Delhi District Court
Additional Sessions Judge-01 : New ... vs The State on 6 February, 2012
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IN THE COURT OF MS. NEENA BANSAL KRISHNA :
ADDITIONAL SESSIONS JUDGE-01 : NEW DELHI
In re :
CA No. 11/11
Khalid Hasan v. State
1 Ratan Lal Gupta
S/o Sh. Ram Swaroop
M/s Musaddi Lal Ram Swaroop,
189, Naya Bans, Delhi-06
(Discharged vide order dated 03.10.12001)
2 Company M/s Swastik Fragrances
1711, S. P. Mukherjee Marg,
Delhi
3 Khalid Hasan
S/o Shri Mohd. Jamil,
M/s Swastik Fragrances
1711, S. P. Mukherjee Marg,
Delhi ..... Petitioners
versus
The State
[Govt. of NCT of Delhi] ..... Respondent
Date of institution of the appeal : 01.03.2011
Date of reserving judgment/order : 25.01.2012
Date of judgment / order : 06.02.2012
JUDGMENT :
1. This appeal u/s 374 Code of Criminal Procedure has been preferred against the judgment dated 08.12.2011 and order on sentence dated 11.02.2011 of Ld. ACMM-II, New Delhi, vide which the appellant has been convicted for offences CA No. 11/11 Page No. 1 of 12 -2- punishable u/s 7 r/w Section 16 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 are that on 27.05.1999 at about 05.15 p.m. Food Inspector Sh. O. P. S. Ahlawat under the supervision and guidance of Sh. G. Sudhakar Rao, the then LHA / SDM purchased six boxes containing 100 gms each of "Flavoured Pan Masala", from Sh. Ratan Lal of M/s Musaddi Lal Ram Swaroop, 189, Naya Bans, Delhi, where the said food article was found stored for sale. The Food Inspector divided the sample into three equal parts by putting them in three separate clean and dry glass bottles, which were separately packed, fastened and sealed as per the requirements. One sample was sent to Public Analyst, who found the sample was not conforming to standards prescribed under the PFA Act and Rules.
3. During the investigations it was found that the Ratan Lal Gupta was the vendor-cum-proprietor of M/s Musaddi Lal Ram Swaroop and the food article was purchased from M/s Swastic Fragrances and Sh. Khalid Hasan was the nominee of the said firm and was also the in-charge and responsible for the business of the firm. Thus, the accused were alleged to have violated the provisions of Section 2 (ia) sub clause (a) (b)
(c) and (m) of the Act of 1954, punishable u/s 16 (1) (a) read with Section 7 of the Act.
CA No. 11/11 Page No. 2 of 12 -3-4. The complaint was filed before the Ld. ACMM after the consent u/s 20 of the PFA Act was accorded.
5. The accused were summoned vide order dated 01.12.1999. On appearance, accused Khalid Hasan exercised his right and option u/s 13 (2) of the Act and consequent thereto, the second counterpart of the sample was sent to the Director CFL for analysis vide order dated 01.12.1999, who gave his report dated 03.02.2000 and opined that the sample of "Flavoured Pan Masala" was adulterated.
6. Charge for the violation of provisions of Section 2 (ia) (a) (b) (c) & (m) of PFA Act, 1954, punishable u/s 16 (1) (a) of r/w Sec. 7 of PFA Act was framed against the accused nos. 2 and 3, to which he pleaded not guilty and claimed trial.
7. The accused no. 1 Ratan Lal Gupta was discharged vide order dated 03.10.2001, u/s 19 of the Act by giving the benefit of warranty to the accused.
8. The prosecution in support of its case examined two witnesses namely PW1 Sh. O. P. S. Ahlawat, Food Inspector and PW2 Sh. G. Sudhakar Rao, the then SDM/LHA.
9. Statements of the accused nos. 2 and 3 were recorded u/s 313 Cr.PC in which they pleaded their innocence and opted not to lead defence evidence.
10. Ld. ACMM concluded after making a reference to both the Public Analyst report and that of the Director, CFL, that the sample was adulterated as they contained magnesium carbonate and the content of ash insoluble on dry basis was also found not to be according to the prescribed standards, CA No. 11/11 Page No. 3 of 12 -4- convicted and sentenced the accused.
11. Aggrieved by the said conviction and sentence, the present appeal has been filed.
12. The Ld. counsel on behalf of the appellant has argued that the proper sampling procedure has not been followed by the Food Inspector. It was argued that there were huge variations in the quantity of ash insoluble on dry weight basis as found in the Public Analyst report and the Director, CFL, which shows that the two samples are not representative of each other. Moreover, the Public Analyst report has found magnesium carbonate present to the extent of 4.5%, while in the CFL report the magnesium was found to the extent of 0.02%, while the test for carbonate was found to be positive. It is submitted that the permissible ingredients of "Paan Masala" include cardamom which has magnesium in it. Moreover, the "Paan Masala" also contains the limestone another permissible ingredient, which has carbonate (CO3) as its necessary ingredient. This implies that the magnesium and carbonate were found to be present in the sample by Director, CFL on account of the permissible ingredients and by application of Rule 64 (c), which contains the doctrine of carry over, it cannot be said that the samples were adulterated. It was, thus, argued that the "Paan Masala" sample in fact was not adulterated and the appellant is entitled to be acquitted.
13. Ld. Special PP has argued that there cannot be any question of defective sampling as the samples were the sealed packets having identical label declaration. Moreover, Rule 62 CA No. 11/11 Page No. 4 of 12 -5- prohibits the addition of anti-caking agent i.e. magnesium carbonate and the presence of the same, in the sample, both by Public Analyst and Director, CFL, shows a clear violation and the Ld. ACMM has rightly concluded that the sample were adulterated. There is no merit in the appeal, which is liable to be dismissed.
14. I have heard the arguments and perused the record. My observations are as under :
15. The Supreme Court in "Dineshchandra Jamnadas Gandhi v. State of Gujarat, 1989 (1) FAC 273"
indicated the object of the PFA Act 1954, its constitutional basis and its purpose in the following observations :
"16. The object and the purpose of the Act are to eliminate the danger to human life from the sale of unwholesome articles of food. The legislation is o n the topic 'Adulteration of food Stuffs and other Goods' (entry 18 List III Seventh Schedule). It is enacted to curb the widespread evil of food adulteration and is a legislative measure for social defence. It is intended to suppress a social and economic mischief - an evil which attempts to poison, for monetary gains, the very sources of sustenance of life and the well-being of the community. .... The offence of adulteration is a socio-economic offence."
16. In "Municipal Corporation of Delhi v.
Kacheroo Mal, (1976) 1 SCC 412", Sarkaria, J. observed that:
"The Act has been enacted to curb and remedy the widespread evil of food CA No. 11/11 Page No. 5 of 12 -6- adulteration, and to ensure the sale of wholesome food to the people. It is well-settled that wherever possible, without unreasonable stretching or straining, the language of such a stature should be construed in a manner which would suppress the mischief, advance the remedy, promote its object, prevent its subtle evasion and foil its artful circumvention."
17. Guided by these principles, the facts of the present case need to be examined and analyzed. It is not in dispute that the samples of sealed packets of "Flavoured Pan Masala", were manufactured by M/s Swastic Fragrances, appellant no. 2 and appellant no. 3 Khalid Hasan was the nominee. The sample of "Flavoured Pan Masala" was analyzed by Public Analyst and subsequently by Director, CFL on the exercise of option u/s 13 (2) by appellant Khalid Hasan.
18. To appreciate the reports and the contentions of the parties, it would be appropriate to re-produce the two reports, which are as under :
Sr.No. Quality Characteristics PA Report CFL Report 1 Test for synthetic colour Negative Absent 2 Test for catechu Positive ----
3 Test for Gambiar Negative ----
4 Moisture 5.74% ----
5 Total ash on dry weight basis 5.69% 5.71% 6 Ash insoluble in dil HCl on dry weight 0.86% 0.34% basis 7 Magnesium Carbonate 4.05% 0.02% CA No. 11/11 Page No. 6 of 12 -7-
19. The comparison of these two reports show that the total ash content was found to be 5.69% in the report of Public Analyst, which was found to be 5.71% in the report of Director, CFL. The ash insoluble in dil. HCl on dry weight basis in Public Analyst report was found to be 0.86%, while in CFL report it is found to be 0.34%. Interestingly, in the Public Analyst report the "moisture content" is indicated as 5.74%, while there is no indication of "moisture content" in the CFL report. This factor is important considering that the sample was analyzed by the Public Analyst and the report given on 29.06.1999, while the Director, CFL, had given his report on 03.02.2000 i.e. after about seven months. The test of ash insoluble was on the dry weight basis in which circumstances the content of "moisture" becomes relevant factor, which is significantly not mentioned in the CFL report. There is a huge variation in the ash insoluble content in the Public Analyst report, which is found to be 0.86% i.e. beyond the permissible limit of 0.5%, while it is 0.34% as per CFL report, which is within the permissible limit. This shows while in the Public Analyst report the one reason for holding the sample to be adulterated was presence of ash insoluble in dil. HCl being more than the prescribed maximum, the said parameter of ash insoluble in dil. HCI was found to be within the permissible limit in the report of Director, CFL. This shows that there is a huge variation and in fact it amounts to a different ground for holding the sample to be adulterated in the Public Analyst report and the Director, CFL report. The only conclusion that can be drawn is that the two samples were not CA No. 11/11 Page No. 7 of 12 -8- representative of counterpart and each other.
20. This is confirmed from the fact that though the two samples were stated to be having identical label declarations as has been mentioned in Form-VI Ex.PW1/C, but it also shows that the Batch number has not been mentioned on the samples lifted. In the absence of the Batch numbers it cannot be said that the source of the contents of these samples, though in sealed bottles, was the same and this is also reflected from the difference in the report of Public Analyst and Director, CFL.
21. It is true that Section 13 (5) provides that once the option u/s 13 (2) has been exercised the report of the Public Analyst becomes redundant and cannot be looked into. However, it has been held in case titled "State v. Mahender Kumar & Ors., 2008 (1) FAC 177" 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. This judgment has been endorsed by the Hon'ble High Court of Delhi in cases "Kanshi Nath v. State, 2005 (2) FAC 219 Delhi High Court", (which has been upheld by the Supreme Court in "Criminal Appeal No. 1158 (2007) vide Judgment dated 08.09.2011")
22. Thus, from the report of the Public Analyst and Director, CFL, it can be held that the two samples were not representative of each other.
23. The Public Analyst in his report had also concluded CA No. 11/11 Page No. 8 of 12 -9- that the sample was adulterated on account of presence of magnesium carbonate which was found to be 4.05% when it is completely prohibited under the Rules. The Director, CFL, in his report has indicated that the content of magnesium present was 0.02% and test for carbonate was found to be positive. It has been rightly pointed out by the ld. counsel for the appellant that one of the declared and permitted ingredient of "Pan Masala" was cardamom of which the magnesium is a necessary component. For this ld. counsel has placed on record the photocopy of the Book on Nutritive Value of Indian Foods by C. Gopalan, B. B. Ramashastra and S.C. Balasubramanium presented by National Institution of Nutrition of Health, wherein it is clearly shown that the cardamom contains the magnesium.
24. Furthermore, the ld. counsel has placed on record a dictionary of Indian Raw Materials and National Products Vol. VI issued by National Institute of Science Council of Scientific Research, 1998, wherein it is shown that the limestone contains magnesium carbonate, which may be to the extent of 30% to 40% depending upon the quality of limestone.
25. Magnesium carbonate is an anti-caking agent, which is strictly prohibited under Rule 62 of PFA, which reads as under :
"[62. Restriction on use of anticaking agents. - No anticaking agents shall be used in any food except where the use of anticaking agents is specifically permitted:CA No. 11/11 Page No. 9 of 12
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[Provided that table salt, onion powder, garlic powder, fruit powder and soup powder may contain the following anticaking agents in quantities not exceeding 2.0 per cent, either singly or in combination, namely : -
(1) carbonates of calcium and magnesium;
(2) phosphates of calcium and magnesium;
(3) silicates of calcium, magnesium, aluminium or sodium or silicon dioxide;
(4) myristates, palmitates or stearates of aluminium, ammonium, calcium, potassium or sodium]]:
[Provided further that calcium, potassium or sodium ferrocyanide may be used as crystal modifiers and anticaking agent in common salt, iodised salt and iron fortified salt in quantity not exceeding 10 mg / kg singly or in combination expressed as ferrocyanide.]"
26. It is an admitted position that anti-caking agent as such is not permitted in "Pan Masala" in terms of Rule 62. It is, thus, to be seen if the samples collected by the Food Inspector did in fact contain magnesium carbonate, the anti caking agent. It is no doubt true that Public Analyst in his report had found magnesium carbonate to be present to the extent of 4.05%. However, the Director, CFL, in his report has nowhere stated that he had carried out the test for magnesium carbonate (MgCO3). The report merely indicates that CA No. 11/11 Page No. 10 of 12
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magnesium to the extent of 0.02% was present. It has already been mentioned above that magnesium is an ingredientj found in cardamom, which was used in "Pan Masala" was permitted. The presence of magnesium in the "Pan Masala" is, thus, explained to be on account of cardamom used in making the "Pan Masala". Likewise, the test for carbonate which was found to be positive by the Director, CFL, can also be attributed to the presence of limestone; again an ingredient in the "Pan Masala". The presence of magnesium and carbonate independently would not and cannot lead to the conclusion of magnesium carbonate, an anti-caking agent being present in the sample. The prosecution has, therefore, not been able to show that there was presence of anti-caking agent in violation of Rule 62 of the Rules or that the sample was adulterated on this account.
27. To conclude, in the Public Analyst report the sample was concluded to be adulterated on account of presence of ash insoluble in dil. HCL, but its content in CFL report were found to be within permissible limit. Again, as per Public Analyst report magnesium carbonate was present while in the CFL report there is no such conclusion / finding given. The contents of CFL report do not show that the sample was adulterated.
28. In view of the aforementioned reasons, the sample cannot be held to be adulterated.
29. In view of the above discussion, the appeal is hereby allowed. Conviction is set aside and the appellant is CA No. 11/11 Page No. 11 of 12
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acquitted. Bail-bond and surety bond stand discharged.
30. Trial Court Record be sent back alongwith the copy of this order.
31. Appeal file be consigned to the Record Room. Announced in the open Court on this 06th Day of February,2012.
(Neena Bansal Krishna) ASJ-01/PHC/New Delhi CA No. 11/11 Page No. 12 of 12