Delhi District Court
Da vs . Farid Ahmed Page 1 Of 17 on 18 November, 2013
IN THE COURT OF SHRI BALWANT RAI BANSAL
ADDITIONAL CHIEF METROPOLITAN MAGISTRATEII
PATIALA HOUSE COURTS, NEW DELHI
C.C. No. 198/02
Food Inspector
Department of PFA
Govt. of NCT of Delhi
A20, Lawrence Road
Indl. Area, Delhi - 35
........ Complainant
Versus
Sh. Farid Ahmed S/o Late Sh. Feroj Ahmed
M/s Masala Chakki, 18/36, Dr. Ambedkar Nagar,
New Delhi 62
R/o 18/49, Dr. Ambedkar Nagar,
New Delhi.
........ VendorcumProprietor
COMPLAINT U/S 16 OF THE PREVENTION OF
FOOD ADULTERATION ACT, 1954
Serial number of the case : 198/02
Date of the commission of the offence : 20.07.2001
Date of filing of the complaint : 22.11.2002
Name of the Complainant, if any : Shri Raj Pal Singh, Food Inspector
CC No. 198/02
DA Vs. Farid Ahmed Page 1 of 17
Offence complained of or proved Violation of provisions of Section 2
(ia) (a) (b) (c) (j) & (I) of PFA Act
1954 r/w Rule 49 (24) of PFA Rules;
punishable U/s 16(1A) r/w section 7
of the PFA Act.
Plea of the accused : Pleaded not guilty
Final order : Acquitted
Arguments heard on : 28.10.2013
Judgment announced on : 18.11.2013
J U D G M E N T
1. The present complaint has been filed on 22.11.2002 by the Delhi Administration through FI Sh. Raj Pal Singh against the accused Farid Ahmed. It is stated in the complaint that on 20.07.2001 at about 5.00 PM, FI Sh. S.B. Sharma purchased a sample of 'Red Chilly Powder', a food article for analysis from Farid Ahmed S/o late Sh. Feroj Ahmed from the premises of M/s Masala Chakki, 18/36, Dr. Ambedkar Nagar, New Delhi 62, where the said food article was found stored for sale and where accused Farid Ahmed was found conducting the business of the said food article at the time of sampling. The sample consisted of approximately 600 gms of 'Red Chilly Powder' and was taken from a gunny bag stitched with a sutli bearing irrelevant declaration than that of article in question. The sample was taken under the supervision/direction of Sh. A.K. Singh, SDM/LHA after proper mixing it thoroughly in all possible direction with a clean and dry big Jhaba to possible extent in the bag itself. All the bags were stated to be of same lot. Thereafter, the sample commodity was divided into three equal parts by Food CC No. 198/02 DA Vs. Farid Ahmed Page 2 of 17 Inspector by putting it in three separate clean and dry bottles and each bottle containing the sample was separately packed, fastened and sealed according to the PFA Act and Rules. The signatures of vendor were obtained on the LHA slip and the wrapper of the bottles containing the sample. Notice was given to accused and price of sample was also paid to him vide vendor's receipt dated 20.07.2001. Panchnama was also prepared at the spot. All these documents prepared by Food Inspector were signed by accused Farid Ahmed and the other witness namely Sh. A.K. Singh, FI. It is stated that before starting the sample proceedings, efforts were made to get the public witnesses to join the proceedings, but none came forward and as such Sh. A.K. Singh, FI joined as witness.
2. It is further stated that one counterpart of the sample bearing LHA Code No. AKS/LHA/0004273 in intact condition was sent to the Public Analyst, Delhi and two counterparts of the sample in intact condition were deposited with LHA. The Public Analyst analysed the sample and opined that "The sample is adulterated because it contains foreign starches and it is coloured with unpermitted oil soluble colouring matter".
3. It is stated that accused was selling the sample commodity in open gunny bag i.e. in unpacked condition which is not allowed in Delhi as per clause 24 of Rule 49 of PFA Rules and accused Farid Ahmed S/o late Sh. Feroj Ahmed was the VendorcumProprietor of M/s Masala Chakki, 18/36, Dr. Ambedkar Nagar, New Delhi at the time of sampling and as such found to be incharge and responsible for day to day conduct of the business of the said CC No. 198/02 DA Vs. Farid Ahmed Page 3 of 17 shop. After conclusion of the investigation, the entire case file was sent to the Director, PFA who accorded the requisite consent U/s 20 of the Act and consequent thereto the present complaint was filed against the accused for violation of provisions of Section 2 (ia) (a) (b) (c) (j) and (l) of the PFA Act r/w Rule 49 (24) of PFA Rules, which is punishable U/s 16 (1A) r/w Section 7 of the Act.
4. The accused was summoned vide order dated 22.11.2002. The accused appeared and moved an application U/s 13 (2) of the PFA Act to get analyzed the second counterpart of the sample from Central Food Laboratory (CFL). The said application was allowed and consequently second counterpart of the sample was sent to CFL, Pune for analysis. Director, CFL on analysing the second counterpart of the sample in question opined vide his Certificate dated 11.03.2003 that "sample does not conform to the standards of chillies powder as per PFA Rules 1955".
5. The prosecution examined Sh. A.K. Singh, the then SDM/LHA, under whose supervision the sample proceedings were conducted, as PW1 and Food Inspector Sh. S.B. Sharma, who conducted the sample proceedings, as PW2 towards precharge evidence and vide order dated 20.04.2005, precharge evidence was closed.
6. Charge for violation of sub clause (a) (b) (c) (j) and (I) r/w Rule 49 (24) of PFA Rules; punishable U/s 16 (1A) r/w section 7 of the Act was framed against the accused Farid Ahmed vide order dated 17.08.2005 to which accused pleaded not guilty and claimed trial.
CC No. 198/02 DA Vs. Farid Ahmed Page 4 of 177. Thereafter, in order to prove its case, in post charge evidence the prosecution examined four witnesses including Sh. A.K. Singh, the then SDM/LHA as PW1, FI Sh. S.B. Sharma as PW2, FI Raj Pal Singh, who filed the present complaint as PW3 and FI Sh. A.K. Singh, who was made a witness in the sample proceedings as PW4 and PE was closed vide order dated 12.10.2010.
8. Statement of accused U/s 313 Cr.P.C. was recorded on 17.02.2011 wherein accused claimed himself to be innocent and opted to lead evidence in his defence. However, no evidence was led by the accused and DE was closed vide order dated 17.01.2012.
9. I have heard the Ld. Counsel for the parties and perused the record carefully.
10. Ld. Counsel for accused has argued that before taking the sample, the Red Chillies Powder was not properly homogenized and a representative sample was not taken which is evident from the variations in the report of Public Analyst and Director, CFL and, therefore, accused cannot be held guilty on the basis of unrepresentative sample. In support of his contentions, he has relied upon various judgments reported in Kanshi Nath Vs. State 2005 (2) FAC 219, M/s Raja Ram Seth & Sons & Anr. Vs Delhi Administration 2012 (2) FAC 523, State (Delhi Administration) Vs. Ram Singh & Ors. 2009 (1) FAC 371, State Vs. Suresh Kumar & Anr. 2010 (2) FAC 204.
CC No. 198/02 DA Vs. Farid Ahmed Page 5 of 1711. On the other hand, Ld. SPP for complainant argued that as per report of Director, CFL, the sample was found not conforming to the standards of Red Chillies Powder as per PFA Rules and the report of Director, CFL being conclusive, supersedes the report of Public Analyst and, therefore, the accused cannot be given benefit of variations in the report of Public Analyst and Director, CFL and he is liable to be convicted.
12. All the witnesses examined by the prosecution have deposed as per the averments made in the complaint.
13. PW2 FI Sh. S.B. Sharma who conducted the sample proceedings in the present case deposed in his examinationinchief that on 20.07.2001, he along with FI A.K. Singh under the supervision of SDM/LHA Sh. A.K. Singh, visited the premises of M/s Masala Chakki, 18/36, Dr. Ambedkar Nagar, New Delhi, where accused Farid Ahmed was found conducting the business of chakki having stored food articles including Red Chilly Powder for sale for human consumption, which was contained in an open gunny bag stitched with sutli, having a label declaration of same lot irrelevant to the article in question. He further deposed that after giving his introduction to accused, he intended to purchase a sample of Red Chilly Powder for analysis to which accused agreed and thereafter at about 5.00 PM he purchased 600 gms of Red Chilly Powder from accused on payment of Rs. 14.40/ vide vendor's receipt Ex. PW1/A, after properly mixing the same with the help of a clean and dry jhaba in the aforesaid gunny bag by rotating it in all possible directions. He further deposed that thereafter he divided the sample CC No. 198/02 DA Vs. Farid Ahmed Page 6 of 17 into three equal parts by putting them into three clean and dry bottles and each sample bottle was separately packed, fastened and sealed according to PFA Act and Rules. He further deposed that he prepared Notice in From VI Ex. PW1/B and Panchnama Ex. PW1/C and a copy of notice was also given to the accused and all the aforesaid documents were read over and explained to the accused who after understanding the same signed the same. PW2 further deposed that on 23.07.2001, one counterpart of the sample in intact condition was deposited with the PA and remaining two counterparts were deposited with the LHA on the same day. He further deposed that report of PA was received according to which the sample was found adulterated and thereafter he conducted further investigation and after completion of investigation by him, the complete case file was sent to the Director (PFA) who accorded requisite consent for launching prosecution against the accused and accordingly present complaint was filed by FI Raj Pal Singh and thereafter intimation letter along with PA's report was sent to the accused through registered post. PW2 further deposed that after taking the sample, the remaining red chillies powder approximately 56 Kg was seized from the gunny bag, out of which the sample was taken and the other gunny bag containing approximately 47.5 Kg. of red chillies powder was also seized and as per direction of the court, same was deposited with the concerned LHA, which was further deposited with the storekeeper of the PFA department as per direction of SDM/LHA.
CC No. 198/02 DA Vs. Farid Ahmed Page 7 of 1714. During his deposition, PW2 also placed on record the receipt showing deposition of one counterpart of the sample with Public Analyst as Ex. PW2/A, letter sent by accused to Director, PFA claiming that he is the sole proprietor of chakki in question and that his chakki was not registered with sales tax department as Ex. PW2/B, copy of license sent by accused in the name of his later father as Ex. PW2/C, copy of death certificate of father of accused as Ex. PW2/D, statement sent by accused of one Muninder Kumar as Ex. PW2/E, reply of STO, Ward No. 95 as Ex. PW2/F and seizure memo vide which two bags of red chilly powder were seized as Ex. PW2/G.
15. PW1 Sh. A.K. Singh, the then SDM/LHA corroborated the testimony of PW1 in his examinationinchief and has placed on record the vendor's receipt by which price of sample was paid to the accused as Ex. PW1/A, notice in Form VI and Panchnama prepared at the spot as Ex. PW1/B & Ex. PW1/C respectively, receipt showing deposition of two counterparts of sample with him as Ex. PW1/D, report of Public Analyst as Ex. PW1/E, consent given by the Director, PFA for initiating the prosecution against the accused as Ex. PW1/F, copy of intimation letter sent to the accused along with PA report as Ex. PW1/G, photocopy of postal registration receipt as Ex. PW1/H and report of Director, CFL as Ex. PW1/J.
16. PW3 FI Raj Pal Singh in his examinationinchief stated that Director, PFA Sh. K.S. Wahi accorded the sanction Ex. PW1/F and authorized him to file the complaint and accordingly he filed complaint Ex. PW3/A. He further deposed that intimation letter Ex. PW1/G along with the PA report was CC No. 198/02 DA Vs. Farid Ahmed Page 8 of 17 sent to accused by registered post which was not received back undelivered.
17. PW4 FI Sh. A.K. Singh, who had accompanied the raiding party and was made a witness in the sample proceedings has deposed more or less on the similar lines as deposed by PW1 and PW2 in their examination inchief regarding the sample proceedings.
18. PW1 in his crossexamination after charge stated that the bag from which the sample was taken was containing the commodity about ¾ of the gunny bag. He further stated that the gunny bag from which the sample was taken was lying tied with the help of a string (Sutli), at the time when they visited the premises of the accused. He further stated that he does not remember if the accused had sent one representation to the Director, PFA to the effect that the commodity out of which the sample was taken, was left with him by his customer Muninder Kumar, for grinding. He further does not remember as to if along with the representation, the said Muninder Kumar had given his written note to the effect that the commodity out of which the sample was taken, belonged to him which is Mark X. He also does not know as to if the accused was not carrying on the business of selling the Chilly Powder and was carrying on the business of grinding the Chilly Powder. He denied the suggestion that there was already some contamination of the colour in the Jhaba when it was used in sample proceeding.
19. PW2 in his crossexamination stated that accused sent a representation to the department after three months from the date of sampling. He admitted that vendor mentioned in the representation that he used to grind CC No. 198/02 DA Vs. Farid Ahmed Page 9 of 17 the spices on labour basis. Voluntarily, he stated that the representation of the vendor was contrary to his endorsement made on the Notice in Form VI Ex. PW1/B at the spot and was after thought as it was given after three months. He further stated that no statement Mark X of Maninder Kumar was received along with the representation. He denied the suggestion that accused had no concern with the sample commodity and the rawmaterial was supplied by one Maninder Kumar to accused for grinding. He admitted that in case of representative sample, if starch is found by one Analyst, normally, it should be found present by another Analyst.
20. PW3 in his crossexamination denied the suggestion that representative sample was not taken. PW4 in his crossexamination stated that he cannot say that if two Analysts analyzed the representative sample, the percentage of nonvolatile substance would be identical by both the Analysts. He further could not say that if there is variation about 10% in nonvolatile substance, it is indicative of the fact either sample was not representative or different samples were sent to different Analysts. He denied the suggestion that two different samples were sent to two Analysts. He further denied the suggestion that Red Chillies Powder was lying for grinding by some customers. He could not say that vendor was charging only grinding expenses.
21. The accused in his statement recorded U/s 313 Cr.P.C. has not disputed the fact that on 20.07.2001 at about 5.00 PM, he was found present at the premises of M/s Masala Chakki, 18/36, Dr. Ambedkar Nagar, New Delhi of which he is the sole proprietor, from where a sample of 'Red Chilly Powder' CC No. 198/02 DA Vs. Farid Ahmed Page 10 of 17 was lifted from him which on being analyzed by the Public Analyst as well as Director, CFL was found to be adulterated. However, it was contended by accused that at his Masala Chakki, grinding is done at labour rate basis on the material brought by the customers and no sale is conducted at the above said premises. He further contended that Red Chillies bags were not belonging to him and Chillies bags belong to one Moninder Kumar who had brought it for grinding. He denied that price of sample was paid to him and contended that his signatures were obtained under duress that in case he does not sign, his Masala Chakki will be sealed. It was further contended by accused that FI adopted wrong method of mixing as it was not possible to thoroughly mix the contents of the bag containing chillies powder with the help of a small Jhaba as size of the bag was much more than the size of the Jhaba and therefore PA's report on the basis of nonrepresentative sample is not reliable.
22. The present case has been launched against the accused on the basis of report of Public Analyst which has been proved on record as Ex. PW1/E. The Public Analyst vide its report Ex. PW1/E found the sample lifted from the accused adulterated on account of presence of foreign starches and detection of unpermitted oil soluble colouring matter. The accused on appearing exercised his right u/s 13 (2) of the PFA Act and accordingly second counterpart of the sample selected by accused was sent to the Director, CFL, Pune, who after analyzing the second counterpart of the sample also found the sample not conforming to the standards of 'Chillies Powder' vide his certificate dated 11.03.2003 as extraneous synthetic oil soluble colours Viz. red and CC No. 198/02 DA Vs. Farid Ahmed Page 11 of 17 orange were detected.
23. From the crossexamination of PWs and the statement of accused recorded U/s 313 Cr.P.C., the defence of the accused appears to be that at his Masala Chakki, no sale is conducted and only grinding is done at labour rate basis on the material brought by the customers. The accused has tried to disown the sample commodity stating that Red Chillies bags from which the sample was lifted in the present case did not belong to him, but they belonged to one Sh. Munender Kumar who had brought the same at his chakki for grinding.
24. It is not in dispute that at the time of sample proceedings, among other documents, notice in Form VI Ex. PW1/B was prepared at the spot by the Food Inspector, wherein details of sample commodity were reproduced by the Food Inspector. Copy of the said notice Ex. PW1/B was also received by the accused. Perusal of notice in Form VI Ex. PW1/B shows that there is endorsement made by the accused to the effect that this Chilly Powder were of the same lot and ready for sale. Meaning thereby, the accused had not disputed the sale of the sample commodity at the time of sampling and duly signed the notice in Form VI Ex. PW1/B after making the aforesaid endorsement.
25. Though, accused has taken a plea in his statement U/s 313 Cr.P.C. that his signatures were obtained on the documents under duress that in case he does not sign, his masala chakki will be sealed. But, the accused has not made any protest or complaint to the PFA Department or any other CC No. 198/02 DA Vs. Farid Ahmed Page 12 of 17 Government department to the effect that his signatures were obtained on the documents under duress. The accused has also not led any evidence to this effect.
26. In support of his claim that no sale is conducted and only griding is done at his chakki, accused had also produced one letter of one Munender Kumar dated 23.07.2001, which is Mark X, wherein it was claimed by said Munender Kumar that the red chillies powder, sample of which was lifted in the present case belonged to him and he had sent the raw material to the chakki of accused for grinding purposes and he used to pay only grinding charges to the accused. But, the accused has not produced the said Munender Kumar in the witness box to prove the aforesaid claim made by Munender Kumar in his letter Mark X. The said Munender Kumar was the best witness to prove the fact that red chillies bags, from which the sample was lifted belonged to him and he used to send the raw material to the chakki of accused for grinding purposes and used to pay only griding charges to the accused for the same. But, the accused has withheld the said witness without any explanation for not examining him. In the absence of any evidence, the contention of the accused that he was not in the business of sale of Red Chillies Powder, but grinding is done at his chakki at labour rate basis on the material brought by the customers, remained unsubstantiated and it is held that accused was found conducting the business of Red Chillies Powder, sample of which was lifted in the present case on 20.07.2001, when a raid was conducted by PFA team at his chakki.
CC No. 198/02 DA Vs. Farid Ahmed Page 13 of 1727. Now, coming to the contention of the accused that a representative sample was not lifted in the present case. As per accused, FI adopted wrong method of mixing and mixed the Red Chillies Powder with the help of a small Jhaba and it is not possible to thoroughly mix the contents of the bag containing chillies powder with the help of a small Jhaba as size of the bag was much more than the size of the Jhaba.
28. Admittedly in the present case, Red Chillies Powder was homogenized with the help of a small Jhaba in the gunny bag itself. As per PW2 Sh. S.B. Sharma, who conducted the sample proceedings in the present case, after taking the sample the remaining red chillies powder approximately 56 Kg was seized from the gunny bag. Meaning thereby, the capacity of the gunny bag in which the Red Chillies Powder was lying and from which the sample was lifted was approximately more than 56 Kg. Therefore, I find considerable force in the contention of the accused that the entire Red Chillies Powder cannot be properly homogenized in a gunny bag, capacity of which is more than 56 Kg. with the help of a small Jhaba. Hence, it cannot be said that a representative sample was lifted in the present case.
29. A representative sample was not lifted in the present case is further substantiated from the variations in the reports of Public Analyst and Director, CFL in respect of material parameters of the sample commodity. In the sample sent to the Public Analyst, 'moisture' was 5.54%, whereas in the sample sent to the Director, CFL, 'moisture' was found to the extent 5.7% and as such there is variation upto 0.16%. Similarly, as per report of Public Analyst CC No. 198/02 DA Vs. Farid Ahmed Page 14 of 17 (PA) Ex. PW1/E, 'Total Ash' was found to the extent of 6.26%, whereas it was 6.6% as per report of Director, CFL. Again, 'Ash insoluble in dil HCL' was 1.03% as per report of Public Analyst, while it was 0.5% as per report of Public Analyst and the variation was upto 0.53%. Further, 'Non volatile ether extract' was 22.71% and 'Crude fibre' was 22.79% as per report of Public Analysit, Whereas, Director, CFL found 'Non volatile ether extract' upto 12.6% and 'Crude fibre' upto 21.6% and as such there are variations upto 10.11% in respect of 'Non Volatile ether extract' and upto 1.19% in respect of 'Crude fibre'. It is also to be noted that Public Analyst vide its report Ex. PW1/E found the presence of foreign starches in the sample, which is one of the ground of adulteration found by the Public Analyst in the sample. However, the Director, CFL after examining the second counterpart of the sample has nowhere found the foreign starches in the sample and it shows that reports of both the Analysts are not only at variance, but are contradictory to each other.
30. The aforesaid variations in the report of both the Analysts are beyond the permissible limit of .3% and it lends credence to the contention of the accused that the sample was not properly mixed up and hence it cannot be said to be representative sample. In State Vs. Rama Rattan Malhotra 2012 (2) FAC 398 after relying upon various judgments titled as Kanshi Nath Vs. State 2005(2) FAC 219 and State Vs. Mahender Kumar & Ors, 2008 (1) FAC 177, the Hon'ble High Court of Delhi held that, "Since in the present CC No. 198/02 DA Vs. Farid Ahmed Page 15 of 17 case, variation in public analyst and CFL certificates is more than .3%, it would clearly imply that samples in the present case were not representative.". In Kanshi Nath Vs. State (Supra) even while certain other contentions of the accused were rejected, the contention concerning the samples sent to the two test labs not being representative was accepted and the accused were acquitted. In this judgment after referring to the judgment of Calcutta Municipal Corporation Vs. Pawan Kumar Saraf 1999(1) FAC 1 and Municipal Corporation of Delhi Vs. Bishan Sarup 1972 FAC 273, the Hon'ble Delhi High Court has observed that, "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". In State Vs. Mahender Kumar & Ors. (Supra) it has been observed that, " While both reports have concurred in the conclusion that the sample was adulterated, the variation in the material parameters in the sample sent to each of them is not insignificant. In the sample sent to the Public Analyst the ash content is 4.04% whereas in the sample sent to the CFTRI it is 6%. The ash insoluble in dilute HCL is 2.55% in the sample sent to the Public Analyst whereas it is 1.95% in the sample sent to the CFTRI. The lead content is Nil in the first and 5.4 ppm in the second. These variations are more than y.3% which is stated to be the permissible limit. It cannot therefore be said that identical representatives samples were sent to both the Public Analyst as well as the CFTRI".
CC No. 198/02 DA Vs. Farid Ahmed Page 16 of 1731. Similarly, It has been held by the Hon'ble Delhi High Court in M/s Raja Ram Seth & Sons & Anr. Vs. Delhi Administration 2012 (2) FAC 523 that, "If the variations in the report of PA and CFL is more than 0.3 % which is stated to be permissible limit, it cannot be said that identical representative samples were sent to both the Public Analyst and CFL and therefore it raises a doubt about the sample of being not homogenized and no conviction is permissible on the basis of said reports and benefit of doubt is liable to be given to the accused." Similar view has been taken by the Hon'ble High Court of Delhi in State (Delhi Administration) Vs. Ram Singh & Ors. 2009 (1) FAC 371. Reliance may also be placed upon State Vs. Suresh Kumar & Anr. 2010 (2) FAC
204.
32. In view of law laid down in the aforesaid authorities, since there are huge variations in the report of Public Analyst (PA) and Director, Central Food Laboratory, which are beyond the permissible limit of .3 %, it can be safely inferred that sample lifted in the present case was not representative one and on the basis of unrepresntative sample, accused cannot be convicted. Hence, accused is acquitted of the charges leveled against him.
File be consigned to Record Room.
Announced in the open Court (Balwant Rai Bansal)
on 18th November, 2013 ACMMII/ PHC/ New Delhi
CC No. 198/02
DA Vs. Farid Ahmed Page 17 of 17
CC No. 198/02
DA Vs. Farid Ahmed
18.11.2013
Present: Sh. Masood Ahmad, Ld. SPP for complainant.
Accused with counsel Sh. M.L. Narang
Vide my separate Judgment of even date dictated and announced in the open court, accused stands acquitted of the charges leveled against him. Previous Bail Bond / Surety Bond stands cancelled. Surety stands discharged. Endorsement on the documents of the previous surety, if any, be cancelled.
Accused is directed to furnish fresh bail bonds in compliance of Section 437A Cr.P.C. He has furnished the B/B & S/B in the sum of Rs. 20,000/ each. Same is accepted.
File be consigned to Record Room.
(Balwant Rai Bansal) ACMMII/PHC/ND/18.11.2013 CC No. 198/02 DA Vs. Farid Ahmed Page 18 of 17