Delhi District Court
14. In The Case Reported As Channan Lal vs The State, 1972, on 27 July, 2010
IN THE COURT OF SHRI SANJEEV KUMAR MALHOTRA,
ADDITIONAL CHIEF METROPOLITAN MAGISTRATE-II,
NEWDELHI
C.C. N0. 94/2000
Food Inspector
Department of PFA
Govt of NCT of Delhi
A-20, Lawrence Road,
Indl. Area, Delhi-35
Versus
1. Shashi Kant Shukla
S/o Late Sh. R.S. Shukla
M/s Amrit Dairy, E-19-20,
Commercial Complex,
Karampura, New Delhi.
2. Raj Kumar Giri/Goswami
S/o Sh. Bhoj Raj,
M/s Amrit Dairy,
Milk Plant at Siyana Road,
Bulandshahar (UP)
R/o Devipura, Bulandshahar ( UP)
JUDGMENT
Date of Institution : 9.5.2000 Date of reserving judgment : 27.07.2010 Date of Pronouncement : 27.07.2010 U/S: 2 (ia)(a)(m) punishable under Section 16 (1) (a) read with section C.C. N0. 94/2000 1 7 of the PFA Act The final order : Acquitted Brief statement of the reasons for such decision-
1. The present complaint is filed by the Delhi Administration through Food Inspector Hukam Singh against the above said accused persons, for prosecution of the offence under section 7/16 of the Prevention of Food Adulteration Act, 1954 (hereinafter referred to as the PFA Act)
2. The complainant has submitted that on 26.6.99 at about 6:30 a.m., Food Inspector, Hukam Singh purchased a sample of ' Toned Milk' (ready for sale in Delhi ), a food article for analysis from Sh. Shashi Kant Shukla S/o Late Sh. R.S. Shukla, Sales Supervisor, vehicle No. UP 14, K-3110 at Bhopra Check Post, Nand Nagari , Delhi, where the said food article was found stored for sale and Sh. Shashi Kant Shukla was found conducting the business of the said food article at the time of sampling. The sample was taken under the supervision/direction of Sh. S.K. Singh, SDM/LHA. The sample consisted of one liter of Toned Milk taken from two sealed poly packets of 500 ml, each having identical label declaration. The sample was taken after shaking the milk gently in the poly pakets and then the packets were cut from one corner and put the whole contents into clean and dry plastic jug and mixed properly with the help of clean and dry spoon. The Food Inspector divided the sample then and there into three equal parts by putting them in three clean and dry bottles. 27 drops of formalin C.C. N0. 94/2000 2 were added in each sample bottle. Each bottle containing the sample was separately packed, fastened, and sealed according to the PFA Act and Rules. The vendor's signatures were obtained on the LHA slip and the wrapper of the sample bottles. Notice was given to the accused Shashi Kant Shukla and the price of the sample was also given to him. The Panchnama was prepared at the spot. All the documents prepared by Sh. Hukam Singh, Food Inspector were signed by the accused Shashi Kant Shukla and other witness Sh. V.P.S. Chaudhary, Food Inspector. Before starting the sample proceedings efforts were made to join the pubic witnesses but none came forward. One counter part of the sample was sent to the Public Analyst in intact condition and two counter parts were deposited with the LHA in intact condition. The Public Analyst analysed the sample on 12.07.99 and opined that the sample does not conform to standards because milk solids not fat is less than the prescribed minimum limit of 8.5%.
3. After the conclusion of the investigation, the entire case file including the statutory documents and PA's report and the report of the FI was sent to the Director (PFA) Delhi Administration, Government of NCT of Delhi who accorded consent under Section 20 of PFA Act for institution of the case and authorised Sh. Hukam Singh, Food Inspector to file the present complaint.
4. The accused are allegedly to have violated the provisions of Section 2 C.C. N0. 94/2000 3 (ia) (a) & (m) punishable U/s 16 (1) (a) read with Section 7 of the PFA Act.
5. Summons of the case were served upon the accused persons and pursuant thereto they had appeared before the court. On 22.5.2000, accused Shashi Kant Shukla moved an application to get the second counterpart of the sample analysed from the Director, CFL while exercising his right under Section 13(2) of the PFA Act and second counterpart of the sample was examined by the Director, CFL, Calcutta vide Certificate No. G.14-4/2000 ( Pt-1)-307 dated 5.7.2000 according to which the sample of Toned Milk is adulterated.
6. Notice under Section 251 Cr.P.C for contravention of provision of Section 2 (ia)(a)(m) punishable under Section 16 (1) (a) read with section 7 of the PFA Act was framed against the accused separately on 3.7.01 to which he pleaded not guilty.
7. In support of its case, complainant examined PW-1 F.I. Hukam Singh; PW-2 F.I. V.P.S. Chaudhary ; PW-3 Sh. S.K. Singh, SDM/LHA.
8. Statement of accused was recorded under Section 313 Cr.P.C on 27.04.2010 wherein he has controverted and rebutted the entire evidence against him while submitting that he is innocent and preferred not to lead evidence in his defence.
C.C. N0. 94/2000 49. As per section 2(ia)(a) of PFA Act, an article of food shall be deemed to be adulterated if the article sold by a vendor is not of the nature, substance or quality demanded by the purchaser and is to his prejudice, or is not of the nature substance or quality which it purports or is represented to be.
10. As per section 2 (ia)(m) of PFA Act, an article of food is said to be adulterated if the quality or purity of the article falls below the prescribed standard or its constituents are present in quantities not within the prescribed limits of variability but which does not render it injurious to health.
11.It is true that the mensrea in the ordinary or usual sense of this term is not required for proving an offence defined by Section 7 of the Prevention of Food Adulteration Act, 1954. It is enough if an article of adulterated food is either manufactured for sale or stored or sold or distributed in contravention of any provision of the Act or of any rule made thereunder. Nevertheless, the prosecution has to prove beyond reasonable doubt that what was stored or sold was food.
ARGUMENTS AND FINDINGS.
12.I have heard both the sides at length and have given my conscious C.C. N0. 94/2000 5 thought and prolonged consideration to the material on record, relevant provisions of law and the precedents on the point. The SPP has argued that as the case is well proved and the accused is liable to be convicted. Ld. Defence counsel, on the other hand, has vehemently argued that there is an inordinate delay in filing the complaint which caused prejudice to the accused in obtaining the correct analysis of the second counterpart from the Director, CFL. Ld. Defence counsel further argued that the sample was not representative as to why there is vast variation in the reports of the two Analysts in respect of counterpart of the same sample.
Delay in filing the complaint and its effect :-
13. In the present case the sample of Toned Milk was taken by Food Inspector Hukam Singh from accused Shashi Kant Shukla on 26.06.99 and it was analysed by the Public Analyst on 12.07.99 i.e within sixteen days. However, the complaint was filed on 09.05.2000.
14. In the case reported as Channan Lal Versus The State, 1972, Prevention of Food Adulteration Cases, 292, it has been held by the Hon'ble Delhi High Court that it is the duty of the prosecution to see that the right conferred by Section 13 on the petitioner to have the sample analysed by the Director of Central Food Laboratory is not frustrated. For this they have to take steps not only for the analysis of the sample by the C.C. N0. 94/2000 6 Public Analyst at an early date but also in launch the prosecution as quickly as the circumstances ordinarily permit if, however, this right of the petitioner is frustrated because of any order of the court or due to the conduct of the accused, the accused cannot claim any benefit.
15. In State v. Anil Batra and others 2008(I) FAC 191 (Del), it was observed as follows:
9. ........ However, in my view the acquittal of the respondents in the present case in view of the decision of the Hon'ble Supreme Court in Ghisa Ram's case (Supra) cannot be said to be unjustified because the crux of the judgment of the Hon'ble Supreme Court is that prosecution in these kinds of cases should be launched promptly.
In that case reference was also made to the opinion of an expert that if a food article, like curd, is kept in a refrigerator and a preservative is added to the sample the total period which may be available for making analysis of that sample without decomposition will be six months. In the present case, the third sample of the paneer was sent to the Central Food Laboratory after the expiry of more that in six months from the date when it was taken from the shop of the respondent no. 1 and there is no explanation forthcoming C.C. N0. 94/2000 7 from the side of the prosecution for that delay. It is admitted by the prosecution that the sample was not kept in refrigerator but was kept in at room temperature till the time from taking of the samples to sending it to CFL.
16. In the present case, it is clearly seen from the record that the sample of Toned Milk was analysed by the Public Analyst, Delhi on 12.7.99 i.e within sixteen days from which the sample was lifted by F.I Hukam Singh but complaint was filed on 09.05.2000 and the Director, CFL examined the second counterpart on 5.7.2000. No explanation whatsoever came on record that even after opinion of Public Analyst in respect of a sample of toned milk, why period of almost ten months occurred by the department to launch the prosecution against the accused in a case of sample of toned milk, although, complainant was aware that accused can exercise his right under Section 13 (2) of PFA Act only after institution of complaint, which is also fatal to the case of complainant.
Whether sample is representative:
17. Ld. SPP for the complainant has submitted that the sample is representative but the Ld. Counsel for the accused has submitted that the sample was not representative sample. Ld. Defence Counsel further submitted that there is difference of more than 0.3% between the report of the Public Analyst and Report of Director, CFL, Kolkata which C.C. N0. 94/2000 8 itself shows that the sample was not representative. On the other hand, Ld. SPP argued that the accused challenged the report of Public Analyst after considering the same as erroneous and moved an application for getting analysed the second counterpart by the Director, CFL. Therefore, he cannot again rely upon the report of the Public Analyst and as such report of Public Analyst cannot be looked into for deciding whether the sample was representative or not.
18. In a judgment titled as Kanshi Nath Vs. State, 2005(2) FAC 219, Delhi High Court , it was held by Hon'ble Mr. Justice Badar Durrez Ahmed, as under;-
''............To this extent, the argument raised by Mr. Sharma that once the certificate of the Director, CFL is obtained, then that is final and conclusive and the Public Analyst's report cannot be looked into at all for any purpose whatsoever, is not quite tenable. If the variation in the two reports is substantial enough, then the Public Analyst's report can certainly be looked into to establish this variation so as to support the contention of the petitioner that the sample was not representative. As indicated above, the Director, CFL who was examined as CW-1 in cross-examination, has clearly stated that if the content of common salt as quantified by the two experts would have a variation of more than- Y.3% then the samples would not be representative. This is an opinion of an expert and one has to go by it. In the facts of the present case, we find that the variation, as indicated C.C. N0. 94/2000 9 above, is more than-Y.3%. Therefore, on the facts of the present case, it can be said that the variation is beyond the acceptable range and would clearly imply that the samples were not representative. In view of this finding and in the background of the law which is well settled, no conviction can be sustained. ''
19. In view of above judgment of the Hon'ble Delhi High Court, I find no force in the contention of the Ld. SPP that the report of the Public Analyst and the Director, CFL cannot be looked into to find whether the sample was representative or not. In the present case, as per report of the Public Analyst dated 12.7.99 wherein the opinion given by the Public Analyst, Delhi was that the sample does not conform to the standard and the result of the Public Analyst was as follows:-
Milk fat - 4.2%
Milk solids not fat - 6.78 %
Test for starch - Negative
Test for added Urea -Negative
20. The second counterpart of the same sample was analysed by the Director, Central Food Laboratory, Calcutta dated 5.7.2000 , the result of analysis of second counterpart of the sample commodity is as follows:-
Milk fat - 1.1 %
C.C. N0. 94/2000 10
Milk solids not fat - 7.3 %
Test for starch - Absent
Test for added Urea - Absent
21.There is vast variation in respect of milk fat and milk solids not fat contents in respect of counterpart of the same sample by two Analysts. One Analyst found milk fat 4.2% while another Analyst found milk fat 1.1% in the counterpart of the same sample. PW-2 F.I. V.P.S. Chaudhary confirmed in his cross-examination that chemistry is an exact science and even if repeated test are performed on a sample there will not be much difference between reports of two Analysts. No explanation has come on record in respect of vast variation between two reports in respect of counterpart of the same sample. Thereby relying upon Kanshi Nath versus State (supra), I am of the considered view that the sample was not representative.
22. In view of my above reasons and discussions, I am of the considered opinion that the complainant has failed to prove that the sample was representative. In result, complaint stands dismissed and both the accused stand acquitted of the charge. Their bail bonds stand cancelled. Sureties discharged. File be consigned to the record room.
Announced in the open court. ( S.K. MALHOTRA )
Dated: 27.07.2010 ACMM-II/NEW DELHI.
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C.C. N0. 94/2000 12