Delhi District Court
S. S. Brar & Ors vs The State (Delhi Administration) on 27 February, 2012
-1-
IN THE COURT OF MS. NEENA BANSAL KRISHNA :
ADDITIONAL SESSIONS JUDGE-01 : NEW DELHI
In re :
CA No. 29/11
S. S. Brar & Ors.
S. S. Brar Nominee of
M/s Suraj Solvent & Vanaspati Industries Ltd.
O/o M/s Suraj Solvent & Vanaspati Industries Ltd.
Village Khippanwalli, Tehsil Fazilka,
Distt. Ferozpur, Punjab. ..... Petitioner
versus
The State (Delhi Administration)
P.F.A Deptt., A-20, Lawrence Road,
Indl. Area, Delhi. ..... Respondent
Date of institution of the appeal : 23.04.2011
Date of reserving judgment/order : 04.02.2012
Date of judgment / order : 27.02.2012
JUDGEMENT :
1. This appeal u/s 374 Code of Criminal Procedure has been preferred against the judgment dated 13.12.2010 and order on sentence dated 22.03.2011 of Shri Raghubir Singh, Ld. ACMM-II, New Delhi, in complaint case no. 11/99, vide which the appellant has been convicted for offences punishable u/s 16 (1A) r/w Section 7 of Prevention of Food Adulteration Act, 1954 (hereinafter referred to as the Act ) and sentenced S. S. Brar (Nominee of M/s Suraj Solvent & CA No. 29/11 Page No. 1 of 8 -2- Vanaspati Industries Ltd.) to undergo rigorous imprisonment for one year and to pay a fine of Rs.10,000/-, in default to undergo further simple imprisonment for 15 days; And sentencing M/s Suraj Solvent & Vanaspati Industries Ltd for a fine of Rs. 1,00,000/-.
2. The facts as contained in the complaint filed by the PFA Department through Food Inspector Sh. C. B. Boora are that on 04.09.1998 at about 03.45 p.m Food Inspector C. B. Boora purchased a sample of "Vanaspati (Rath Brand)", from Radhey Lal, where the article was found stored for sale for human consumption. One sample was sent for testing to Public Analyst, who found the sample to be "not conforming to standards laid down under Item No. A.19 of Appendix 'B' of PFA Rules, 1955 because sample showed presence of Argemone Oil".
3. After completion of the investigation, complaint was filed and the accused was summoned, who exercised his right u/s 13 (2) of PFA Act and accordingly counterpart sample was sent to Director, CFL, who gave his report dated 10.05.1999 that "the sample of Rath Vanaspati is adulterated".
4. The charges for the violation of provisions of S.2 (ia)(a)(b)(c)(f)(h) & (l) of the Act of 1954 punishable u/s 16 (1A) r/w Section 7 of PFA Act was framed upon the accused vide order dated 10.01.2009, to which they pleaded not guilty and claimed trial.
5. After consideration of the testimony of the three CA No. 29/11 Page No. 2 of 8 -3- prosecution witnesses and the three defence witnesses, the Ld. Trial Court vide its judgment dated 13.12.2010 concluded that the accused were guilty of the offences alleged against them and accordingly sentenced them vide order dated 22.03.2011.
6. The main arguments addressed on behalf of the appellants are that both the Public Analyst report and the Director, CFL report have reported the same to be adulterated on account of the presence of Argemone Oil. However, the notification banning the presence of Argemone Oil in Rath Vanaspati came only on 11.12.2001, while, the sample in the present case was taken on 04.09.1998 on which date the said standard was not in existence. Furthermore, no percentage of Argemone Oil has been given in both the reports. As per "Modi's Medical Jurisprudence and Toxicology", about 1% of Argemone Oil as an adulterant is necessary to produce clinical epidemic dropsy, in fact, in small percentage of Argemone Oil is used in medicines and per se presence of Argemone Oil is not injurious to health and thus, it cannot be said that the sample was adulterated. Furthermore, the TLC test as prescribed by DGHS was not in existence till 16.09.1998, but it was paper chromatography test which was being used to detect the presence of Argemone Oil. However, it has been held consistently that the paper chromatography test is not a sure test and thus, it cannot be relied upon for detection of Argemone Oil. It was thus, argued that the appellants are entitled to be acquitted.
7. Ld. Special PP on behalf of the Department has CA No. 29/11 Page No. 3 of 8 -4- argued that the presence of Argemone Oil per se is injurious to health and thus, the Ld. Tiral Court has rightly concluded that the sample of Rath Vanaspati was adulterated. There is no ground for interfering with the impugned judgment and sentence.
8. I have heard the arguments and have perused the record and the evidence led therein. My observations are as under :
9. The standard for Vanaspati has been laid down in Item No. A.19 of the PFA Rules, 1955. Vanaspati means any refined edible vegetable oil or oils subjected to a process of Hydrogenation in any form. It shall be prepared by Hydrogenation from ground-nut oil, cotton-seed oil and se same oil or mixture thereof or any other harmless vegetable oils allowed by the Government for this purpose.
10. It is not in dispute that the sample of the oil was taken by the Inspector on 04.09.1998 and in both the Public Analyst report and the Director, CFL report the Argemone Oil has been found to be present.
11. The other fact which needs to be highlighted is that absence of Argemone Oil from Rath Vanaspati as a standard came into force w.e.f. 11.12.2001 vide the Notification of the Central Government. Before the said date the standard prescribed under Item A.19 of PFA Rules did not prescribe that the presence of Argemone Oil should be negative. The sample has been taken in the year 1998 when the said prescribed standard was not in existence. Therefore, the CA No. 29/11 Page No. 4 of 8 -5- percentage of Argemone Oil to determine whether it was injurious to health was essential.
12. As per the prescribed standards, what is to be thus considered is (1) whether Argemone Oil qualified as an edible vegetable oil or (2) any harmless vegetable oil. In Modi's Medical Jurisprudence and Toxicology it has been provided that about percentage of Argemone Oil as an adulterant is necessary to produce clinical epidemic dropsy. It is, therefore, necessary that percentage of Argemone Oil should have been indicated in the report to assess if its presence was injuries or harmful.
13. This aspect was analyzed by Hon'ble Delhi High Court in the case of "Khushi Ram v. The State and Anr., 1984 (II) FAC 256". In Khushi Ram's case sample was of "Bari Ilaichi" and the sample was held to be adulterated on account of presence of mineral oil as reported by the Public Analyst as the standard for "Bari Ilaichi" as provided at A. 05.04.02 specified that article should be free from added colouring matter. It was observed that though the report of the Director, test for mineral oil was stated to be positive but it nowhere gave the quantity, weight or proportion by way of percentage of the mineral oil present in the sample "Bari Ilaichi". In the absence of quantity, weight and proportion, it was possible that the presence of mineral oil in the sample may be just negligible so as to cause no prejudice to the purchaser as contemplated in Section 2 (ia) (a) of the Act nor was there any evidence whatsoever to show that the presence CA No. 29/11 Page No. 5 of 8 -6- of mineral oil in the sample could affect injuriously the nature, substance or quality of the sample of "Bari Ilaichi" as contemplated in Section 2(ia) (b) of the Act. It was, therefore, held that in the absence of any evidence in regard to the prejudice or injurious affect of the presence of mineral oil on the sample, the petitioner was entitled to be exonerated.
14. The Khushi Ram's case was relied upon in recent judgment by Hon'ble Delhi High Court in the matter of "State v. Dwarka Dass, 2007 (1) FAC 229". It was a case in regard to the presence of mineral oil in the sample of "Kali Mirchi". After making a reference to the case of Khushi Ram and observing that there was no evidence to show the prejudice or the injury that could be caused to the purchaser on account of presence of mineral oil in "Kali Mirchi", the petitioner was acquitted.
15. It is, therefore, evident from the afore mentioned cases that in order to hold the presence of Argemone Oil to be an adulterant its percentage had to be established to determine if it was injurious to health or harmful. Since the percentage in which Argemone Oil was present has not been given, simplicitor presence of this oil would not make the sample of Rath Vanaspati to be adulterated.
16. Since no said percentage has been specified and the Notification in regard to the absence of Argemone Oil has come into existence on 11.12.2001, simplicitor presence of Argemone Oil cannot be in itself sufficient to held that the sample was adulterated.
CA No. 29/11 Page No. 6 of 8 -7-17. In view of the above discussion, the appeal is hereby allowed. Conviction is hereby set aside and the appellants are acquitted. Bail-bonds and surety bonds stand discharged.
18. Trial Court Record be sent back alongwith the copy of this order.
19. Appeal file be consigned to the Record Room. Announced in the open Court on this 27st Day of February,2012.
(Neena Bansal Krishna) ASJ-01/PHC/New Delhi CA No. 29/11 Page No. 7 of 8 -8- It is also worthwhile to refer that the Thin Layer Chromatography (TLC) Test for detection of presence of Argemone Oil had been prescribed by Director General of Health Services came to be recommended by BIS only on 22.09.1999 and before that it was a Circular Paper Chromatography method (CPC) it was being used for detection of Argemone Oil. The credibility of this test had been challenged before the High Court of Chandigarh in the matter of ....................................................................... wherein it was held that this test was unreliable as the florescence points stops were not specific for Argemone Oil only.
The sample had been tested in the year 1998 at which time the test being used for detection of Argemone Oil was CPC which had been held to not credible in the case of .............. ....................................................... .....................
On account of uncertainty of the test used for detection of Argemone Oil is also a ground which creates a doubt about the sample of Rath Vanaspati being adulterated and the benefits of which goes to the appellants.
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