Delhi District Court
Ashok Arora vs The State on 28 February, 2012
-1-
IN THE COURT OF MS. NEENA BANSAL KRISHNA :
ADDITIONAL SESSIONS JUDGE-01 : NEW DELHI
In re :
CA No. 59/11
Ashok Arora
S/o Sh. Paras Ram
M/s Goldee Store,
1663, Chawla Bus Stand,
Najafgarh, New Delhi. ..... Petitioner
versus
The State
[Govt. of NCT of Delhi] ..... Respondent
Date of institution of the appeal : 30.09.2011
Date of reserving judgment/order : 14.02.2012
Date of judgment / order : 28.02.2012
JUDGEMENT :
1. This appeal u/s 374 Code of Criminal Procedure has been preferred against the judgment dated 03.09.2011 and order on sentence dated 19.09.2011 of Shri Raghubir Singh, Ld. ACMM-II, New Delhi, in complaint case no. 69/98, vide which the appellant has been convicted for offences punishable u/s 16 (1) r/w Section 7 of Prevention of Food Adulteration Act, 1954 (hereinafter referred to as the Act ) and sentenced the appellant to undergo rigorous imprisonment for six months and to pay a fine of Rs.10,000/-, in default to undergo further simple imprisonment for 10 days.
2. The facts in brief as stated in the complaint dated CA No. 59/11 Page No. 1 of 8 -2- 28.08.1998 were that on 06.08.1998 at about 02.30 p.m. a sample of "Mustard Oil" was taken by Food Inspector Sh. Pawan Bhatnagar from the appellant Ashok Kumar from his store where the said food articles were found stored for sale and the appellant was found conducting the business of the said food articles at the time of sampling. The three samples were prepared as per the requirement of PFA Rules and one counter-part of the sample was sent to Public Analyst, Delhi, who, after analysis, gave his report dated 11.08.1998 that "
the sample does not conform to the standards laid down under Item No. A.17.06 of Appendix 'B' of PFA Rules, 1955 because the sample showed the presence of "argemone oil". The complaint was filed in the Court after due investigations and the appellant was summoned vide order dated 28.08.1998. He exercised his right and option u/s 13 (2) of the Act and the counter-part and the sample was sent to the CFL. The Director, CFL vide his report dated 05.11.1998 opined that the sample of "Mustard Oil" was adulterated.
3. Charge for the violation of provisions of S. 2 (i0a)
(a) & (m) of the PFA Act, 1954, punishable u/s 16 (1), r/w S. 7 of the Act of 1954 was framed upon the accused vide order dated 23.09.1998, to which he pleaded not guilty and claimed trial.
4. Two witnesses were examined by the prosecution. The appellant after recording of his statement u/s 313 Cr.PC examined one witness Sh. S. N. Mahendru.
5. Ld. Trial Court after considering evidence concluded that the sample of "Mustard Oil" was adulterated CA No. 59/11 Page No. 2 of 8 -3- and accordingly convicted and sentenced the appellant.
6. Aggrieved by the said conviction the present appeal has been filed.
7. The ld. Counsel on behalf of the appellant has argued that even though the presence of argemone oil has been detected, both by the Public Analyst as well as Director, CFL, but no percentage of the quantity of oil present in the sample has been indicated. In the absence of percentage of argemone oil in the sample, it cannot be concluded that the mere presence of argemone oil made the sample injurious to the health and unfit for human consumption. Thus, the appellant is entitled to be acquitted.
8. The Ld. Special PP on behalf of the department/respondent has argued that the simplicitor presence of argemone oil made the sample adulterated as it is not in the conformity of the prescribed standard and thus, the conviction cannot be set aside.
9. I have heard the arguments and perused the record.
10. My observations are as under :
11. To appreciate the contentions of parties it would be relevant to reproduce the relevant part of the report of the Public Analyst and CFL report, which are as under :
"REPORT BY THE PUBLIC ANALYST :
..............
.............
ANALYTICAL DATA :
1 B. R. at 40 Deg C : 60.0 CA No. 59/11 Page No. 3 of 8 -4- 2 Iodine Value : 109.06 3 Saponification value : 175.21 4 Acid Value : 1.13 5 Baudoin's Test : Neg. 6 Test for cotton seed oil : Neg. 7 Test for argemone oil : Positive 8 Polybromide Test : Neg. 9 Test for castor oil : Neg. 10 Test for mineral oil : Neg. 11 Test for HCN : Neg.
12 Test for synthetic colouring: Neg.
matter 13 Test for ToCP/TCP : Neg. 14 B.T.T. (Acetic acid method): 26.2 Deg C OPINION : The sample does not conform to the standards laid down under item No. A. 17.06 of Appendix 'B' of PFA Rules, 1955 because the sample shows presence of argemone oil."
----
"(Certificate of test or analysis by the Central Food Laboratory) Physical Examination :
Moisture :
Butyrorefractometer reading : 59.7
at 40 Deg (C)
Saponification value : 180.8
Iodine Value : 106.2
Acid Value : 2.04
Bellier test : 29.0 Deg C
(Turbidity temperature-acetic method) Baudouin test (for sesame oil) : Negative Polybromide test : Negative Test for mineral oil : Negative Test for Cottonseed oil : Negative Test for Argemone oil by T.L.C. : Positive Test for Hydrocyanic acid : Negative Test for Castor oil by T.L.C. : Negative CA No. 59/11 Page No. 4 of 8 -5- Phosphorus :
Test for Tri-Ortho-Cresyl Phosphate :
Cloud Point :
Flash Point (Pensky-Marten closed method):
Added colouring matter : Absent"
OPINION : The sample of "Mustard Oil" is adulterated".
12. There was barely a gap of three months in the two reports. However, there is a marked difference in the saponification value, which has been given in the Public Analyst report Ex.PW1/F as 175.21 while in the CFL report it is indicated as 180.8. Likewise, the iodine value in Public Analyst report is 109.56 while in CFL it is 106.2. Similarly, the BTT value in Public Analyst report is given as 26.2 Deg (C), in CFL Report it is 29Deg (C). There is thus huge variations in the various values in the two reports despite the tests having been conducted by CFL within a period of three months.
13. The implication of such huge difference in the values in the two reports has been considered in the case of "MCD v. Ghisha Ram, AIR 1967 SC 970", wherein it was held that even after the certificate of CFL, it is open to the accused to show that in the facts of the given case and on the concrete objective grounds that the sample sent for analysis to the Director could not have been taken to a representative sample of the article of food from which it is taken and if this contention is found to be correct, conviction passed on the Certificate will not be sustainable.
14. This judgment has been endorsed by the Hon'ble CA No. 59/11 Page No. 5 of 8 -6- High Court of Delhi in cases "Kanshi Nath v. State, 2005 (2) FAC 219 Delhi High Court", "MCD v. Bishan Swaroop, 1972 FAC 273 Full Bench Delhi High Court" and in "Criminal Appeal No. 1158 (2007) vide Judgment dated 08.09.2011".
15. In a case titled "State v. Mahender Kumar & Ors., 2008 (1) FAC 177" again a reference was made to the case of "Kanshi Nath" and it was reiterated that if on comparison of the report of Public Analyst and the CFL unacceptable variations are shown in two samples then it cannot be said that the samples were representative and the accused would be entitled to an acquittal.
16. Therefore, the huge variations in these values which have been found in the report of the Public Analyst and in the report of CFL indicate that the two samples were not representative in nature and the benefit of the same has to be extended to the accused/appellant.
17. The other 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 sample has been taken in the year 1998 when the said prescribed standard was not in existence. Therefore, the percentage of Argemone Oil to determine whether it was injurious to health was essential.
CA No. 59/11 Page No. 6 of 8 -7-18. In view of this, mere presence of "argemone oil"
would not make the sample adulterated unless it is further shown that it is injurious to health or prejudicial to the consumer, for which its percentage should have been mentioned.
19. 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 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, 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.
CA No. 59/11 Page No. 7 of 8 -8-20. 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.
21. 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 the percentage in which Argemone Oil was found to be present has not been given simplicitor presence of this oil would not make the sample of "Mustard Oil" to be adulterant.
22. In view of the above discussion, the appeal is hereby allowed. Conviction is hereby set aside and the appellant is acquitted. Bail-bond and surety bond stand discharged.
23. Trial Court Record be sent back alongwith the copy of this order.
24. Appeal file be consigned to the Record Room. Announced in the open Court on this 28th Day of February,2012.
(Neena Bansal Krishna) ASJ-01/PHC/New Delhi CA No. 59/11 Page No. 8 of 8