Delhi District Court
Delhi Administration / Food Inspector vs A-1) Satbir Singh on 3 March, 2017
IN THE COURT OF SH. ASHU GARG,
Addl. Chief Metropolitan Magistrate - II (New Delhi),
Patiala House Courts, New Delhi
CC No. 132/11
Unique Case ID No. 02403R0049612011
Date of Institution: 24.06.2011
Date of reserving judgement: 03.03.2017
Date of pronouncement: 03.03.2017
In re:
Delhi Administration / Food Inspector
Department of PFA,
Govt. of NCT of Delhi
A-20, Lawrence Road Industrial Area,
Delhi-110035 ... Complainant
versus
A-1) Satbir Singh
S/o. Sh. Bansi Lal
R/o. S-4/26, Old Mahavir Nagar,
New Delhi - 18
A-2) Bishan Swaroop Mittal
S/o. Sh. Prem Lal Mittal
(PROCLAIMED OFFENDER)
A-3) M/s. Tapan Milk Products
Tapan House, 1, Kusum Vihar,
Dayal Bagh, Agra, U.P. - 282005 ... Accused Persons
CC No. 132/11 Page 1 of 14
JUDGMENT:
1. The present is a complaint filed under section 16 of the Prevention of Food Adulteration Act, 1954 (PFA Act), alleging that the accused persons have violated the provisions of the PFA Act and Rules. The accused no. 1 is stated to be the vendor-cum-proprietor of M/s. Mahalaxmi Store, from where the food article, that is, 'Mild Fat' was lifted for sampling. Accused no. 3 is stated to be the manufacturing company, of which the accused no. 2 (since P. O) was the nominee.
2. As per the complaint, on 23.04.2010, the food officials consisting of Food Inspector (FI) S. B. Sharma (since expired) and Field Assistant (FA) D. N. Verma under the supervision of Local Health Authority (LHA)/SDM Sh. Pramod Kumar reached along with their staff at the premises of M/s. Mahalaxmi Store at C-23, Budh Bazar Road, Viikas Nagar, New Delhi -110059 where the accused no. 1 was found having stored various food articles for sale for human consumption, including Mild Fat lying in sealed plastic jars of one litre each. The FI disclosed his identity and expressed his intention to purchase a sample of Mild Fat from the vendor, to which he agreed. A sample of three such sealed jars was then lifted as per procedure prescribed under the PFA Act and Rules. Each sample was separately packed, fastened, marked and sealed and necessary documents were prepared at the spot, including the Notice as per Form-VI, panchnama, etc. The price of sample was paid to the vendor. Thereafter, one counterpart of the sample was sent to the Public CC No. 132/11 Page 2 of 14 Analyst (PA) in intact condition and the other two counterparts were deposited with SDM/LHA. Vide report dated 13.05.2010, the PA found the sample to be violative of Rule 44(l) of PFA Rules as it was an admixture of milk fat with hydrogenated and un-hydrogenated edible vegetable oil and fat, and also the claim of being healthier than Desi Ghee to be misleading and in violation of Rule 37 and 40(1) of PFA Rules. Upon receipt of report, the SDM/LHA ordered investigation which was carried out by FI. The vendor did not disclose the source of purchase of food article. As per the label declaration, accused no.3 Company was found to be the manufacturer of the food article. Investigation revealed that accused no.2 (since P.O) had been appointed as its nominee under section 17 of the PFA Act. After completion of investigation, sanction under section 20 of the PFA Act was obtained from the Director PFA. The complaint was then filed in the court on 24.06.2011 alleging violation of section 2(ix)(a), (e), (g) and (k) of PFA Act, read with Rules 37, 40(1) and 44(l) of PFA Rules, as punishable section 7/16(1)(a) of PFA Act. It was also alleged that the vendor violated Section 14A, as punishable under section 16(1C) of PFA Act.
3. As the complaint was filed in writing by a public servant, recording of pre-summoning evidence was dispensed with and the accused persons were summoned vide order dated 24.06.2011. The presence of accused no.2 could not be secured and he was subsequently he was declared proclaimed offender vide order dated 06.12.2013. In the meanwhile, the accused no.1 filed an application under section 13(2) of PFA Act thereby exercising his right to get the second counterpart of the sample to be CC No. 132/11 Page 3 of 14 analysed from Central Food Laboratory (CFL). The application was allowed and a counterpart was sent for analysis to CFL. The CFL examined the sample and its Director gave Certificate dated 09.09.2011, opining the sample to be not conforming to the PFA Rules due to presence of rancidity and also the total fat to be 98.75% instead of the declared 99.7% on the label.
4. Based on the report of the CFL, notice of accusation under section 251 CrPC was framed against accused no. 1 and 3 (through AR) on 06.12.2013 for commission of the offence punishable under section 7/16(1)(a) being violation of sections 2(ia)(a) and (m) read with Rule 37D and Rule 40(1) of PFA Rules with respect to the offence of adulteration as well as for violation of Section 2(ix)(k) of PFA Act with respect to the offence of misbranding, to which they pleaded not guilty and claimed trial. No notice was framed for violation of Section 14A as punishable under section 16(1C) of PFA Act, despite allegations to this extent in the complaint.
5. At the trial, prosecution examined three witnesses in support of its case. PW-2 Sh. Pramod Kumar (SDM/LHA) and PW-3 FA D. N. Verma were part of the team that had visited the spot for sample proceedings, along with FI S. B. Sharma who could not be examined due to his death. Both these witnesses deposed about the proceedings conducted by them on 23.04.2010 and narrated the steps undertaken by them during the sample proceedings, including disclosing their identity, expressing intention to purchase sample for analysis, lifting the sample of three sealed plastic jars CC No. 132/11 Page 4 of 14 of Mild Fat bearing label declaration, dividing it in three counterparts by putting one sealed jar as one counterpart, fastening, sealing, marking the counterparts, and obtaining signatures of vendor and witnesses. They also proved the necessary documents including the vendor's receipt Ex. PW- 2/A, Notice Ex. PW-2/B, Panchnama Ex. PW-2/C, Raid report Ex. PW- 2/D, statement of accused Ex. PW-2/E, PA Receipt Ex. PW-2/G and LHA receipt Ex. PW-2/F. PA report Ex. PW-2/H was received and part investigation was conducted by FI S. B. Sharma (since expired). Further investigation was done by FI B. P. Saroha who sent letters Ex. PW-1/A, Ex. PW-1/B and Ex. PW-1/B-1 to the accused no.3 and received reply Ex. PW-1/A1. After completion of investigation, sanction Ex. PW-1/C was taken from the Director PFA and the complaint Ex. PW-1/D was filed in the court. A copy of PA report with intimation letter was sent to the accused persons through post. These witnesses were duly cross-examined by the respective Ld. Defence Counsel for accused no.1 and 3 wherein they denied deposing falsely or falsely implicating the accused persons.
6. Statements of the accused no. 1 and 3 (through AR) under section 313 CrPC were recorded on 03.03.2017 wherein they denied the allegations and pleaded innocence. Accused no.1 accepted the sample proceedings from his shop but claimed that he had purchased the food article in sealed condition from one M/s. Krishna Traders against a bill. Accused no. 3 on the other hand denied the sample proceedings for want of knowledge as it was not present at the spot. It disputed the PA and CFL Reports and stated that there was no adulteration in the food article. They chose not to lead evidence in defence.
CC No. 132/11 Page 5 of 147. It is in these circumstances, Ld. SPP for the complainant has argued that the complainant has been able to establish its case against both the accused persons beyond reasonable doubt, on the ground that they have not been able to rebut the findings of the CFL report dated 09.09.2011 which as per section 13(3) of PFA Act is final and conclusive. It is submitted that all the witnesses have supported its case and no major contradiction can be seen in their testimony.
8. On the other hand, the respective Ld. Defence Counsel have submitted that there are various missing links in the testimony of witnesses. Ld. Counsel for accused no.1 has claimed the benefit of warrant under section 19(2) of PFA Act on the ground that the food article had been purchased in sealed condition against a bill and was being sold in the same state as purchased. Ld. Counsel for accused no.3 has strongly contended that there is vast variation in the reports as given by PA and CFL, which leads to conclusion that the two samples were not representative and therefore, conviction cannot be based solely on the basis of the CFL report. He has relied upon the various judgements in his support.
9. I have heard the arguments advanced by Ld. SPP for the complainant and the respective Ld. Defence Counsel for the accused persons and have carefully perused the material available on record.
CC No. 132/11 Page 6 of 1410. It is to be understood that the notice framed against the accused persons is for violation of section 2(ia)(a) and (m) of the PFA Act as well as for violation of Section 2(ix)(k) of PFA Act. Section 2(ia)(a) of PFA Act applies when the nature, substance or quality of food article is not as 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. Section 2(ia)
(m) of PFA Act deals with situation where the quality or purity of an 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 the food article injurious to health. Rule 37D, under which notice was framed, prescribes that the label of edible oils and fats shall not used the expressions which are an exaggeration of the quality of the product. Rule 40(1) requires that there shall not be written in the label the word "imitation" or any word implying that the article is substitute for any food.
11. In the case at hand, it is an admitted position, as is clear from the PA as well as CFL reports that the food article did not fall under any of the items of Appendix-B of PFA Rules. It has therefore been analyzed by both the analysts as a proprietary food article, as defined in Rule 37A of PFA Rules. In case of such proprietary food articles, no specific standards have been prescribed and the manufacturers are free to use any ingredient in any quantity, provided that the same is otherwise not in violation of any other Rule.
12. The food article is stated to be "Mild Fat". No standards have been prescribed for this food article in Appendix-B of PFA Rules. The FI at the CC No. 132/11 Page 7 of 14 time of lifting the same had noted down the label declarations on Form VI Ex. PW-2/B, which show that various ingredients had been used in preparation of the said food article, including hydrogenated and un- hydrogenated edible vegetable oil, milk fat, natural saturated and unsaturated fats, natural and other flavouring substances etc. It has been specifically mentioned to be a proprietary food on the label of the product.
13. Therefore, it cannot be said that the food article was in violation of Rule 44(l) of PFA Rules as opined by the PA, primarily because the said rule applies only to a Milk or Milk product specified in Appendix-B of PFA Rules. As the food article cannot be said to be a milk or milk product and also it is not specified in any of the items of Appendix-B, it cannot be violative of Rule 44(l). The food article has been analyzed as a proprietary food and not as a milk or milk product for which specific standards have been prescribed under PFA Rules. In any case, no such violation has been observed or opined by the CFL.
14. As per section 13(3) of the PFA Act, the certificate issued by the Director of CFL shall supersede the report of the PA. As per proviso to section 13(5) of the Act, such certificate shall be final and conclusive evidence for the facts stated therein. Thus, as far as the findings of the CFL are concerned, the same are final and conclusive and no evidence can be given to disprove the same.
15. In Calcutta Municipal Corporation v. Pawan Kumar Saraf [AIR 1999 SC 738], it has been authoritatively laid down that the legal impact CC No. 132/11 Page 8 of 14 of a certificate of the Director of CFL is three fold: (a) it annuls or replaces the report of the PA, (b) it gains finality regarding the quality and standard of the food article involved in the case and (c) it becomes irrefutable so far as the facts stated therein are concerned.
16. In Subhash Chander v. State, Delhi Administration [1983(4) DRJ 100], it was observed by Hon'ble High Court of Delhi that "It has repeatedly been held by the supreme court that the certificate of the Director supersedes the report of the public analyst and is to be treated as conclusive evidence of its contents. The Director is a greater expert and therefore the statute says that his certificate shall be accepted by the court as conclusive evidence. For all purposes the report of the public analyst is replaced by the certificate of the Director.... Superseded is a strong word. It means obliterate, set aside, annul, replace, make void, inefficacious or useless, repeal. The Director's certificate supersedes the report given by the public analyst. Once superseded it does not survive for any purpose. It will be anomalous to hold that for some purpose it survives and for other purposes it is superseded."
17. Since the report of CFL is final and conclusive and the same supersedes the report of PA, only this report has to be considered and the report of PA has to be ignored. It would be seen that the CFL report has negated the results of PA on all the counts. The PA was of the view that the food article was in violation of Rule 44(l), Rule 40(1) and Rule 37 of PFA Rules. However, no such violation has been observed by the PA.
CC No. 132/11 Page 9 of 1418. Despite the fact that no opinion was given by the CFL with respect to violation of Rule 40(1) and Rule 37D of PFA Rules, notice was framed by the court under these provisions as well. However, the material on record does not show commission of these offences. There is nothing to show that the food article could be called as edible oil or fat, for which Rule 37D may apply. As already stated, the food article is a proprietary food and it will not fall under the category of edible oils and fats so as to apply Rule 37D. Similarly, there is nothing to show that by mentioning the words "healthier than Desi Ghee", the manufacturer implied that the article was an imitation of or a substitute of any food article including Desi Ghee. The ingredients on the label and other declarations clearly shows that the food article never claimed to be Desi Ghee or edible oil or fat or vegetable oil or fat or a milk or milk product, which are all standardized food articles falling in Appendix-B of PFA Rules. The food article in question is a proprietary food as recognized by the PFA Rules and was declared so on its label. Thus, there is no violation even of Rule 40(1) of PFA Rules.
19. The sample was opined to be not conforming to the standards by the CFL only on the ground of total fats to be 98.75% (as against the declared 99.7% on the label) and due to presence of rancidity. As such, the matter has to be determined only on the basis of report of CFL.
20. In this regard, the defence strongly relies upon the judgement titled as Kanshi Nath v. State [2005(2) FAC 219], informing that the said ruling has been constantly followed by the Hon'ble High Court of Delhi in CC No. 132/11 Page 10 of 14 State v. Ramesh Chand [2010 (2) JCC 1250], Food Inspector v. Parvinder Malik [2014(2) FAC 306], State v. Vinod Kumar Gupta [2010(2) JCC 957], State v. Virender Kohli [2014(2) FAC 223], State v. Kamal Aggarwal [2014(2) FAC 183], State v. Vidya Gupta [2014(1) FAC 291], State v. Dinesh Goswami [2014(1) FAC 302], State v. Mahabir [2014(1) FAC 286], State v. Santosh Sharma [2014(1) FAC 296], Raja Ram Seth & Sons v. Delhi Administration [2012(2) FAC 523], State v. Sunil Dutt [2011(4) JCC 2377] and State v. Rama Rattan Malhotra [2012(2) FAC 398]. It is submitted that comparison of the two reports would show that there are substantive variations which would show that the sample was not representative.
21. The Hon'ble High Court of Delhi in Kashi Nath's case (supra), was dealing with a situation where there were certain variations in the reports of PA and CFL while analysing a sample of 'dhania powder'. Hon'ble Court considered the ratio in MCD v. Bishan Sarup [ILR 1970 (1) Delhi 518] and held that it would still be open for the accused to establish that the sample tested was not a representative one, and if the variation in the two reports is substantial enough, then the PA report can certainly be looked into to establish this variation.
22. In the case at hand, the PA report never detected the percent age of total fats. There is nothing to show if the total fat was as per label declaration or not at the time when the sample was analyzed by the PA. If the total fats were as per the label declaration at that time or otherwise were at substantive variation as determined by the CFL, the benefit would CC No. 132/11 Page 11 of 14 go to the accused. But when no such content was determined by the PA, the court is not in a position to compare the two reports on this point even to ascertain if there is substantive variations in the two or not.
23. As far as the grounds on which CFL failed the sample is concerned, it is important to understand that milk products and oil products as food article are prone to natural variations with the passage of time. If the said food article, particularly the food articles prepared through milk and oils, are kept for a long period, certain changes are bound to take place. But when the quality or purity of such an article falls below the prescribed standards solely due to natural causes and beyond the control of human agency, then such article would not be termed as adulterated. The effect of presence of air, moisture, temperature, external environment, internal heat etc. cannot be ignored on such article, particularly when no preservative as such was used in the sample. Such changes would be natural changes beyond human control. Fat content reduces with passage of time and if the fat content in the present case was marginally lesser than what was declared on the label, particularly when the CFL examined the CFL after 18 months of lifting the sample and much beyond the best before date as mentioned on the label, it cannot be said that the food article was not conforming to standards at the time of sale / raid, particularly when no such opinion was given by the PA. Similarly, rancidity develops in oils/ghee/vanaspati and the food articles prepared using these ingredients with the passage of time. Reliance can be placed on the judgements titled as Nebh Raj v. State [Criminal Appeal No. 113/1975, Supreme Court of India, dated 24.10.1980] and National Diary Development Board v.
CC No. 132/11 Page 12 of 14State of Haryana [1997(I) PFA Cases 95]. In the present case, such development of rancidity cannot be ruled out after 18 months of lifting of the sample.
24. Thus, there is possibility that such changes as observed by the CFL in the matter in hand were natural changes. The burden would be on prosecution to rule out possibility of such natural changes before the accused persons can be convicted. The only conclusion would be that the sample underwent a natural change during the intervening period which was beyond human control. In such case, the accused persons would get benefit of doubt.
25. Thus, as far as section 2(ia)(a) is concerned, the accused persons are entitled to be given benefit of doubt considering the time gap and natural variations. Similarly, since the product is a proprietary food article for which no standards are there under PFA Rules, there cannot be violation of Section 2(ia)(m) of PFA Act. There is no material to show any violation of labelling or packaging rules so as to establish violation of Section 2(ix)(k) of PFA Act. As already stated, Rule 37D and 40(1) are not applicable to the food article in question, under which notice was framed. The evidence on record is not sufficient to conclude that the sample in question was 'adulterated' within the meaning of section 2(ia) of PFA Act or 'misbranded' within the meaning of Section 2(ix) of PFA Act and thus, no case would be made out against the accused persons for commission of offences punishable under section 7/16 of the PFA Act.
CC No. 132/11 Page 13 of 1426. Having said so, the accused no. 1 and 3 are acquitted of the charges. However, the bail bond of accused no. 1 shall remain in force for the next six months in terms of section 437-A CrPC.
27. File be consigned to record room. The same shall revive upon arrest of accused no.2 who continues to be a proclaimed offender.
Announced in the open court this 03rd day of March 2017 ASHU GARG ACMM-II (New Delhi), PHC Judge Code DL-0355 CC No. 132/11 Page 14 of 14