Delhi District Court
Sh.Manohar Lal S/O Sh.Raja Ram vs The State on 11 November, 2011
:1:
IN THE COURT OF SH. J. R. ARYAN
ADDITIONAL SESSIONS JUDGE, NEW DELHI
Date of Institution: 05.07.2011
Date of judgment reserved on: 09.11.2011
Date of decision: 11.11.2011
CA No. 42/11
IN THE MATTER OF:
Sh.Manohar Lal S/o Sh.Raja Ram
32/128, Bhikam Singh Colony,
Delhi. ..... Appellant
Versus
The State
(Govt. of NCT of Delhi.) ...... Respondent
JUDGMENT:
1. Appellant Manohar Lal convicted U/s 7/16 of the PFA Act vide conviction judgment dated 2.5.2011 and sentenced to R.I for one year with a fine of Rs.15,000/ and with further default sentence has challenged conviction in this appeal. Both sides have been heard wherein counsel Sh. Prashant Jain appeared for the appellant and Mr.A.K.Padhy represented department of PFA NCT, Delhi. Conviction in this case was in respect of dal arhar sample reported adulterated on account of presence of coal tar colour tartrazine.
2. Facts from trial court record revealed that a team of PFA officials headed by SDM/LHA Sh.S.K.Tyagi visited a premises M/s Manohar Lal, 32/128 Bhikam :2: Singh Colony, Delhi32 where accused Manohar Lal was conducting business in food articles stored for sale and one such food article was dal arhar stored in an open gunny bag bearing no label declaration. 1500 grammes of dal arhar was lifted as sample, divided in three parts by following the sampling procedure as per PFA Rules. One sample examined by Public Analyst was reported adulterated as found coloured with synthetic colouring matter tartrazine. Sanction for prosecution was obtained and with the filing of the prosecution intimation along with copy of the Public Analyst Report was sent by registered post. No further right of getting counterpart sample examined from CFL was exercised by the accused. Prosecution examined its evidence comprising food inspector Food Inspector S.B Sharma PW1, F.I Ranjit Singh as PWQ3 and LHA Sh. S.C.Tyagi as PW2. Conviction judgment reveals that defences prosecuted by accused were,
1. Accused in fact did not receive intimation and Public Analyst report which caused a serious prejudice to his valuable right U/s 13 (2) of the Act.
2. Sample had failed due to wrong sampling.
3. Colour found in the article could be an act of manufacturer/whole seller.
4. Absence of joining of any public persons as a witness was a prejudice and violation of Section 10 (7 ) of the Act.
All these defence contentions were dealt with and found unacceptable and accordingly accused was convicted.
3. Besides reiterating those defence pleas ld appellant counsel referred :3: to a contention pleaded in para (i) of the grounds of appeal and this plea is sought to be supported from a judgment by Kerala High Court in a case K.V Devassi Kutty Vs Food Inspector. Counsel submitted that where synthetic food colour tartrazine was one of the permitted colour as per PFA Rules, Rule 28, not only it would not by itself render food article adulterated in the absence of further findings as regards its quantity weight or proportion by way of percentage whereby presence of colour rendered the food article to be described injuriously affected in nature, substance or quality, the test adopted for detecting this food colour in the sample article namely a paper chromatographic test was not a well recognised scientific method and such a test could not be accepted for a conclusive finding of presence of nonpermitted colour. Ld counsel in this regard referred to Public Analyst report Ex.PW1/G which showed that sample article Dal Arhar falling under item No. A.18:06:09 of appendix B of the PFA Rules when examined it showed presence of artificial colouring matter identified as tartrazine and method of testing as per this report was ''chromatography method''. Sample article satisfied rest of parameters of the standard for Dal Arhar and finally report was given that sample was adulterated as coloured with synthetic colouring matter tartrazine. Counsel submitted that since chromatographic test has been found as unacceptable as a conclusive scientific test as held in K.B.Devasikutty's case then conviction could not be sustained.
4. Ld counsel further relied upon Delhi High Court judgment reported as :4: State Vs Dwaraka Dass 2007 (1) FAC 229 in support of his argument that in the absence of quantity weight, proportion by way of percentage of synthetic colouring in the sample article, a necessary inference was to be drawn that it was negligible and would not amount to cause prejudice to a buyer as regard nature substance or quality of the said article or injuriously affected the nature substance quality of the article. In the reported case of Dwaraka Dass sample of Kalimirchi(black pepper) was reported adulterated on account of presence of mineral oil. Acquittal judgment was found non interferable when a CFL report had not specified if mineral oil was foodgrade or nonfoodgrade. It was further held that percentage or proportion of weight of mineral oil had not been given in the report. Use of mineral oil was permissible in some confectionaries and had not been specifically prohibited to be used in black pepper whole. Reliance was placed upon Khushi Ram Vs State and Anrs 1984 (2) FAC 256 and acquittal judgment was upheld.
5. Ld APP on this point argued that when standard for Dal arhar as provided under item A.18.06.09 specifically provided that food article shall be free from any colour then presence of synthetic colour irrespective of its weight or percentage being contrary to the prescribed standard would render article as adulterated. He further argued that mineral oil in black pepper could be considered as a preservative but adding the synthetic colour in a food article dal was to lure a customer and the objective being ulterior the selleraccused may not claim protection on the analogy of :5: Dwaraka Dass case. I have given my consideration to these contentions.
6. While deciding another appeal CA No.45/11 this court quoted from Khushi Rams case while accepting the contention of appellant and finally that appeal has been allowed. Findings from Khushi Ram's case is quoted as below;
''It is a matter worthy of note that in the Director's report that what is pointed out in regard to the mineral oil is that the tests for mineral oil were positive in the sample meaning thereby that mineral oil was present in the sample. But the report of the Director no where shows the quantity weight or proportion by way of percentage of the mineral oil in the sample of 'bari Elaichi'. So it is the addition of a substance to 'Bari Elaichi', but notwithstanding that on account of the aforesaid omissions regarding quantity, weight and proportion of mineral oil in the sample it is possible that the presence thereof in the sample may be just negligible so as to cause no prejudice to the purchaser as contemplated in Section 2 9ia) (a) nor is there any evidence whatsoever on the records of the case to show that its presence in the sample could affect injuriously the nature, substance or quality of the sample of 'Bari Elaichi' as contemplated in Section 2 (ia) (b). The Director B.R Roy had been called by the learned trial court as PW.6 for cross examination by the accused wherein he conceded that he had not categorised the type of mineral oil presence of which was noticed in the sample. He further stated that in the "Elaichi' whole seed is the only edible portion and on going through his report Ex.CX he could not categorically say that the seeds were unfit for human consumption. From this cross examination of the Director the question of prejudice or injurious effect of the presence of the mineral oil in the sample stands disproved. The learned Magistrate has also exonerated the petitioner on this count.''
7. Analogy in above findings applies to the case in hand also and it makes no difference if mineral oil in sample bari elaichi was to be considered as a preservative or that tartrazine colour was to make article :6: Arhar Dal concerned a better look in appearance. Tartrazine is one of the permitted synthetic colour to be used in articles specified in Rule 29. Though Dal Arhar is not one of those permitted food articles for use of that colour but then in the absence of findings by the Public Analyst that presence of this colour in sample article was to an extent as to render it not of the nature, substance or quality demanded by the buyer and was to the prejudice of the buyer or that presence of colour was to an extent that it injuriously affected nature, substance or quality of the article, it could be taken to be negligible about its presence in sample article. This aspect has not been examined by ld MM in the conviction judgment, though which appears not to have been raised before him but then being a legal point it was permissible to be considered in appeal also. Appellant counsel placed reliance on Punjab & Haryana High Court judgment reported as Bansi Lal Vs State of Haryana 1993 (1) FAC 117 in support of the argument that photochromatic test could not be accepted as a surest for the presence of permitted matanil yellow coal tar dye in sample article dal arhar. This judgment also provides support to the arguments of defence counsel in this case. In K.B.Devassi Kutty's case criminal revision No.742 of 2001 decided on 5.12.2008 a conviction recorded by courts below in a case of sample article de husked split grain of green gram dal found colour with coal tar food colour tartrazine was found unsustainable on a findings that CFL report did not indicate what test was conducted to detect presence of tartrazine. This judgment coupled with judgment by Punjab & Haryana :7: High Court in Bansi Lal's case provided a valid support to the arguments of ld defence counsel.
8. Ld defence counsel argued another point that when the Public Analyst took up examination of the sample article for analysis on a particular date but then recorded his report and signed it after a few days then such a report loss its evidentiary value. Counsel relied upon Gujrat High Court judgment reported in a case Babubhai Ranchhodbhai Chauhan Vs State of Gujrat Criminal Revision No.2936 of 1995 decided on 19.03.1996. It has been held in this case, ''Counsel urges that when the analysis was made on September 01, 1989 and when the Report came to be signed only on September 08, 1989, the Report would lose the evidentiary value. In support of this contention learned counsel places reliance upon the decision rendered by this court in criminal appeal No.200 of 1987 decided on February 24, 1994 (Coram: N.N.Mathur, J). Placing reliance upon a decision rendered by the Division Bench of the High Court of Bombay, this court has taken the view that if the Report of the Public Analyst was not made at the same time when the sample was analyzed but was made later on, then the basis of the notes of the analysis was made.''
9. In the present case the Public Analyst report eEx.PW1/G shows that analysis of this sample was started on 2.4.2003 and it completed on 4.4.2003 but then the report is signed on 10.4.2003. The judgment provides due support to this contention of defence counsel.
10. In view of the analysis of the evidence and material brought by the prosecution in this case I find that Ld MM failed to examine these aspects :8: conviction judgment suffers illegality in nonexamination of all these aspects and cannot be sustained. Appeal is accepted. Conviction judgment is set aside. Accused is acquitted of the charge.
Announced in the Open (J.R.ARYAN) court on 11.11.2011. ADDITIONAL SESSIONS JUDGE (01) NEW DELHI DISTRICT, NEW DELHI :9: CA No. 42/11 Manohar Lal Vs The State 11.11.2011 Present: Appellant in person with counsel Sh.A.K.Padhy, Chief Prosecutor for deptt. of PFA.
Vide separate judgment appeal allowed and conviction judgment is set aside. Copy of judgment and trial court record be sent to the Ld trial court. Appeal file be consigned to record room.
(J.R.ARYAN) ADDITIONAL SESSIONS JUDGE (01) NEW DELHI DISTRICT, NEW DELHI 11.11.2011.