Delhi District Court
Sh. Manoj Rathi vs The State (Delhi Administration) on 11 May, 2016
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IN THE COURT OF SH. RAKESH PANDIT,
ASJ-01, NEW DELHI DISTRICT, PATIALA HOUSE COURTS, NEW DELHI
Case ID No.02403R0075742014
CA No. 27/16
Sh. Manoj Rathi
S/o Sh. Om Prakash Rathi
M/s Maheshwari Store,
M-3, Panchsheel Garden,
Naveen Shahdara, Delhi-32
R/o 1/10056-B, West Gorakh Park,
Gali no. 5, Delhi-110032. ....Appellant
Vs.
The State (Delhi Administration)
PFA Department, A-20 Lawrence Road,
Industrial Area, Delhi. .... Respondent
Date of receiving of Appeal : 24.02.2016
Date of arguments : 19.04.2016
Date of judgment : 11.05.2016
JUDGMENT
1 By this judgment I will dispose of appeal u/sec.374 Cr.PC. filed on behalf of convict Manoj Rathi against the judgment dated 21.04.2014 and order on sentence dated 24.04.2014 passed by Sh. Gaurav Rao, Ld. ACMM-II, Patiala House Court, New Delhi.
2 The brief facts of the case as per record and from trial court record are that accused is running an establishment namely M/s CA No. 27/16 Manoj Rathi Vs. State page 1 of 7 2 Maheshwari Store, M-3, Panchsheel Garden, Naveen Sahadara, New Delhi. On 26.04.2004 at about 6.00 p.m. Food Inspector Sh. Ram Pratap Singh visited the said place and purchased 1500 grams of "Dal Arhar"
(ready for sale) from accused. FI was accompanied with SDM/LHA Sh. R. K. Chauhan. The said Arhar Dal was purchased for the purposes of analysis under PFA Act. The same sample was divided into three parts, packed as per Rules of PFA. Panchanama was prepared. One sample was sent for analysis to Public Analyst. As per the report of Analyst, sample did not confirm to the standard because "The sample is adulterated because it is coloured with synthetic colouring matter viz. Tartrazine."
3 As the sample was failed, prosecution was launched by Food Inspector by filing complaint dated 10.08.2004 with the court. Accused was summoned. He has not exercised his right u/sec.13(2) PFA Act to get the sample analyzed by CFL.
4 Charge was framed against accused u/sec.2(ia) (a) (j) (m) read with sec.7 of PFA Act, 1954 punishable u/sec.16(1A) of PFA Act.
5 After trial, vide judgment dated 21.04.2014 accused was convicted for offence u/sec.16(1A) of PFA Act and vide order on sentence dated 24.04.2014, accused was directed to undergo simple imprisonment for a period of 18 months and fine of Rs.10,000/- and in default of payment of fine SI of 60 days.
6 In this appeal, the accused has assailed the judgment on the following grounds:-
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(i) Non-compliance of Sec.10(7) of PFA Act and Rule i.e.
independent witnesses were not joined.
(ii) Non-compliance of Sec.17 & 18 Of PFA Rules.
(iii) PA report was not signed on the day of analysis.
(iv) The adulteration of Dal Arhar falls in the category of misbranding and not adulteration.
(v) Public Analyst was not appointed as PA on the date of sampling.
(vi) Paper chromatography test is not a reliable test.
(vii) Non-compliance of Rule 14 of PFA Rules i.e. the bottles, jhawa, polythene were not made clean and dried at the spot by the food inspector or any other official.
7 No reply was filed by respondent/state and the matter was argued orally.
8 I have gone through the record, Trial Court record and have heard the submissions of Ld. counsel for appellant and Ld. SPP for State.
9 It is argued by counsel for appellant that no public witness was present in the proceedings nor efforts were made to join any public witness. As far as this argument is concerned, the same argument was raised before the Ld. Trial Court. The same was dealt by the trial court from para 19 to 24 of the judgment. As far as opinion/finding of the trial court regarding this argument is concerned, I do not find any infirmity in those findings and the same are upheld and the arguments regarding this fact does not find any force and thus rejected.
10 It is further argued that the compliance of Rule 17 & 18 of PFA Rules, 1955 was not done. It is argued that no witness has deposed CA No. 27/16 Manoj Rathi Vs. State page 3 of 7 4 that sample seal was sent to the PA separately. It is stated that even the same is not reflected in the PA Report. As far as these arguments are concerned, the same were argued before the trial court and is dealt in para 65 to 71 of the judgment. As far as the reasoning given by the trial court in dealing with these arguments, the same appears to be correct. So, the reasoning in the judgment regarding this line of argument/fact is thus upheld.
11 It is argued that the PA report was not signed on the date of analysis and even PA was not appointed on the date of sampling. This line of argument was done before the Trial Court and was dealt in para 84 of the judgment of trial court. After going through the reasoning given in the said para and after going through the arguments done before me, I do not find any infirmity in the said finding and the same is upheld and the arguments of Ld. counsel for appellant in this respect are discarded.
12 It is further argued that both the scientists that Public Analyst as well as at CFL had used to detect colour by way of Paper Chromatography Test and the same is not a reliable test for detecting colour in food articles. This leg of arguments was also done before the trial court and are being dealt by it in para 82. I do not find any other opinion than that given by the trial court and thus the arguments addressed by Ld. counsel for appellant in this regard are rejected and the reasoning given by the trial court is upheld.
13 It is further argued that compliance u/sec.14(2) PFA Rules was not proved on record by the prosecution. It is stated that witnesses are deposing differently with respect to the cleanliness of jhaba etc. It is CA No. 27/16 Manoj Rathi Vs. State page 4 of 7 5 further stated that it was the duty of the prosecution to prove these facts. These arguments were also addressed before the trial court. The relevant part of the judgment dealing with these arguments are from para 25 to 49 of the judgment.
14 As far as the arguments in this regard is concerned, the law discussed by the trial court is correct and the same is self explanatory. However, as far as the analysis of facts are concerned, to my opinion, the same requires some more elaboration.
15 As far as Rule 14 of PFA Rules are concerned, it spells out that the FI shall use dry bottles or containers for the purposes of sampling. However, this fact was elaborated further by Hon. Supreme Court in Varghese Vs. Food, 1989 (II) Prevention of Food Adulteration Cases, 236 stating that "it must be the endeavour of the FI to use clean and dry implements in sampling the articles of food. If unhygienic methods are adopted, it will effect the result of analysis. So, the Hon. Supreme Court use the word "implements" instead of only "dry and clean bottles/containers". Similarly, in other judgments, i.e. State of Haryana Vs. Kishan Kumar CLT 559, it was observed that the prosecution had not stated that the "weighing scale" was clean. Similarly, in other judgments, like Sardar Mal Jain, 1996 (2) Prevention of Food Adulteration Cases, 203, it was stated that the newspaper on which the Barfi was weighed was not clean. Similarly, in Shashi Kant Vs. State of UP, 1983 (1) Prevention of Food Adulteration Cases 90, it was observed that the "bhagona" was not proved to be clean and dry.
16 So, accordingly, it can be said that the law which can be CA No. 27/16 Manoj Rathi Vs. State page 5 of 7 6
crystallized from various judgments of Hon. High Courts as well as Hon. Supreme Court is that if in evidence, the prosecution states that the sample commodity had touched a surface of an "implement", it is the duty of the prosecution to prove beyond reasonable doubt that the said implement was clean and dry and thus could not have added any impurity to the sample. However, it is not the law that the FI shall spell out on which surfaces the sample commodity had touched while sampling. However, if he chosen to spell out the implements/surfaces with which the sample commodity came into contact/touch, the same must be proved as clean and dry.
17 In the present case, the PW1/FI Ram Avtar stated that the Dal Arhar was picked with one jhaba which was provided by the vendor. He further deposed that jhaba was not made clean and dry at the spot but it was already clean and dry.
18 PW2/LHA R. K. Chauha also deposed that the jhaba was provided by the accused in clean and dry condition.
19 However, PW3 Sh. D. N. Verma FA deposed that the jhaba was lying in the gunny bag itself containing Dal Arhar and hence it was not made clean and dry at the spot.
20 So, in these circumstances, there are two versions regarding the jhaba. One that it was supplied by the accused himself and the other that it was already lying in the gunny bag. Similarly, on these basis there are two versions regarding the cleanliness. PW1 and PW2 stated that as the jhaba was supplied by the vendor/accused, the same was clean and CA No. 27/16 Manoj Rathi Vs. State page 6 of 7 7 dry. However, as per PW3 it is not spelt that whether it was made clean and dry (he deposed that it was not made clean and dry at spot). So, two versions are possible and available on record. As per the law stated by Hon. Apex Court in various judgments, the version in favour of accused is to be accepted. So, in these circumstances the fact of compliance u/sec.14 PFA is not established by prosecution beyond reasonable doubt. Hence, benefit goes in faovur of appellant.
21 So, in these circumstances, the judgment and order on sentence of the trial court is reversed.
22 Accused Manoj Rathi is acquitted of the charges u/sec.16(1A) read with sec.7 of PFA Act.
23 Bail Bond u/sec.437A Cr.P.C. furnished. Accepted for six months.
24 TCR be sent back with copy of the order.
25 File of appeal be consigned to Record Room.
ANNOUNCED In the open Court (RAKESH PANDIT)
today i.e. 11.05.2016 ASJ-01/New Delhi District
Patiala House Courts/New Delhi
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CA No. 27/16
Manoj Rathi Vs. State/Delhi Admn.
11.05.2016
Present: Sh. R. D. Goel counsel with appellant.
Sh. A. K. Mishra Ld. SPP for State.
Vide separate judgment the appeal filed by the appellant is disposed is allowed. Accused Manoj Rathi is acquitted of the charges u/sec.16(1A) read with sec.7 of PFA Act.
TCR be sent back with copy of the order.
Bail Bond u/sec.437A Cr.P.C. already furnished and accepted.
File of appeal be consigned to Record Room.
(Rakesh Pandit)
ASJ-01/PHC/New Delhi District
11.05.2016
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