Delhi District Court
Fi vs . R.K. Kaushik Etc. Page 1 Of 19 on 6 April, 2013
IN THE COURT OF SHRI BALWANT RAI BANSAL
ADDITIONAL CHIEF METROPOLITAN MAGISTRATEII,
PATIALA HOUSE COURTS, NEW DELHI
C.C. No. 16/01
Food Inspector
Department of PFA
Govt. of NCT of Delhi
A20, Lawrence Road
Indl. Area, Delhi - 35
........ Complainant
Versus
1.) Sh. R.K.Kaushik
S/o Late Shri J.N. Kaushik,
General Manager of M/s Sanjog Banquet & Restaurant Complex,
(A unit of Porwal Hotels Pvt. Ltd.)
6 & 15 F.I.E. Patparganj Industrial Estate, Delhi92.
.....................VendorcumNominee
2.) M/s Sanjug Banquet & Restaurant Complex
(A unit of Porwal Hotels Pvt. Ltd.)
6 & 15 F.I.E. Patparganj Industrial Estate, Delhi92.
CC No.16/01
FI Vs. R.K. Kaushik Etc. Page 1 of 19
....................Vending Concern
3.) Satish Kumar
S/0 Shri Laxmi Chand
R/o 504, Jawala Nagar,
Shahdara, Delhi
...........................Supplier
COMPLAINT U/S 16 OF THE PREVENTION OF FOOD
ADULTERATION ACT, 1954
Serial number of the case : 16/01
Date of the commission of the offence : 03.07.2000
Date of filing of the complaint : 02.02.2001
Name of the Complainant, if any : Shri N.N. Sharma, Food
Inspector
Offence complained of or proved : For violation of Section 2 (ia) (a)
(b) (d) & (m) of PFA Act 1954;
punishable U/s 16 (1) (a) r/w S. 7
of PFA Act 1954.
Plea of the accused : Pleaded not guilty
Final order : Acquitted
Arguments heard on : 13.03.2013
Judgment announced on : 06.04.2013
J U D G M E N T
1. The present complaint has been filed on 02.02.2001 by the CC No.16/01 FI Vs. R.K. Kaushik Etc. Page 2 of 19 Delhi Administration through FI Sh. N.N. Sharma against the aforesaid accused persons. It is stated in the complaint that on 03.07.2000 at about 8:15 PM, FI Sh. N.N. Sharma purchased a sample of Paneer, a food article for analysis from Sh. R.K. Kaushik (General Manager), S/o Sh. Late Shri J.N. Kaushik of M/s Sanjog Banquet & Restaurant Complex (a unit of Porwal Hotels Pvt. Ltd.), 6 & 15, F.I.E. Patparganj Indl. Estate, Delhi92, who was found conducting the business at the aforesaid premises and the sample commodity was stored for use in preparation of food for human consumption. FI Sh. N.N. Sharma purchased 750 gms. of Paneer (ready for use), taken from a tray. The sample was taken after cutting with the help of dry and clean knife in dry and clean tray and mixed well under the supervision and direction of Dr. P.S. Batra, SDM/LHA (Vivek Vihar). 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 and thereafter each bottle containing the sample was separately packed, fastened and sealed according to the PFA Act and Rules. The signatures of R.K. Kaushik (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 offered to him but he did not accept. Panchnama too was prepared at the spot. All these documents CC No.16/01 FI Vs. R.K. Kaushik Etc. Page 3 of 19 prepared by FI Sh. N.N. Sharma were signed by accused Sh. R.K. Kaushik, the vendor and the other witness namely Sh. O.P.S. Ahlawat, FI. 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. O.P.S. Ahlawat, FI joined as witness.
2. It is further stated that one counterpart of the sample 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 of dried matter is less than the prescribed minimum limit of 50%".
3. It is further stated that accused Sh. R.K. Kaushik S/o Late Sh.
J.N. Kaushik was the VendorcumNominee of M/s Sanjog Banquet & Restaurant Complex and he being the incharge and Nominee of the said restaurant was responsible for the day to day conduct of the business of the said restaurant. 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) (b) (d) & (m) of the PFA Act, 1954 which is punishable U/s 16 (1) (a) r/w S. 7 of PFA Act 1954.
CC No.16/01 FI Vs. R.K. Kaushik Etc. Page 4 of 19
4. The accused R.K. Kaushik was summoned vide order dated 02.02.2001. He 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, Calcutta for analysis. The Director, CFL on analysing the second counterpart of the sample in question opined vide his Certificate dated 19.03.2001 that, "sample of paneer is adulterated".
5. Notice U/s 251 Cr.P.C. for violation of Section 2 (ia) (a) (b)
(d) & (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 R.K. Kaushik (as well as upon accused no. 2 through him) vide order dated 22.10.2001 to which he pleaded not guilty and claimed trial.
6. Thereafter, prosecution examined three witnesses namely Sh.
O.P.S. Ahlawat, Food Inspector as PW1, Sh. N.N. Sharma, Food Inspector as PW2 and Dr. P.S. Batra, the then SDM / LHA as PW3 and PE was closed vide order dated 20.09.2005.
7. It is pertinent to mention that during the course of the trial, accused Satish Kumar, S/o Shri Laxmi Chand was impleaded as an accused U/s 20 A of PFA Act vide order dated 12.07.2006.
CC No.16/01 FI Vs. R.K. Kaushik Etc. Page 5 of 19
8. Thereafter, Notice U/s 251 Cr.P.C. for violation of Section 2 (ia) (a) (b) (d) & (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 accused Satish Kumar vide order dated 05.06.2007 to which he pleaded not guilty and claimed trial.
9. Thereafter, all the aforesaid prosecution witnesses were re cross examined by accused no. 3 and finally PE was closed vide order dated 06.08.2009.
10. Statements of accused persons U/s 313 Cr.P.C. were recorded on 02.12.2009 wherein all of them claimed themselves to be innocent and opted to lead DE.
11. Accused no. 1 got examined himself in defence as DW1 and the DE was closed vide order dated 05.04.2010.
12. I have heard the Ld. Counsel for the parties and perused the record carefully.
13. From the perusal of the record, it is evident that complaint has been filed against the accused on the basis of PA's report dated 19.07.2000. The report of PA has been exhibited and proved as Ex. PW1/F and same reveals that sample does not conform to standard because 'milk fat of dried matter' is less that the prescribed minimum limit of 50%. The CC No.16/01 FI Vs. R.K. Kaushik Etc. Page 6 of 19 accused no. 1 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), Calcutta for analyzing the sample and the report thereof in the form of Certificate of the Director, CFL, Calcutta dated 19.03.2001 was received. Perusal of same shows that sample commodity was found to be adulterated.
14. Ld. Counsel for accused no. 1 & 2 has argued that the FI has not applied the proper procedure for lifting the sample. He has further argued that the FI has lifted the sample by cutting the paneer by knife but the same is nonscientific method. He has further argued that the paneer should have been cut with a cheese wire and not with the knife because whey oozed out from the paneer. He has further argued that the sample was not a representative one and therefore there are variations between the reports of PA & Director CFL. He has further argued that the prosecution has been launched much belatedly i.e. after 8 ½ months of lifting the sample and the Director CFL analysed the same on 19.03.2001 and by that time the sample could not have remained fit for analysis. He has argued that the sample was lifted of Paneer which is a perishable commodity and with the passage of time it starts to deteriorate and degradation takes place. He has further argued that even the Formalin added by the FI in the sample CC No.16/01 FI Vs. R.K. Kaushik Etc. Page 7 of 19 bottles to preserve the sample commodity is not proper method as formalin should have been put on the pieces while in tray before putting in the bottles in order to protect from degradation which takes place in the sample commodity with the passage of time. He has further argued that furthermore, accused no. 1 & 2 are protected by Warranty U/s 19(2) of PFA Act as they have purchased the sample commodity from accused no. 3. Ld. counsel for accused no. 1 & 2 has placed reliance on various case law titled as State Vs. V.K. Muttoo and Others Crl. Appeal No. 144 of 1996, Municipal Corporation of Delhi Vs. Ghisa Ram Crl. Appeal No. 194/1966, State Vs. Anil Batra and Others 2008(1) FAC 191, M/s Raja Ram Seth & Sons & Anr. Vs. Delhi Administration, 2012 (2) FAC 523 and State (Delhi Administration) Vs. Ram Singh & Ors. 2009 (1) FAC
371.
15. Ld. counsel for accused no. 3 has argued that the Bill is false and as he has not supplied the sample commodity to accused no. 1 & 2 hence, he can not be held guilty.
16. 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 a proper method CC No.16/01 FI Vs. R.K. Kaushik Etc. Page 8 of 19 of lifting the sample was adopted by the FI and therefore, all the accused are liable to be held guilty.
17. 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.
18. PW2 Sh. N.N. Sharma who is the complainant in the present case and conducted the sample proceedings has deposed in his examination inchief that on 03.07.2000 he along with FI Shri O.P.S. Ahlawat under the supervisions and directions of SDM/LHA Dr. P.S. Batra visited the premises of M/s Sanjog Banquet & Restaurant Complex (a unit of Porwal Hotels Pvt. Ltd., 6 & 15, F.I.E. Patparganj Industrial Estate, Delhi92 where accused R.K. Kaushik was found conducting the business of said restaurant having stored various food articles including Paneer used for preparation of food articles for sale for human consumption. He has further deposed that he purchased 750 gms of Paneer for analysis on payment of Rs. 47/ vide vendor's receipt Ex. PW1/A. He further deposed that sample was taken after cutting the Paneer in smallest pieces in a clean and dry tray with the help of clean and dry knife and then mixed the same with the help of same knife in the same tray and thereafter he divided the purchased sample into three equal parts by putting them in three clean and dry glass bottles. CC No.16/01 FI Vs. R.K. Kaushik Etc. Page 9 of 19 He has also deposed that 20 drops of formalin were added in each of the sample bottle and all the three sample bottles were separately packed, marked, fastened and sealed accordingly to PFA Act and Rules.
19. 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 was also prepared at the spot which is Ex. PW1/C. He further deposed that 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. 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 04.07.2000 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 04.07.2000 vide receipt Ex. PW1/E. He has further deposed that PA report is Ex. PW1/F according to which the sample does not conform to the standards.
20. PW1 Sh. O.P.S. Ahlawat who is the Food Inspector and was made a witness at the time of conducting the sample proceedings by FI Sh. N.N. Sharma has also deposed on the similar lines as deposed by PW1 in his examinationinchief.
21. PW3 Dr. P.S. Batra under whom supervision and directions, CC No.16/01 FI Vs. R.K. Kaushik Etc. Page 10 of 19 the sample proceedings were conducted has corroborated the version of PW1 and PW2 in his examinationinchief.
22. In the crossexamination PW1 affirmed the suggestion that no butter paper was used for cutting the paneer into smallest pieces. He deposed that the paneer was cut in neat and clean steel tray. He has further deposed that pieces were put in the sample bottles with the help of the knife. He denied the suggestion that cutting the paneer with the knife was a crude and improper method and that the proper method was to cut the paneer with a cheese wire. He has further denied the suggestion that if the paneer is spongy the whole formalin will be absorbed by the upper layer and will not reach at the bottom of paneer. He has further denied the suggestion that unless and until it is macerated, formalin will not be uniformly distributed. He could not comment that formalin can not preserve panner for more than 4 months. He further could not comment about the shelf life of paneer. He further could not comment that the paneer is manufactured by coagulating with acedice medium. He affirmed the suggestion that paneer is a perishable commodity. He could not comment that what will be the extent of margin in two samples if the same are representative. He further deposed that he has no knowledge if due to degradation due to presence of engime and engimatic action degradation of CC No.16/01 FI Vs. R.K. Kaushik Etc. Page 11 of 19 fat is place with the passage of time resulting in the fall of fat content.
23. PW2 in his crossexamination has denied the suggestion that the method of cutting paneer with the help of knife is crude and improper method. He could not comment that paneer contains lipase engime. He further could not comment that formalin controls only bacteria and engime activity continues which due to lipolytic action results in the degradation of fat contents and the percentage of fat will go down. He further could not comment about the shelf life of paneer. He denied the suggestion that he deliberately delayed the investigation to frustrate the right of accused U/s 13(2) of PFA Act. He affirmed the suggestion that the name of supplier was not informed at the spot or till filing of the complaint. He has further affirmed that documents Mark F,C,E & B were not given at the spot.
24. PW3 in his crossexamination could not comment whether the formalin can preserve the paneer for a period of 4 months only. He also could not comment whether the water / whey from the paneer was also added to the sample bottles after cutting the paneer in the sample bottles. He further deposed that as to his memory there was no water. He affirmed the suggestion that if it is a representative sample, then the results of the analysis may be similar. He could not comment that cutting of paneer with knife is crude and non scientific method.
CC No.16/01 FI Vs. R.K. Kaushik Etc. Page 12 of 19
25. In the statement U/s 313 Cr.P.C, the accused R.K. Kaushik has admitted that on 03.07.2000 at about 8:15 PM, FI Shri N.N. Sharma alongwith FI shri O.P.S. Ahlawat, under the supervision of SDM / LHA Shri P.S. Batra had visited at his business premises i.e. M/s Sanjog Banquet and Restaurant Complex (a unit of Porwal Hotels Pvt. Ltd) and where he was found conducting the business of the aforesaid unit having stored there food articles for sale for human consumption including paneer. He has affirmed that FI Shri N.N. Sharma had disclosed his identity to him and showed the intention to purchase the sample of Paneer. He has taken a defence that no efforts were made by the FI to join independent public witnesses. He has affirmed that FI Shri N.N. Sharma had purchased 750 gms of Paneer from an open tray, bearing no label or declaration and an amount of Rs. 47/ was offerred to him but he refused to accept the same by saying that paneer was not for sale as such but was ready for use in preparation of food articles. He has taken a defence that the method adopted by the FI was non scientific because on cutting the paneer with the knife, whey oozed out from the paneer which was not poured into the sample bottles. He has also taken a defence that the delay in analysis frustrated his right under section 13(2) of the Act as the formalin can not preserve the sample for more than four months if kept under refrigeration condition. He CC No.16/01 FI Vs. R.K. Kaushik Etc. Page 13 of 19 has also taken a defence that he had properly stored the paneer and sample was lifted by the FI in the same condition in which it was supplied to him by the supplier.
26. In the Statement U/s 313 Cr. P.C. accused Satish Kumar has taken a defence that he does not know about lifting of the sample and has not supplied the paneer at the time of sampling. He has also taken a defence that the agreement is an anti dated as the accused no. 1 approached him to supply the paneer in the year 2001 and obtained his signatures on the Agreement. He has also taken a defence that accused no. 1 did not disclose at the time of sampling that the sample commodity has been purchased from him. He has also stated that he never issued any bill to anybody. He has also taken a defence that the accused no. 1 got printed the bill book himself and still bill book is lying with the accused no. 1 & 2 and they had obtained his signature on blank bills. He has stated that he has no bill book with him of any transaction.
27. From the aforesaid crossexamination of PWs, the defence of the accused persons appears to be that the prosecution was launched much belatedly and thus their right to get analyzed the sample from Central Food Laboratory stood frustrated and that the sample commodity taken by the FI Sh. N.N. Sharma was not representative one and method of lifting the CC No.16/01 FI Vs. R.K. Kaushik Etc. Page 14 of 19 sample was not correct and, therefore there is huge variations in the reports of both the experts i.e. Public Analyst & Central Food Laboratory.
28. In State Vs V.K. Mutto and others 2008(1) FAC 320 has been observed that, "present case has been instituted after a great delay without any just reason or sufficient cause thereby depriving the accused of their right U/s 13(2) as it has been stated by various experts that food articles with milk and milk products are perishable in nature even if formalin is added and chemical changes are bound to occur and fat and fatty acid contents are bound to decreases with the passage of time.". Similarly in Municipal Corporation of Delhi Vs. Ghisa Ram (supra) it has been held that, " when a valuable right is conferred by section 13(2) of the Act on the vendor to have the sample given to him analyzed by the Director of the Central Fod Laboratory, it is to be expected that the prosecution will proceed in such a manner that that right will not be denied to him. The right is a valuable one, because the Certificate of the Director supersedes the report of the Public Analyst and is treated as conclusive evidence of its contents.". Similarly in State Vs. Anil Batra and Others it has been held that, "there has been a marginal deficiency in the milk fat contents on dry matter basis which can be attributed to delay in analyzing the 3rd counterpart of the sample, as the Director CFL Mysore could CC No.16/01 FI Vs. R.K. Kaushik Etc. Page 15 of 19 analysed the sample only after expiry of more than six months of the taking of the sample."
29. In the present case, admittedly the sample was lifted on 03.07.2000 for analysis and same was got analyzed by Director, CFL on 19.03.2001 i.e. after about more than 8 ½ months from the date of lifting the sample, therefore, in view of law laid down in the aforesaid authorities, there appears to be substance in the contention of the accused that during the aforesaid period, the sample commodity could not have remained fit for analysis and, therefore, the analysis results of Director CFL would not depict the correct findings. This fact also find support as there are variation in both the reports so far as 'milk fat of dry matter' is concerned. In PA's Report Ex. PW 1/F, milk fat of dry matter is to the tune of 36.56% whereas, the Director CFL vide his certificate dated 19.03.2001 found the same to the tune of 27.3% and as such there are variation upto 9.26% which is much higher than 0.3%, which is stated to be the permissible limit of variation. 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 a representative one 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 CC No.16/01 FI Vs. R.K. Kaushik Etc. Page 16 of 19 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.
30. It is pertinent to mention herein that the sample commodity in question is a perishable item and the shelf life of the same even after adding Formalin therein is about maximum 4 months. In this case admittedly the sample was lifted on 03.07.2000 and the case was filed in the court on 02.02.2001 and the second counterpart of the sample was got analyzed from Central Food Laboratory on 19.03.2001 (i.e. after more than 8 ½ months from lifting of the sample) and by that time the paneer being a perishable in nature and shelf life of the paneer is about 4 months and therefore by the time the sample was analyzed by the CFL, it must have deteriorated and with the passage of time its fat contents is lost hence, the accused is entitled for benefit of doubt on account of delay in filing the complaint by the prosecution. Reliance may be placed on Gian Chand Vs. The State in which it is held by the Hon'ble Delhi High Court that, "Normally the CC No.16/01 FI Vs. R.K. Kaushik Etc. Page 17 of 19 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 refrigerator." .
31. So far as the contention of accused no. 1 & 2 that they are protected from the Warranty as they have purchased the sample commodity from accused no. 3 and sold in the same condition as purchased by them, is concerned though the accused no. 3 has disputed that the sample commodity was supplied vide bill produced by accused no. 1 & 2 but in the crossexamination accused no. 3 could not bring out anything from the evidence of PWs. Even the DW1 (i.e. accused no. 1 himself) has stated in his examination in chief that in the year 2000, he was General Manager of Sanjog Banquet & Restaurant Complex and had entered into an agreement with accused no.3 from 01.04.2000 to 31.03.2001 and through various bills and vouchers Ex. DW 1/A he had purchased the sample commodity from accused no. 3. In the crossexamination nothing material could be extracted and therefore, there is no merit of contention of accused no. 3 that the bill is false or fabricated. In the crossexamination of DW1, accused no. 3 has put a specific suggestion that they obtained his signatures on false pretext that they will regularly purchase paneer from him and later on prepared all CC No.16/01 FI Vs. R.K. Kaushik Etc. Page 18 of 19 the vouchers, meaning thereby that accused no. 3 does not dispute the agreement between accused no. 1 & 2 and 3 on the other hand. Therefore, the contention of accused no. 3 that the bills produced by accused no. 1 & 2 are forged and fabricated not tenable and accused no. 1 & 2 have been able to prove that the paneer / sample commodity was purchased from accused no. 3.
32. However, taking into consideration the variations which are much higher than the permissible limit and the point of delay in filing the complaint due to which the right of the accused to get correct analysis from CFL stood frustrated, all accused are given the benefit of doubt and accordingly, they are acquitted of the charges leveled against them. File be consigned to Record Room.
Announced in the open Court (Balwant Rai Bansal)
on 6th April, 2013 ACMMII/ PHC/ New Delhi
CC No.16/01
FI Vs. R.K. Kaushik Etc. Page 19 of 19
CC No. 16/01
DA Vs. R.K. Kaushik
06.04.2013
Present: Sh. Masood Ahmad, Ld. SPP for complainant.
Accused no. 1 (representing accused no. 2 as well) is present with Counsel, Shri M.L. Alawadhi.
Accused no. 3 with Counsel, Shri M.K. Sharma.
Vide my separate Judgment of even date dictated and announced in the open court, all accused stand acquitted of the charges leveled against them. Their previous bail bond / surety bond stand cancelled. Sureties stand discharged. Endorsement on the documents of the previous sureties, if any, be cancelled.
All accused are directed to furnish fresh bail bonds in compliance of Section 437A Cr.P.C. They have furnished fresh B/Bs & S/Bs in the sum of Rs. 15,000/ each. The same are accepted.
File be consigned to Record Room.
(Balwant Rai Bansal) ACMMII/PHC/ND/06.04.2013 CC No.16/01 FI Vs. R.K. Kaushik Etc. Page 20 of 19