Delhi District Court
Shri Nathu Ram vs The State (D.A.) on 12 July, 2012
-1-
IN THE COURT OF MS. NEENA BANSAL KRISHNA :
ADDITIONAL SESSIONS JUDGE-01 : NEW DELHI
In re :
CA No. 37/12
Shri Nathu Ram
S/o Shri Om Prakash
M/s Kamal Store,
RZ-56A, Vaishali Dabri,
Delhi-45 ..... Petitioner
versus
The State (D.A.)
[Govt. of NCT of Delhi, ..... Respondent
Date of institution of the appeal : 24.02.2011
Date of reserving judgment/order : 10.07.2012
Date of judgment / order : 12.07.2012
JUDGMENT :
1 This appeal u/s 374 Code of Criminal Procedure has been preferred against the judgment dated 01.02.2011 and order on sentence dated 22.02.2011 of Ld. ACMM-II, New Delhi, in complaint case no. 81/98, 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 to undergo rigorous imprisonment for 3½ years and to pay a fine of Rs.5,000/-, in default to undergo further simple imprisonment for one month. 2 The facts in brief are that on 13.08.1998 at about CA No. 37/12 Page No. 1 of 9 -2- 01.30 p.m. Food Inspector Sh. R. K. Bhaskar under the supervision and directions of Sh. R. K. Nanda, LHA, went to M/s Kamal Store, RZ-56A, Vaishali, Dabri, New Delhi - 45, whereby the appellant/accused was found to be conducting the business of food articles including sale of "mustard oil". A sample of about 375 gms of "mustard oil", which was ready for sale was taken from an open tin by mixing the oil with the help of measure by rotating it in all possible directions and was divided into three equal parts and sealed as per the PFA Act and Rules, the sample of "Mustard Oil" were separately packed, fastened and sealed as per the requirements. One sample was sent to the Public Analyst, who reported that the sample was adulterated with Argemone oil and was having saponification value more than the prescribed limit of
177. 3 After obtaining the consent u/s 20 of the Act from the Director, PFA, the complaint was filed in the Court against the above mentioned accused persons.
4 The accused was summoned vide order dated 31.07.1998. After putting his appearance before Court, he exercised the option u/s 13 (2) of the PFA Act. The Director, CFL gave the Certificate dated 10.11.1998 that the sample was strongly positive for argemone oil and was, thus, adulterated.
5 The charges for the violation of provisions of S.2 (ia)(a)(b)(c)(f)(h), Section 2 (ix) (k) and Rule 32 of the Act punishable u/s 16 (1A), r/w S. 7 of the Act of 1954 was framed CA No. 37/12 Page No. 2 of 9 -3- against the accused vide order dated 01.12.2008, to which he pleaded not guilty and claimed trial.
6 Two witnesses viz. PW1 Sh. R. K. Bhaskar, Food Inspector and PW2 Sh. S. K. Nanda, the then LHA were examined by the prosecution.
7 The statement of the accused was recorded u/s 313 Cr.PC, where he pleaded his innocence.
8 The appellant also examined Dr. S. N. Mahendru, Expert in his defence as DW1.
9 The Ld. Trial Court after considering the two reports i.e. of the Public Analyst and the Director, CFL found that the sample contained argemone oil and its presence per se was prohibited under the Rules. Moreover, argemone oil was injurious to health and, thus, concluded the sample to be adulterated and accordingly, convicted and sentenced the accused.
10 Aggrieved by the said conviction and sentence, the present appeal has been filed.
11 The ld. Counsel on behalf of the appellant has argued that the sample, by the Director, CFL as well as Public Analyst, has been found to be adulterated merely because of the presence of argemone oil. However, the presence of argemone oil was expressly barred vide notification dated 11.12.2001 and before then it was nowhere provided that argemone oil should not be present in the "Mustard Oil". In the absence of any such prohibition, in order to hold the sample adulterated, it was further necessary for the CA No. 37/12 Page No. 3 of 9 -4- prosecution to prove its quantity to conclude that it was injurious to health. Small traces of argemone oil are in fact used in the medicines and per se presence of argemone oil cannot be said to be injurious to the health. It is further argued that even otherwise, the two samples examined by the Public Analyst and the Director, CFL, cannot be considered as representative of each other. In the Public Analyst report, the saponification value was found to be 179.39 as against the permissible limit of 177. However, in the Director, CFL report the said saponification value was found to 174.9 i.e. within the permissible limits. Furthermore, in the Public Analyst report the Iodine content were found to be 90.06, while in the CFL report it was found to be 104.0. Further the BTT Test in the report of Public Analyst was 25.6o C, while in the CFL report it was 29o C. It was, thus, argued that such huge variations in the various components detected in the two reports clearly show that the two samples were not representative of each other. Therefore, the appellant is entitled to be acquitted.
12 Ld. Special PP on behalf of the Department has argued that the sample of "mustard oil" was found adulterated not only by the Public Analyst but also in CFL report which takes precedence over the Public Analyst report. The appellant has been rightly convicted by the Ld. MM and the sentence does not call for any interference. 13 I have heard the arguments and have perused the record and the evidence led therein. My observations are as under :
CA No. 37/12 Page No. 4 of 9 -5-14 The main arguments addressed on behalf of the appellant is that both the Public Analyst report and the Director, CFL report have reported the same of "Mustard Oil"
to be adulterated on account of the presence of Argemone Oil. However, the notification banning the presence of Argemone Oil in "Mustard Oil" came only on 11.12.2001, while, the sample in the present case was taken on 13.08.1998 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. It was thus, argued that the appellant is entitled to be acquitted.
15 It is not in dispute that the sample of the oil was taken by the Inspector on 13.08.1998 and in both the Public Analyst report and the Director, CFL report the Argemone Oil has been found to be present.
16 The fact which needs to be highlighted is that absence of Argemone Oil from "Mustard Oil" 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 CA No. 37/12 Page No. 5 of 9 -6- sample has been taken in the year 1998 when the said prescribed standard was not in existence.
17 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 1% 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. 18 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 in 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 of mineral oil in the sample could affect injuriously the nature, CA No. 37/12 Page No. 6 of 9 -7- 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. 19 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.
20 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 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. 21 The second ground on which the sample has been stated to be adulterated in Public Analyst report is that is saponification value was 179.39 as against the prescribed limit of 177. However, in the CFL report it was found to be 174.9 i.e. within the permissible limit. It has also been highlighted by the CA No. 37/12 Page No. 7 of 9 -8- Ld. counsel for the appellant that there was huge variations in the other values i.e. Iodine value and BTT.
22 To appreciate this argument it is pertinent to re- produce the variations which have been noted in the Public Analyst and CFL report, which are as under :
Sr.No. Quality Characteristics PA Report CFL Report 1 Butyro-Refractometer Reading at 60.0 59.4 40o C 2 Saponification Value 179.39 174.9 3 Iodine Value 90.06 104.0 4 Bellier Test (Turbidity temperature- o 25.6 C 29.0oC acid method) 5 Test for Argemone Oil by TLC Positive Strongly +ve
23 The argument addressed on behalf of the appellant does has some force for if the samples had been taken properly in accordance with the prescribed procedures and were from the same source, then such difference in value should possibly not have been detected. Furthermore, the only other ground in the Public Analyst report for holding the sample to be adulterated was the saponification value being more than the prescribed limit. However, the said saponification value has been found to be well within the prescribed limits in the CFL report. In the circumstances, it cannot be said that the sample was adulterated. 24 For the above mentioned reasons, the appeal is allowed. Conviction is hereby set aside and the appellant is acquitted. Bail-bond and surety bond stand discharged.
CA No. 37/12 Page No. 8 of 9 -9-25 Trial Court Record be sent back along with the copy of this order.
26 Appeal file be consigned to the Record Room. Announced in the open Court on this 12th Day of July,2012.
(Neena Bansal Krishna) ASJ-01/PHC/New Delhi CA No. 37/12 Page No. 9 of 9