Delhi District Court
Da vs Surinder Kumar Rajput Etc on 26 March, 2018
IN THE COURT OF SAMAR VISHAL,
Additional Chief Metropolitan Magistrate - II (New Delhi),
Patiala House Courts, New Delhi
CC No. 41185/2016
Date of Institution : 26.06.2003
Date of reserving judgement : 26.03.2018
Date of pronouncement : 26.03.2018
In re:
Delhi Administration / Food Inspector
Department of PFA,
Govt. of NCT of Delhi
A-20, Lawrence Road Industrial Area,
Delhi-110035 ... Complainant
versus
A-1) Sh. Surinder Kumar Rajput
S/o Sh Gulab Singh
M/s DV8 Enterprises Pvt Ltd.,
13, Regal Building, Connaught Place,
New Delhi - 110001.
A-2) M/s DV8 Enterprises Pvt Ltd.
13, Regal Building, Connaught Place,
New Delhi - 110001.
A-3) Sh Sukhdev Singh Majithia
M/s DV8 Enterprises Pvt Ltd.,
13, Regal Building, Connaught Place,
New Delhi - 110001.
A-4) Mrs. Ameera Majithia
M/s DV8 Enterprises Pvt Ltd.,
13, Regal Building, Connaught Place,
New Delhi - 110001.
R/o Flat No. 9, Apartment-C, Anand Lok,
New Delhi
[Discharged vide order dated 17.09.2009]
CC No. 41185/2016 Page No. 1/14
DA vs Surinder Kumar Rajput etc
A-5) Mrs. Gurpreet Majithia
M/s DV8 Enterprises Pvt Ltd.,
13, Regal Building, Connaught Place,
New Delhi - 110001.
R/o Flat No. 9, Apartment-C, Anand Lok,
New Delhi
[Discharged vide order dated 17.09.2009]
A-6) M/s Nagpal & Sons
548-49, Lahori Gate,
Naya Bazar, Delhi.
[Discharged vide order dated 17.09.2009]
A-7) Sh Mukesh
M/s Nagpal & Sons
548-49, Lahori Gate,
Naya Bazar, Delhi.
[Discharged vide order dated 17.09.2009]
A-8) Sewa Ram
S/o Sh Sacchal Mal
M/s Swami Savanand Grah Udyog,
55/583, Mama Ka Bazar,
Gwalior (MP) 474001 ... Accused person.
JUDGMENT:
1. The present is a complaint filed under section 16 of the Prevention of Food Adulteration Act, 1954 (herein after referred to as PFA Act), alleging that the accused persons have violated the provisions of the PFA Act and Rules.
2. As per the complaint, on 04.04.2001, the Food Inspector (herein after referred to as FI) Sh Suniti Kumar, and Field Assistant (herein after referred to as FA) Shri Shivji Mehto under the supervision of Local Health Authority (herein after referred to as LHA)/SDM) Sh Manoj Aggarwal visited the premises of M/s DV8 CC No. 41185/2016 Page No. 2/14 DA vs Surinder Kumar Rajput etc Enterprises, 13, Regal Building, Connaught Place, New Delhi, where the accused No. 1 Surinder Kumar Rajput was found conducting the business of above said restaurant, where various food articles including Refined Soyabean Oil were found stored for preparation of food items, for human consumption. The Food Inspector disclosed his identity and expressed his intention to purchase a sample of Refined Soyabean Oil from the vendor for analysis. The sample consisted of 375 gms of Refined Soyabean Oil (ready for use) taken from a sealed tin having label declaration. The sample was taken under the supervision / direction of SDM/LHA Sh Manoj Aggarwal. The FI divided the sample of the article of food into three equal parts by putting them in three separate clean and dry bottles. Each bottle containing the sample was separately, fastened, marked and sealed according to PFA Act & Rules. The vendor's signature were obtained on the LHA slip and the wrapper of the sample bottles. Notice was given to the accused No.1 Surinder Kumar Rajput and the price of the sample was also given to him vide receipt dated 04.04.2001. Panchanama was prepared at the spot. All the documents prepared by Food Inspector were signed by the accused No. 1 Surinder Kumar Rajput and other witness FI Sh R.K. Bhaskar. Before taking sample proceeding efforts were made to join public witnesses but none came forward and then FI Sh R.K. Bhaskar was joined as witness.
3. One counterpart of the sample bearing LHA Code MA/LHA/3518 was also sent to Public Analyst, Delhi in intact condition and two counter-parts of the sample were deposited with LHA in intact condition. Public Analyst analysed the sample and found the CC No. 41185/2016 Page No. 3/14 DA vs Surinder Kumar Rajput etc sample to be non-conforming to standards prescribed under the PFA Act & Rules. The report of the PA is as follows :-
"The sample does not conform to the standard because Iodine value is less than prescribed limit of 120".
4. It is further the case of the complainant that accused No. 1 Surinder Kumar Rajput was the vendor-cum-Chef of M/s DV8 Enterprises Pvt Ltd., 13, Regal Building, Connaught Place, New Delhi - 110001. M/s DV8 Enterprises Pvt Ltd is a limited company consisting three Directors i.e. accused No. 3 Sukhdev Singh Majithia, accused No.4 Mrs Ameera Majithia & accused No. 5 Mrs Gurpreet Majithia. The company has not appointed any nominee under the PFA Act as such the company alongwith all the three directors are incharge of and responsible for day to day conduct of the business.
5. It is further stated that at the time of sampling, the vendor-cum- Chef disclosed that the sample commodity was purchased from M/s Nagpal & Sons, 548-49, Lahori Gate, Naya Bazar, Delhi. M/s Nagpal & Sons is a partnership firm and the firm has appointed accused NO. 7 Mukesh Kumar Manager as its nominee under the PFA Act. As such he alongwith the firm was incharge of and responsible for day to day conduct of the business. M/s Swami Savanand Grah Udyog, 55/583, Mama Ka Bazar, Gwalior (MP) is the manufacturer of the sample commodity, which is a proprietorship firm and accused No. 8 Sewa Ram is the proprietor of the said firm. As such he was incharge of and responsible for day to day conduct of the business of the said firm.
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6. Thereafter on 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 26.06.2003 alleging violation of section 2(ia)(a)(m) of PFA Act, as punishable section 7/16(1)(a) of PFA Act against the accused persons.
7. 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 26.06.2003. The accused thereafter exercised their option of analysing the counter part through CFL under section 13 (2) of the PFA Act. As per CFL report the iodine value was 112.71 which has to be between 120 to 141 as per standard. Based on the report of the CFL as well as evidence led in pre charge evidence, charge was framed against the accused for commission of the offence punishable under section 7/16(1) (A) PFA Act being violation of Section 2(ia)(a)(m) of PFA Act, to which accused pleaded not guilty and claimed trial. During the trial, the accused No. 4 to 7 were also discharged vide order dated 17.09.2009.
8. At the trial, the prosecution examined four witness in support of its case i.e. PW-1 FI Suniti Kumar, PW2 FI Sh Bal Mukand, PW-3 FI Sh R.K. Bhaskar and PW-4 SDM/LHA Sh Manoj Aggarwal. PW-1, PW-3 were part of the team that had visited the spot for sample proceedings under the supervision of SDM/LHA Sh Manoj Aggarwal. These witness 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 375 gms of Refined Soyabean Oil (ready for sale) from CC No. 41185/2016 Page No. 5/14 DA vs Surinder Kumar Rajput etc sealed tin of 15 kg after opening the same from one side, shakening the sample commodity in all possible directions several times, dividing the sample commodity into three equal parts in three clean and dry bottles, separately sealing, packing and marking the same and obtaining signatures of vendor and witnesses. They also proved the necessary documents including the vendor's receipt Ex. PW-1/A, Notice in Form VI Ex.PW-1/B, Panchnama Ex. PW-1/C. The vendor disclosed the source of purchase of sample commodity from M/s M/s Nagpal & Sons, 548-49, Lahori Gate, Naya Bazar, Delhi accordingly notice in form VI u/s 14 A Ex.PW1/D was also prepared on the spot. Thereafter, one counterpart of the sample was deposited in intact condition with PA on 09.04.2001 vide receipt Ex.PW1/E and remaining two counter-parts were deposited with SDM/LHA vide receipt Ex.PW1/F. Thereafter, PA Report Ex.PW-1/G was received according to which sample was found not conforming to standard. Thereafter during the investigation PW-1 received information Ex.PW1/H from the PFA Department, Delhi. PW-1 Suniti Kumar Gupta wrote letter Ex.PW1/I to STO Ward No.3 with reference to constitution of M/s D.V.8 Enterprises and received reply Ex.PW1/J from STO Ward No.3 stating that Sh. Sukhdev Singh Majidiya is the Proprietor of the firm. He also sent a letter Ex.PW1/K to Chief Medical Officer, NDMC on 2.5.01 but no reply was received. A letter Ex.PW1/L was also sent to the vendor and received a reply Ex.PW1/M from M/s D.V.8 Enterprises dated 26.5.01 alongwith documents mark A-1 to A-7. He also sent letter Ex.PW1/N to M/s D.V.8 Enterprises with copies to the Delhi Mart.Com and lnvision Internet & Data System to clarify that as per his visit, no firm in the name of M/s Delhi Mart.Com and lnvision Internet & Data CC No. 41185/2016 Page No. 6/14 DA vs Surinder Kumar Rajput etc System exist at the given address for which they informed vide letter Ex.PW1/M. Thereafter, PW-1 received another reply Ex.PW1/O from M/s D.V.8 Enterprises. PW-1 also received another letter Ex.PW1/N M/s D.V.8 Enterprises. PW-1 also sent a letter Ex.PW1/P to the STD Ward No.89 to know the constitute of M/s Delhi Mart.Com and as received its reply stating that the firm was not registered with Sales Tax. He also sent a letter Ex.PW1/Q dated 10.8.01 to the vendor. He also sent a letter Ex.PW1/R to M/s Delhi Mart.Com but no reply was received. He also sent a letter Ex.PW1/S to M/s Nagpal & Sons and its reply Ex DW1/T alongwith documents. He also also received a letter Ex. 1//U from M/s Nagpal 8: Sons on 18.4.01. He had also received a reply Ex.PW/V from MCD Office, Minto Road. He also sent a letter Ex.PW1/W to STO Ward No. 29 and the reply of STD on the back alongwith document. He also sent a letter Ex.PW1/X to the manufacturer of M/s Swami Sarwanand Grahudyog on 2.5.01 and received reply Ex.PW1/Y. He had also received a letter Ex.PW1/Z from the office of Commissioner, Nagarpalika, Gwalior alongwith two photocopies. He had also sent a letter Ex.PW1/Z1 to Registrar of Company, Delhi and received certified/attested documents PW1/Z2 (collectively). He also sent two letters Ex.PW1/Z3 & Z4 to lncharge, Nagarpalika Nigam, Gwalior and reply Ex.PW1/Z5 alongwith documents. Thereafter Sh. K.S. Wahi, Director PFA granted the sanction Ex.PW2/A to prosecute the accused persons. Thereafter PW-2 filed the present complaint ExPW2/B in the Court. Then intimation letter Ex.PW2/C along with copy of PA Reports were sent to accused persons through post vide postal receipt Ex.PW2/D which were not received back undelivered. The witnesses were duly cross CC No. 41185/2016 Page No. 7/14 DA vs Surinder Kumar Rajput etc examined by the Ld Defence counsel.
9. Statement of the accused under section 313 CrPC were recorded on 28.06.2016 wherein the accused denied the allegations and pleaded innocence. Thereafter the matter was listed for defence evidence.
10. In his defence, the accused persons examined one Sh Mayank, Clerk from South Indian Bank Ltd, Connaught Place Branch, New Delhi as DW-1 and accused No. 3 Sukhdev Majithia examined himself as DW-2. Thereafter, vide order dated 23.10.2017, the defence evidence was closed and the matter was fixed for final arguments.
11.In a criminal case, the burden is only on the prosecution to prove its case against the accused beyond reasonable doubt by leading positive evidence. This burden cannot be shifted to the accused and it has to be necessary discharged by the prosecution itself.
12. The present case alleges adulteration in the sample of Refined Soyabean Oil, ready for use in preparation of chineese food collected from the business concern of the accused. This sample of Refined Soyabean Oil, ready for use in preparation of chineese food has been analysed twice, firstly by the PA and secondly, by the CFL.
13. 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 CC No. 41185/2016 Page No. 8/14 DA vs Surinder Kumar Rajput etc 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.
14. 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.
15. 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."
16. The scheme of Act would show that CFL has been, in a way, CC No. 41185/2016 Page No. 9/14 DA vs Surinder Kumar Rajput etc given the status of an appellate expert over the findings of PA. In the landmark judgement titled as MCD v. Bishan Sarup [ILR 1970 (1) Delhi 518], the full bench of Hon'ble High Court of Delhi observed that "According to the scheme of the Act, the Director of Central Food Laboratory is constituted to be a sort of greater expert than the Public Analyst and his certificate supersedes the report of Public Analyst under sub-section (3) of section 13". The Hon'ble Court also took a note of the ruling in Municipal Corporation of Delhi v. Ghisa Ram [AIR 1967 SC 970] wherein it was observed that the right has been given to the vendor for his satisfaction and proper defence, to get the sample analysed by a "greater expert whose certificate is to be accepted by court as conclusive evidence".
17. What is important to be noted is, that no such finality and conclusiveness has been attached to the report of PA and it has been only attached to the report of CFL. Reliance can be placed on Municipal Corporation of Delhi v. Zahiruddin [ILR (1972) 1 Del 630]. Thus, evidence can be given by the accused to disprove the report of PA, but once the accused exercises his right under section 13(2) of the Act upon which Certificate is given by CFL, such a certificate of CFL would supersede the PA report and would become final and conclusive.
18. The whole case of prosecution is now based on the CFL report. The CFL report has been assailed by the defence on the ground that the sample was analysed by CFL after the expiry of the product in question i.e. "refined soyabean oil" and the defence has relied upon the judgement of of Hon'ble Supreme Court of India in CC No. 41185/2016 Page No. 10/14 DA vs Surinder Kumar Rajput etc State of Haryana vs Unique Farmaid P. Ltd & Ors 1999 (2) FAC399 to argue that the "refined soyabean oil" was packed in February 2001 and its expiry date was five months. The sample was sent after this period and therefore its analysis by CFL has no value.
19. I have gone through the judgement citied by the defence. In this case, the sample in question was of an insecticide. The manufacturing date of insecticides was March 1994 and its expiry date was February 1995. By the time the accused was summoned to appear in the Court on April 06, 1995. they had lost their right of getting the samples be analysed from Central Insecticide Laboratory. The Hon'ble Court held that by the time, the respondents were asked to appear before the Court, the expiry date of insecticide was already over and sending of sample to the Central Insecticide Laboratory at that stage would be of no consequence. In the words of Hon'ble Court :-
"Sub-section (1) of Section 30 which appears to be relevant only prescribes in effect that ignorance would be of no defence but that does not mean that if there are contraventions of other mandatory provisions of the Act, the accused have no remedy. Procedure for testing the sample is prescribed and if it is contravened to the prejudice of the accused, he certainly has right to seek dismissal of the complaint. There cannot be two opinions about that. Then in order to safeguard the right of the accused to have the sample tested from Central Insecticides Laboratory, it is incumbent on the prosecution to file the complaint expeditiously so that the right of the accused is not lost. In the present case, by the time the respondents were asked to appear CC No. 41185/2016 Page No. 11/14 DA vs Surinder Kumar Rajput etc before the Court, expiry date of the insecticide was already over and sending of sample to the Central Insecticides Laboratory at that late stage would be of no consequence. This issue is no longer res integra. In The State of Punjab v. National Organic Chemical Industries Ltd., JT (1996) 10 SC 480 this Court in somewhat similar circumstances said that the procedure laid down under Section 24 of the Act deprived the accused to have sample tested by the Central Insecticides Laboratory and adduce evidence of the report so given in his defence. This Court stressed the need to lodge the complaint with utmost dispatch so that the accused may opt to avail the statutory defence. The Court held that the accused had been deprived of a valuable right statutorily available to him. On this view of the matter, the court did not allow the criminal complaint to proceed against the accused. We have cases under the Drugs and Cosmetics Act, 1940 and the Prevention of Food Adulteration Act, 1954 involving the same question. In this connection reference be made to decisions of this Court in State of Haryana v. Brij Lal Mittal & Ors., [1998] 5 SCC 343 under the Drugs and Cosmetics Act, 1940; Municipal Corporation of Delhi v. Ghisa Ram, AIR (1967) SC 970; Chetumal v. State of Madhya Pradesh & Anr., [1981] 3 SCC 72 and Calcutta Municipal Corporation v. Pawan Kumar Saraf & Anr., [1999] 2 SCC 400 all under the Prevention of Food Adulteration Act, 1954.
It cannot be gainsaid, therefore, that the respondents in these appeals have been deprived of their valuable right to have the sample tested from the Central Insecticides Laboratory under sub- section (4) of Section 24 of the Act. Under sub-section (3) of CC No. 41185/2016 Page No. 12/14 DA vs Surinder Kumar Rajput etc Section 24 report signed by the Insecticide analyst shall be evidence of the facts stated therein and shall be conclusive evidence against the accused only if the accused do not, within 28 days of the receipt of the report, notify in writing to the Insecticides Inspector or the Court before which proceedings are pending that they intend to adduce evidence to controvert the report. In the present cases Insecticide Inspector was notified that the accused intended to adduce evidence to controvert the report. By the time the matter reached the court, shelf life of the sample had already expired and no purpose would have been served informing the court of such an intention. The report of the Insecticide Analyst was, therefore, not conclusive. A valuable right had been conferred on the accused to have the sample tested from the Central Insecticides Laboratory and in the circumstances of the case accused have been deprived of that right, thus, prejudicing them in their defence."
20. Now in the present case, the sample of "refined soyabean oil"
was lifted on 04.04.2001. Form VI prepared on the spot shows that the month of packing of "refined soyabean oil" was February 2001 and it was mentioned on the packet that the expiry date wa five months. The sample was analysed in CFL in August 2003 and therefore it is clear that the sample was analysed after the period of its expiry and therefore convicting the accused on the basis of analysis of such a sample, will not be proper. Therefore, placing reliance upon the aforesaid judgement of Hon'ble Supreme Court of India in State of Haryana vs Unique Farmaid P. Ltd & Ors, Hindustan Liver Ltd Vs State of Punjab 2011 (1) FAC 192, a benefit of doubt is given to the accused regarding the CC No. 41185/2016 Page No. 13/14 DA vs Surinder Kumar Rajput etc adulteration of the sample, which is the subject matter of the present case. Reliance may further be had upon the case titled as Food Inspector vs Banarsi Das & Ors 2014 (2) FAC 177 wherein the order of declining cognizance was uphold by Hon'ble High Court of Delhi when the complaint was filed after expiry period of the product more particularly when no preservative was added to the sample as per the prosecution evidence. Reliance may further be had on the judgement of Marico Ltd and others vs State of Delhi 2015 (1) FAC 40.
21. On the basis of aforesaid discussions, the accused (except accused no. 4 to 7 who are already discharged) are acquitted in the present case.
Announced in the open court this 26th day of March 2018 SAMAR VISHAL ACMM-II (New Delhi), PHC CC No. 41185/2016 Page No. 14/14 DA vs Surinder Kumar Rajput etc