kumar Gupta purchased approximately 1500 gms of Dal Arhar taken from a heap of dal lying near final filling point and ready for sale after packing. The sample was taken after proper mixing the Dal Arhar with the help of a clean and dry Jhaba by rotating the same in the Dal Arhar several times under the supervision and direction of Shri G.P. Singh, SDM/LHA. Thereafter, the 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 Shri Vikash Mangla (vendor) were obtained on the LHA slip and the wrapper of the bottles containing the sample. Notice was given to Vikash Mangla and price of sample was also paid to him vide Vendor's Receipt dated 24.05.2004. Panchnama was also prepared at the spot. All these documents prepared by Food Inspector were signed by Shri Vikash Mangla (vendor) and the other witness namely Sh. Satish Kumar Gaur, FA. 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. Satish Kumar Gaur, FA joined as witness.
2. It is further stated that one counterpart of the sample bearing LHA code No. 62/LHA/7581 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 is adulterated because it is coloured with synthetic colouring matter viz. Tartrazine".
3. It is further stated that Sh. Vikash Mangla S/o Sh. Nem Chand was the vendor of Nem Chand Deepak Kumar Dall Mill at the time of sampling and Shri Nem Chand Aggarwal was the owner/sole proprietor of the Dal Mill and as such both were responsible for the day to day conduct of the business of said dal mill. It is further stated that since Vikas Mangla (the vendor) was minor at that time a separate case under juvenile justice Act has been filed. 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) & (j) of the PFA Act punishable U/s 16 (1) r/w Section 7 of the PFA Act.
4. The accused was summoned vide order dated 18.03.2005. 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. The Director, CFL on analysing the second counterpart of the sample in question opined vide his Certificate dated 07.05.2005 that "sample bearing No. 62/LHA/7581 does not conform to the standards of split pulse (Dal) Arhar as per PFA Rules 1955.".
5. In pre charge evidence, the prosecution examination two witnesses namely Shri G.P. Singh, the then SDM / LHA, under whom supervisions and directions the sample proceedings were conducted as PW1 and FI Shri Suniti Kumar Gupta, who conducted the sample proceedings as PW2 and vide order dated 07.02.2007 pre charge evidence was closed.
6. Charge for violation of Section 2 (ia) (a) & (j) of the PFA Act, punishable U/s 16 (1) r/w section 7 of the Act was framed against the accused vide order dated 23.10.2007 to which accused pleaded not guilty and claimed trial.
7. Thereafter, in order to prove its case, the prosecution examined three witnesses namely Sh. G.P. Singh, the then SDM / LHA as PW1, Shri Suniti Kumar Gupta, Food Inspector as PW2 and Sh. Satish Kumar Gaur, Field Assistant as PW3 and PE was closed vide order dated 13.01.2011.
8. Statement of accused U/s 313 Cr. P.C. was recorded on 01.03.2011 wherein accused claimed himself to be innocent and opted to lead evidence in his defence. However, no evidence in defence was led by the accused and the DE was closed vide order dated 10.08.2011.
9. I have heard the Ld. Counsel for the prosecution and defence counsel and perused the record carefully.
10. From the perusal of the record, it is evident that prosecution has been launched against the accused on the basis of PA's report dated 10.06.2004. The report of PA has been exhibited and proved as Ex. PW1/F and same reveals that sample is adulterated because it is coloured with synthetic colouring matter viz. Tartrazine. 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 07.05.2005 was received. Perusal of same shows that sample commodity does not conform to standards of split pulse (Dal) Arhar as per PFA Rules 1955 because here also synthetic food colour namely Tartrazine was found present.
11. Ld. Counsel for accused has vehemently argued that sample lifted by the complainant FI Sh. Suniti Kumar Gupta was not representative one and it was not homogenized and, therefore, there is variations in the report of PA and Director, CFL. He has further argued that the Dal was under process and was not the final product and was not meant for sale. He has further argued that paper chromatography test is not a sure test and therefore, on the basis of its conclusions the accused can not be held guilty. He has placed reliance on various case law titled as State Vs. Rama Rattan Malhotra 2012 (2) FAC 398., State (Delhi Administration) Vs. Vijay Kumar & Ors. 2008(1) FAC 107, Municipal Corporation of Delhi Vs. Nand Kishore, Crl. Rev. NO. 158 of 1972, State of Maharashtra Vs. Vishwanathappa & Ors. Crl. Appeal No. 836 of 1977, State Vs. Subhash Chand 2012(2) JCC 1052.
12. On the other hand, the Ld. SPP for complainant has argued that 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. He has further argued that the Dal was ready for sale and was the final product. He has further argued that the prosecution has proved its case beyond reasonable doubt and hence, he is liable to be held guilty.
13. All the three witnesses examined by the prosecution have deposed more or less as per the averments made in the complaint and substantiated the averments.
14. PW2 Sh. Suniti Kumar Gupta who is the complainant in the present case and conducted the sample proceedings has deposed in his examinationinchief that on 24.05.2004 he along with FA Sh. Satish Kumar, under the supervisions and directions of SDM/LHA Sh. G.P. Singh visited the premises of M/s Nem Chand Deepak Kumar Dal Mill, Khasra No. .91, Village & POSanoth, Narela, Delhi where son of accused namely Vikas Mangla (vendor) was found conducting the business of said dal mill having stored Dal Arhar for sale for human consumption. He has further deposed that he purchased 1500 gms of Dal Ahrar from the accused taken from a heap of Dal for analysis on payment of Rs. 42/ vide vendor's receipt Ex. PW1/A. He further deposed that before taking the sample, the Dal Arhar was properly mixed with the help of clean and dry JHABA in the heap and thereafter he divided the purchased sample into three equal parts by putting them in three clean and dry glass bottles and all the three sample bottles were separately packed, marked, fastened and sealed accordingly to PFA Act and Rules.
15. PW1 has further deposed that he prepared notice Ex. PW1/B and panchnama Ex. PW1/C and copy of the notice was also received by the accused and all the above documents were read over and explained to the Vikas Mangla in Hindi and he signed the same. He has also deposed that one counter part of the sample alongwith one copy of memo in Form VII in intact & sealed condition was sent to the PA on 25.05.2004 vide 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 25.05.2004 vide receipt Ex. PW1/E. He has further deposed that PA report is Ex. PW1/F according to which the sample was found adulterated. He has proved the Sanction Ex. PW 1/G, complaint Ex. PW 1/H and intimation letter Ex. PW1/J.
16. PW1 Shri G.P. Singh, under whom supervision and directions, the sample proceedings were conducted has deposed on the similar lines as deposed by PW2 in his examinationinchief.
17. PW3 Sh. Satish Kumar, Field Assistant who was made a witness at the time of conducting the sample proceedings by FI Sh. Suniti Kumar Gupta has corroborated the version of PW1 and PW2 in his examinationinchief.
18. In the crossexamination PW1 could not comment if there were 2 or 3 storyes in the said factory premises. He further could not comment whether there was any manufacturing process going on at the first floor. He could not comment whether there was some other unfinished dal also lying in the factory premises apart from the heap of dal, from which the sample was taken. He affirmed the suggestion that the unfinished dal was in the form of Dal with chhilka. He also affirmed that the dal out of which the sample was taken was without chhilka. He further deposed that Vikas Mangla, who was present in the factory premises informed him that dal was ready for sale after getting it packed. He further deposed that they did not conduct any search of the factory to find any adulterant i.e. synthetic colour etc.
19. PW 2 in his crossexamination has denied the suggestion that the Vikas Mangla told them that the Dal was under process and was not meant for sale. He has affirmed the suggestion the Dal was yet to be packed in gunny bags otherwise it was ready for sale. He has further deposed that Vikas Mangla informed him that Dal Arhar was ready for sale after packing. He has affirmed the suggestion that accused Nem Chand Aggarwal was not present at the time of sampling.
20. From the aforesaid crossexamination of PWs, the defence of the accused appears to be that sample commodity taken by the FI Sh. Suniti Kumar Gupta was not representative one and further that the sample commodity lying in the factory was not ready for sale as such and was yet to be packed for being sold in the market.
21. It is evident from PA's Report that the sample was found adulterated because of the same having been coloured with synthetic colour viz. Tartrazine. Further, the Director, CFL has also found the sample to be adulterated on account of being coloured with synthetic colour namely Tartrazine. However, there is variations in other tests values. The Public Analyst has found the 'moisture' to the tune of 8.69% as against the maximum prescribed limit of 14% whereas, the Director CFL has found the same to be 9.20% and as such there are variations upto .59%, which is much higher than .3% which is stated to be the permissible limit. Further, the PA vide her report has found the damaged grains NIL whereas, the Director CFL has adjudged the same to the tune of 1.07%, which is totally contradictory to the opinion of Public Analyst. These variations and contradictions in the opinion of both the experts do indicate towards one point that a representative sample was not taken. In State Vs. Rama Rattan Malhotra (supra) after relying upon various judgments titled as Kanshi Nath Vs. State 2005(2) FAC 219 and State Vs. Mahender Kumar & Ors, 2008 (1) FAC 177 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 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 representatives samples were sent to both the Public Analyst as well as the CFTRI".
22. Now coming to the second contention of the accused that the sample was in manufacturing stage and was not meant for sale, in State (Delhi Administration) Vs. Vijay Kumar & Ors. (supra) it has been held that, "if a product is being manufactured, only the final product which is ready for dispatch to godown or to the wholeseller can be considered as the product meant for sale, stored in the factory. If a heap of something is lying in the factory which is neither meant for sale nor ready for dispatch to the whole seller, it can not be said that it was a final product stored in the factory.". In other authority Municipal Corporation of Delhi Vs. Nand Kishore (supra) it has been held that, "if a Food Inspector insists upon taking the sample of an article of food which is not ready for human consumption, then it will not amount to a sale of an article of food within the meaning of section 2(v) or section 2(xiii) of the Act". Similarly in State of Maharashtra Vs. Vishwanathappa & Ors. (supra) it has been observed that, "sample was taken from a processing factory and not from any shop or any premises where goods or articles were being sold, the conclusion, therefore, that this is a processing factory and not a place meant for sale of any article is irresistible.".
23. The question that is to be decided in this case is whether the food article in question was meant for sale or not. The evidence on record clearly indicates that it was not so, as the prosecution has not been able to establish that the food article in question was final product and was ready for sale. Therefore, in these eventualities the present case is squarely covered by the above discussed case law.
24. So far as the contention of the accused that the paper chromatography test is not a sure test, in State Vs. Subhash Chand (supra) after relying upon the case law Balmukand Singh Vs. State of Punjab 2008 Crl. L.J. 1084, leave to appeal to the petitioner was not granted. In Balmukand Singh Vs. State of Punjab (supra) it has been held that, "it would not be unsafe to conclude that paper chromatography test is not sufficient to conclude whether permitted or unpermitted coal tar dye has been used. The expert has to examine carefully the colouring matter by applying various tests by excluding the use of permitted colours, before reaching the conclusion to detect the unpermitted coal". In the present case also the the Public Analyst has applied paper chromatography test to detect the synthetic colouring matter however, the Director CFL has not mentioned the test by which he has detected the synthetic colour and since the CFL Report supersedes the report of PA there should have been clearly mentioned by which test he has detected the synthetic colour.
25. In view of law laid down in the aforesaid authorities, since there is variations in the report of PA and CFL which is beyond the permissible limit of .3 %, further the prosecution failed to establish that the sample was meant for sale and since there is certain guidelines on paper chromatography test, which has not been followed in this case by both the experts, therefore, the benefit of doubt is liable to be given to the accused. Hence, accused is acquitted from the charges leveled against him. File be consigned to record room.
Announced in the open Court (Balwant Rai Bansal)
on 11th April, 2013 ACMMII/ PHC/ New Delhi
CC No. 65/05
DA Vs. Nem Chand Jain
11.04.2013
At 3:00 PM.
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/11.04.2013