Delhi District Court
Delhi Administration / Food Inspector vs Mahesh Kumar on 7 September, 2016
IN THE COURT OF SH. ASHU GARG,
Addl. Chief Metropolitan Magistrate - II (New Delhi),
Patiala House Courts, New Delhi
CC No. 165/10 (47514/16)
Unique Case ID No. 02403R0319022010
Date of Institution: 24.11.2010
Date of reserving judgement: 07.09.2016
Date of pronouncement: 07.09.2016
In re:
Delhi Administration / Food Inspector
Department of PFA,
Govt. of NCT of Delhi
A-20, Lawrence Road Industrial Area,
Delhi-110035 ... Complainant
versus
Mahesh Kumar
S/o. Late Sh. Khushi Ram
R/o. B-5/78,
Sector - 8, Rohini,
Delhi - 110085 ... Accused
JUDGMENT:
1. The present is a complaint filed under section 16 of the Prevention of Food Adulteration Act, 1954 (PFA Act), alleging that the accused has violated the provisions of the PFA Act and Rules. The accused Mahesh Kumar is stated to be the vendor-cum-proprietor of M/s. Mahesh Store, CC No. 165/10 Page 1 of 11 from where the food article, that is, 'Safed Jeera Whole' was lifted for sampling.
2. As per the complaint, on 18.09.2010, the food officials consisting of Food Inspector (FI) Virender Singh and Field Assistant (FA) S. N. Jindal under the supervision of Local Health Authority (LHA)/SDM Sh. Ajay Kumar reached along with their staff at the premises of M/s. Mahesh Store at A-3/129, Sector-17, Rohini, Delhi where the accused was found conducting the business of various food articles, which were lying stored/exposed for sale for human consumption. The FI disclosed his identity and expressed his intention to purchase a sample of Safed Jeera Whole from the vendor that was lying in open gunny bag bearing no label declaration, to which he agreed. The sample was then lifted as per procedure prescribed under the PFA Act and Rules. Each sample was separately packed, fastened, marked and sealed and necessary documents were prepared at the spot, including the Notice as per Form-VI, panchnama. The price of sample was paid to the vendor. Thereafter, one counterpart of the sample was sent to the Public Analyst (PA) in intact condition and the other two counterparts were deposited with SDM/LHA. Vide report dated 08.10.2010, the PA found the sample to be adulterated on the ground that it was infested with living insects and was not free from rodent contamination. Upon receipt of report, the SDM/LHA ordered investigation which was carried out by FI. After completion of investigation, sanction under section 20 of the PFA Act was obtained from the Director PFA. The complaint was then filed in the court on 24.11.2010 alleging violation of section 2(ia)(e), (f) and (l) of PFA Act, as punishable CC No. 165/10 Page 2 of 11 section 7/16(1A) of PFA Act. It was also alleged that the accused had violated section 14A of PFA Act as punishable under section 16(1C)of the Act.
3. As the complaint was filed in writing by a public servant, recording of pre-summoning evidence was dispensed with and the accused was summoned vide order dated 24.11.2010. The accused appeared and filed an application under section 13(2) of PFA Act thereby exercising his right to get the second counterpart of the sample to be analysed from Central Food Laboratory (CFL). The application was allowed and a counterpart was sent for analysis to CFL. The CFL examined the sample and its Director gave Certificate dated 05.01.2011, opining the sample to be not conforming to the PFA Rules due to presence of moisture more than the prescribed maximum limit and presence of non volatile ether extract to be less than the prescribed minimum limit.
4. Based on the report of CFL, notice under section 251 CrPC was framed against the accused on 29.03.2011 for commission of the offence punishable under section 7/16(1)(a) PFA Act, being violation of section 2(ia)(a) and (m) of PFA Act, to which he pleaded not guilty and claimed trial.
5. At the trial, prosecution examined three witnesses in support of its case. PW-1 Sh. Ajay Kumar (SDM/LHA), PW-2 FI Virender Singh and PW-3 FA S. N. Jindal were part of the team that had visited the spot for sample proceedings. All these witnesses deposed about the proceedings CC No. 165/10 Page 3 of 11 conducted by them on 18.09.2010 and narrated the steps undertaken by them during the sample proceedings, including disclosing their identity, expressing intention to purchase sample for analysis, lifting the sample of 1500 gram of Safed Jeera Whole, mixing/homogenizing it using a clean and dry jhaba, dividing it in three parts and putting in clean and dry bottles, fastening, sealing, marking the sample bottles, and obtaining signatures of vendor and witnesses. They also proved the necessary documents including the vendor's receipt Ex. PW-1/A, Notice Form-VI Ex. PW-1/B, Panchnama Ex. PW-1/C, Raid report Ex. PW-1/D, Statement of accused Ex. PW1/E, PA Receipt Ex. PW-2/A and LHA receipt Ex. PW- 1/F. PA report Ex. PW-1/G was received and investigation was conducted. After completion of investigation, sanction Ex. PW-1/H was obtained from the Director PFA. The complaint Ex. PW-1/I was filed in the court. A copy of PA report with intimation letter Ex. PW-1/J was sent to the accused vide postal receipt Ex.PW-1/K. These witnesses were duly cross- examined by Ld. Defence Counsel wherein they denied that the sampling method was not proper or that the accused had been falsely implicated.
6. Statement of the accused under section 313 CrPC was recorded on 07.05.2013 wherein he denied the allegations and pleaded innocence. Though he admitted the proceedings dated 18.09.2010, yet he asserted that the samples were not taken properly. He questioned the correctness and reliability of reports of PA and CFL. He chose not to lead evidence in defence.
CC No. 165/10 Page 4 of 117. It is in these circumstances, Ld. SPP for the complainant has argued that the complainant has been able to establish its case against the accused beyond reasonable doubt, on the ground that the accused has not been able to rebut the findings in the CFL report dated 05.01.2011 which as per section 13(3) of PFA Act is final and conclusive. It is submitted that all the witnesses have supported its case and no major contradiction can be seen in their testimony.
8. On the other hand, Ld. Defence Counsel has submitted that the sample proceedings were not conducted properly and that there are various missing links in the testimony of witnesses. Ld. Counsel has strongly contended that there is variation in the reports as given by PA and CFL, which leads to conclusion that the two samples were not representative and therefore, conviction cannot be based solely on the basis of the CFL report. He has relied upon the various judgements in his support.
9. I have heard the arguments advanced by Ld. SPP for the complainant and Ld. Defence Counsel for the accused and have carefully perused the material available on record.
10. It is to be understood that the notice framed against the accused is for violation of section 2(ia)(a) and (m) of the PFA Act on the basis of CFL report. Under section 2(ia)(a) of PFA Act, the prosecution has to establish that the purchaser had demanded a food article of a specific nature, substance or quality and the article sold was, to his prejudice, either not of the nature, substance or quality demanded, or was not of the CC No. 165/10 Page 5 of 11 nature, substance or quality which it purported or represented to be. On the other hand, section 2(ia)(m) of PFA Act deals with situation where the quality or purity of an article falls below the prescribed standard or its constituents are present in quantities not within the prescribed limits of variability.
11. In the case at hand, it is an admitted position, as is clear from both the reports of PA and CFL that the food article fell under Item A.05.09 of Appendix-B of the PFA Rules. Specific standards have been prescribed for Safed Jeera Whole (Cumin Whole) under this provision.
12. As per section 13(3) of the PFA Act, the certificate issued by the Director of CFL shall supersede the report of the PA. As per proviso to section 13(5) of the Act, such certificate shall be final and conclusive evidence for the facts stated therein. Thus, as far as the findings of the CFL are concerned, the same are final and conclusive and no evidence can be given to disprove the same.
13. In Calcutta Municipal Corporation v. Pawan Kumar Saraf [AIR 1999 SC 738], it has been authoritatively laid down that the legal impact of a certificate of the Director of CFL is three fold: (a) it annuls or replaces the report of the PA, (b) it gains finality regarding the quality and standard of the food article involved in the case and (c) it becomes irrefutable so far as the facts stated therein are concerned.
CC No. 165/10 Page 6 of 1114. In Subhash Chander v. State, Delhi Administration [1983(4) DRJ 100], it was observed by Hon'ble High Court of Delhi that "It has repeatedly been held by the supreme court that the certificate of the Director supersedes the report of the public analyst and is to be treated as conclusive evidence of its contents. The Director is a greater expert and therefore the statute says that his certificate shall be accepted by the court as conclusive evidence. For all purposes the report of the public analyst is replaced by the certificate of the Director.... Superseded is a strong word. It means obliterate, set aside, annul, replace, make void, inefficacious or useless, repeal. The Director's certificate supersedes the report given by the public analyst. Once superseded it does not survive for any purpose. It will be anomalous to hold that for some purpose it survives and for other purposes it is superseded."
15. Since the report of CFL is final and conclusive and the same supersedes the report of PA, only this report has to be considered and the report of PA has to be ignored. However, the defence strongly relies upon the judgement titled as Kanshi Nath v. State [2005(2) FAC 219], informing that the said ruling has been constantly followed by the Hon'ble High Court of Delhi in State v. Ramesh Chand [2010 (2) JCC 1250], Food Inspector v. Parvinder Malik [2014(2) FAC 306], State v. Vinod Kumar Gupta [2010(2) JCC 957], State v. Virender Kohli [2014(2) FAC 223], State v. Kamal Aggarwal [2014(2) FAC 183], State v. Vidya Gupta [2014(1) FAC 291], State v. Dinesh Goswami [2014(1) FAC 302], State v. Mahabir [2014(1) FAC 286], State v. Santosh Sharma [2014(1) FAC 296], Raja Ram Seth & Sons v. Delhi Administration CC No. 165/10 Page 7 of 11 [2012(2) FAC 523], State v. Sunil Dutt [2011(4) JCC 2377] and State v. Rama Rattan Malhotra [2012(2) FAC 398]. It is submitted that comparison of the two reports would show that there are substantive variations which would show that the sample was not representative.
16. The Hon'ble High Court of Delhi in Kashi Nath's case (supra), was dealing with a situation where there were certain variations in the reports of PA and CFL while analysing a sample of 'dhania powder'. Hon'ble Court considered the ratio in MCD v. Bishan Sarup [ILR 1970 (1) Delhi 518] and held that it would still be open for the accused to establish that the sample tested was not a representative one, and if the variation in the two reports is substantial enough, then the PA report can certainly be looked into to establish this variation.
17. Therefore, it can be safely said that though the CFL report is final and conclusive as to the results therein, yet it can still be looked into to ascertain if the samples were representative or not. If the accused is able to show that the samples were not representative or otherwise that the food article might have undergone a change by the time it reached CFL which was beyond his control, he would get benefit on that count.
18. Well, the differences between the two reports would show substantive variations in the two reports. The PA detected presence of 11 living insects and one rodent excreta but no such presence was noticed in CFL report. It is therefore seen that the CFL report negated the report of PA on the sole incriminating parameter as to the presence of insect infestation and rodent contamination, on which the sample was failed and CC No. 165/10 Page 8 of 11 on the basis of which the prosecution was launched. As far as presence of living (or even dead) insects is concerned, there could not have been much change in the same irrespective of considerable passage of time. Rather, with the passage of time, number of such insects would have certainly increased and not vanished from the article. In addition thereto, there would be more rodent excreta, insect damaged matter and uric acid in the sample. But no such contamination has been noticed by the CFL. But since the CFL report supersedes the PA report, it has to be held that there was no insect infestation in the sample.
19. The CFL report on the other hand shows presence of moisture upto 11.11% (which is beyond the prescribed maximum limit of 10.0%) and non volatile ether extract to be 12.62% (which is less than the prescribed minimum limit of 15.0%). It is important to understand that where the quality or purity of an article has fallen below the prescribed standards due to natural causes and beyond the control of human agency, then such article cannot be said to be adulterated. The CFL had examined the sample from 28.12.2010 to 05.01.2011. Thus, it was so analysed after about 4 months when it was lifted from the possession of the accused. The nature of such food grains is such that some changes are bound to happen if sample is kept for a long period. The effect of temperature, external environment, internal heat etc. cannot be ignored on such article, particularly when no preservative as such was used in the sample.
20. It is noted that the moisture was found to be 9.62% by the PA (which was within the prescribed maximum limit of 10.0%). Similarly, CC No. 165/10 Page 9 of 11 the non volatile ether extract was found to be 17.66% by the PA (which was well beyond the prescribed minimum limit of 15.0%).
21. Changes in moisture content and change in volatile and non volatile content would be covered under natural changes. During the intervening period of 4 months, the possibility of such natural changes cannot be ruled out. And if not, it would lead to inference that the product was not properly homogenized so as to evenly distribute the ingredients. If the product was properly homogenized, there was no scope of such substantive variation in the two reports. The burden would be on prosecution to rule out possibility of natural changes before the accused can be convicted, particularly in view of such substantive variations in the two reports. The only conclusion would be that either the sample was not truly representative or otherwise it underwent a natural change during the intervening period which was beyond human control. In any case, the accused would get a benefit of doubt.
22. Thus, the matter would not be covered under section 2(ia)(a) of PFA Act. There is no evidence to show that any particular nature, quality or substance of Safed Jeera Whole was demanded by the FI which was not supplied to him to his prejudice, or that it was not of nature, quality or substance represented or purported to be so as to bring the case within section 2(ia)(a).
23. As far as section 2(ia)(m) is concerned, considering the time gap, natural variations and variations in two reports, the accused is entitled to CC No. 165/10 Page 10 of 11 be given benefit of doubt. The evidence on record is not sufficient to conclude that the sample in question was 'adulterated' within the meaning of section 2(ia) of PFA Act and thus, no case would be made out against the accused for commission of offences punishable under section 7/16 of the PFA Act.
24. Having said so, the accused is acquitted of the charges. However, his bail bonds shall remain in force for the next six months in terms of section 437-A. CrPC.
25. File be consigned to record room.
Announced in the open court this 07th day of September 2016 ASHU GARG ACMM-II (New Delhi), PHC CC No. 165/10 Page 11 of 11