Delhi District Court
Is Placed Upon The Judgment Reported As ... vs Hanif, on 2 August, 2010
IN THE COURT OF SHRI SANJEEV KUMAR MALHOTRA,
ADDITIONAL CHIEF METROPOLITAN MAGISTRATE-II,
NEWDELHI
C.C. N0. 11/2000
Food Inspector
Department of PFA
Govt of NCT of Delhi
A-20, Lawrence Road,
Indl. Area, Delhi-35
Versus
1. Bharat Bhushan Batra
S/o Late Sh. Ganga Ram Batra
M/s Kalu Ram Ganga Ram,
221, Naya Bans, Delhi-6.
4. M/s Kothari Pouches Ltd.,
A-111, Sector-4, Noida, U.P.
JUDGMENT
Date of Institution : 13.01.2000 Date of reserving judgment : 02.08.10 Date of Pronouncement : 02.08.10 The final order : Acquitted Brief statement of the reasons for such decision-
C.C. N0. 11/2000 11. The present complaint is filed by the Delhi Administration through Food Inspector, N.N. Sharma against the above said accused alongwith accused No.2 Smt. Kalawati W/o Sh. Channumal, M/s Mittal Sales Corpn. @ M/s Mittal Agencies, H-7, Model Town- III, Delhi-09 ( since expired and proceedings against her were abated vide order dated 5.9.08 by the Ld. Predecessor of this court ) & accused No.3 R.B. Patel S/o Sh. Mavgi Bhai Narain Dass ( since expired and proceedings against him were abated vide order dated 29.6.06 by the Ld. Predecessor of this court) , for prosecution of the offence under section 7/16 of the Prevention of Food Adulteration Act, 1954 (hereinafter referred to as the PFA Act).
2. The complainant has submitted that on 6.7.99 at about 6:00 p.m., Food Inspector, N.N. Sharma purchased a sample of 3 x 200 gms of Pan Masala packets, a food article, for analysis from Sh. Bharat Bhushan Batra S/o Late Sh. Ganga Ram Batra at M/s Kalu Ram Ganga Ram, 221, Naya Bans, Delhi-6, where the said food article was found stored and exposed for sale for human consumption and accused Bharat Bhushan Batra was found conducting the business of the said food article at the time of sampling. The sample consisted of 3 originally sealed packets of 200 gms each bearing identical label declaration. The Food Inspector divided then said sample then and there into three equal parts by putting them in three clean and dry containers. Each container containing the sample was separately packed, fastened, marked and sealed according to the PFA Act and C.C. N0. 11/2000 2 Rules. Vendor's signatures were obtained on the LHA slip and the wrapper of the sample container. Notice was given to the accused Bharat Bhushan Batra and the price of the sample was also given to him. The Panchnama was prepared at the spot. All the documents prepared by Food Inspector N.N. Sharma were signed by the accused Bharat Bhushan Batra and also signed by Shri V.P.S. Chaudhary, Food Inspector. Before starting the sample proceedings efforts were made to join the pubic witnesses but none came forward. The said sample was taken under the selection and supervision of Sh. G. Sudhakar Rao, SDM/LHA. One counter part of the sample was sent to the Public Analyst in intact condition and two counter parts were deposited with the LHA in intact condition. The Public Analyst analysed the sample on 04.08.99 and opined that the sample does not conform to standards because Ash insoluble in dilute HCI exceeds the prescribed maximum limit of 0.5%. Further, the sample contains Magnesium carbonate which is violation to Rule
62.
3. After the conclusion of the investigation, the entire case file including the statutory documents and PA's report and the report of the FI was sent to the Director (PFA) Delhi Administration, Government of NCT of Delhi who accorded consent under Section 20 of PFA Act for institution of the case and authorised Sh. N.N. Sharma, Food Inspector to file the present complaint.
C.C. N0. 11/2000 34. The accused are allegedly to have violated the provisions of Appendix A-30 and Rule 62 of PFA Rules, 1955 alongwith the provision of Section 2 (ia)(a) (k) (m) of PFA Act, 1954 , punishable U/s 16(1) (a) (i) read with Section 7 of the PFA Act.
5. Summons of the case were served upon the accused persons and pursuant thereto they had appeared before the court. On 27.1.2000, accused Bharat Bhushan Batra moved an application to get the second counterpart of the sample analysed from the Director, CFL while exercising his right under Section 13(2) of the PFA Act and second counterparts of the sample was examined by the Director, CFL, Calcutta vide Certificate No. G.14-4/2000-117 dated 6.3.2000 and opined that the sample of Pan Masala is adulterated.
6. Notice under Section 251 Cr.P.C for contravention of provision of Section 2 (ia) (a) (m) punishable under Section 16 (1) read with Section 7 of the PFA Act was framed against the accused on 18.04.01 to which they pleaded not guilty.
7. In support of its case, complainant examined PW-1 Sh. G. Sudhakar, SDM/LHA ; PW-2 F.I. N.N. Sharma & PW-3 F.I. V.P.S. Chaudhary.
8.Statements of accused were recorded separately on 27.01.2010 under Section 313 Cr.P.C wherein they have controverted and rebutted the C.C. N0. 11/2000 4 entire evidence against them while submitting that they are innocent and accused No.1 preferred to lead evidence in his defence, but despite opportunity, accused failed to lead evidence in his defence and finally his DE was closed on 31.3.10.
9. As per section 2(ia)(a) of PFA Act, an article of food shall be deemed to be adulterated if the article sold by a vendor is not of the nature, substance or quality 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.
10. As per section 2 (ia)(m) of PFA Act, an article of food is said to be adulterated if the quality or purity of the 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 it injurious to health.
11. It is true that the mensrea in the ordinary or usual sense of this term is not required for proving an offence defined by Section 7 of the Prevention of Food Adulteration Act, 1954. It is enough if an article of adulterated food is either manufactured for sale or stored or sold or distributed in contravention of any provision of the Act or of any rule made thereunder. Nevertheless, the prosecution has to prove beyond reasonable doubt that what was stored or sold was food.
C.C. N0. 11/2000 5ARGUMENTS AND FINDINGS.
12.I have heard both the sides at length and have given my conscious thought and prolonged consideration to the material on record, relevant provisions of law and the precedents on the point. The SPP has argued that as the case is well proved and the accused are liable to be convicted. Ld. Defence counsel on behalf of accused No.1 has vehemently argued that no public witness joined the sample proceedings and the sample was not representative that is why divergent reports have been given by two Analysts. Ld. Defence counsel for accused No.4 argued that there is no evidence that the sample commodity was supplied or manufactured by M/s Kothari Pouches Ltd.
Non-joining of Public Witness -Violation of Section 10(7) of the PFA Act:-
13. Section 10(7) of the PFA Act provides :-
Where the food inspector takes any action under clause (a) of sub-section (1), Sub Section (2) Sub Section (4) sub section (6) , he shall call one or more persons to be present at the time when such action is taken and take his or their signatures.
14.It is not the law that the evidence of a Food Inspector must C.C. N0. 11/2000 6 necessarily need corroboration from independent witnesses. The evidence of the FI is not inherently suspected, not should it be rejected on the ground. He discharges the public function in purchasing an article of food for analysis and if the article of food so purchase in the manner prescribed under the Act is found adulterated, he is required to take action as per the law. He discharges the public duty. His evidence is to be tested on its own merits and if found acceptable, the court would be entitled to accept and rely on to prove the prosecution case. Reliance is placed upon the judgment reported as State of U.P. Versus Hanif, AIR 1992 SC 1121, The FI is a public servant. There is no cogent reason to disbelieve his evidence. Reliance is placed upon the judgment reported as Ram Gopal Aggarwal Versus S.M. Mitra 1989 (2) FAC 339, where outsiders who were present at the spot refused to cited as witness and went away, then the Food Inspector did not fault in calling independent witness. Reliance is placed upon the judgment reported as Laxmidhar Saha Versus State of Orissa 1989/(1) FAC 364.
15. In the judgment reported as Nagasuri Pullaha Versus State of A.P., 2003 Cri.L.J., 773, it has been observed that if the evidence of the FI is reliable and trust worth and supported by the public analyst report, it has no bar for believing the evidence of FI in the absence of examination of independent mediator. Corroboration must be insisted only if the evidence of FI is full of contradictions. There is no need to insist for examination of independent witnesses where FI evidence is reliable.
C.C. N0. 11/2000 716. What has been enjoyed upon PFA officials is to include witnesses to the sampling proceedings and this has been shown in the present case. It has been held time and against by various courts that nowadays it is a common tendency that no outsider would like to get involved into criminal case much less in the crime of present magnitude and therefore, it is quite natural that no independent witness would come forward to assist the prosecution. Even otherwise, it has been held in various pronouncements that the testimony of the Food Inspectors alone is sufficient to prove the case if it is credible, reliable and can be acted upon.
17.In the judgment reported as Sukhbir Singh Versus The State, 2002(2) JCC 9 was observed that it is a matter of common knowledge that members of public were hesitant in joining as witnesses. Merely, because the public witnesses not joined, the prosecution case can not be thrown out. As per the settled law, Section 10(7) is not mandatory, it is evidentary in character. The complainant Sub-section (7) would be necessary for satisfying the court that the required sample was taken as alleged by the prosecution. The compliance becomes unnecessary when the accused himself admits the taking and sealing of the sample by the Food Inspector.
18.In the present case, PW-2 F.I. N.N. Sharma has deposed that he tried to join some public witnesses by requesting some passers-by, customers and nearby shopkeepers to join the sample proceedings but C.C. N0. 11/2000 8 none came forward. PW-1 Sh. G. Sudhakar, SDM/LHA under whose supervision , F.I N.N. Sharma lifted the sample, deposed that they tried to join some public witnesses by requesting some passers-by, customers and nearby shopkeepers but none came forward. No suggestion was given to these witnesses that FI did not make efforts to join the public witnesses in the sample proceedings. In his statement under Section 313 Cr.P.C. , accused/vendor has not denied the lifting and sealing of the sample from his premises in his presence, which can be read under Section 313 (4 ) Cr.P.C. Relying upon the authority 2002(2) JCC 9 (Supra), I am of the considered opinion that the non - joining of the public witness does not vitiate the present trial.
Whether the sample commodity was manufactured and supplied by M/s Kothari Pouches Ltd.
19. Ld. Defence counsel for accused No.4 argued that there is no evidence on record that sample commodity was manufactured or supplied to vendor by accused No. 4 company through their distributor. PW-2 F.I. N.N. Sharma confirmed in his cross-examination that no bill of purchase was shown to him by the vendor at the time of sampling, although, he undertook to supply the same later on and made a note on Ex.PW1/B that he purchased the sample commodity from M/s Mittal Agencies , H-5, Model Town, Delhi. He further confirmed that no Bill of purchase was given by the vendor till date and that no firm in the C.C. N0. 11/2000 9 name of M/s Mittal Agencies was found in existence. PW-2 further confirmed that during investigation, he received a letter Ex. PW2/DA from M/s Mittal Sales Corporation that they had not sold any goods in the area of Naya Bans or to M/s Kalu Ram Ganga Ram and that he had not prosecuted M/s Mittal Sales Corporation for not issuing the Bill. In an authority reported as 1985 (I) PFA Cases 270 titled as Bhola Ram Vs State of Punjab , it was held as under :-
Para No.3 - '' In the absence of a bill, cash memorandum or invoice in respect of the sale of any article of food given by a manufacturer or distributor or a dealer to a vendor, there could arise no presumption on the mere label or wrapper that the person purported to be the manufacturer , distributor or dealer thereof is in fact such manufacturer, distributor or dealer. The bare word of the vendor in that regard would not be enough. There had to be something more to it.''
20. Reverting back to the facts of the present case, PW-2 F.I. N.N. Sharma confirmed in his cross-examination that he prosecuted M/s Kothari Pouches Ltd being manufacturer on the basis of label of the sample packets and except the statement of vendor, no documentary evidence was collected by him that the sample packets were manufactured by M/s Kothari Pouches Ltd and sold to vendor through M/s Mittal Sales Corporation. Admittedly, no bill of purchase was given by the vendor till date and the alleged supplier M/s Mittal Sales C.C. N0. 11/2000 10 Corporation denied the sale of sample commodity to vendor during investigation. It is not the case of the complainant that M/s Mittal Agencies and M/s Mittal Sales Corporation were the firms of one party or that they had not issued the Bill of sale to the vendor. Therefore, I am of the considered opinion that link evidence in respect of supply of sample commodity from manufacturer to supplier/vendor, is missing.
Whether sample is representative:
21. Ld. SPP for the complainant has submitted that the sample is representative but the Ld. Counsel for the accused has submitted that the sample was not representative sample. Ld. Defence Counsel further submitted that both the reports are divergent as one Analyst found test for Magnesium Carbonate 'positive' in the sample commodity while another Analyst found test for Magnesium Carbonate 'Negative' in the counterpart of the same sample, which itself shows that the sample was not representative. On the other hand, Ld. SPP argued that the accused challenged the report of Public Analyst after considering the same as erroneous and moved an application for getting analysed the second counterpart by the Director, CFL. Therefore, he cannot again rely upon the report of the Public Analyst and as such report of Public Analyst cannot be looked into for deciding whether the sample was representative or not.
22. In a judgment titled as Kanshi Nath Vs. State, 2005(2) FAC 219, C.C. N0. 11/2000 11 Delhi High Court , it was held by Hon'ble Mr. Justice Badar Durrez Ahmed, as under;-
''............To this extent, the argument raised by Mr. Sharma that once the certificate of the Director, CFL is obtained, then that is final and conclusive and the Public Analyst's report cannot be looked into at all for any purpose whatsoever, is not quite tenable. If the variation in the two reports is substantial enough, then the Public Analyst's report can certainly be looked into to establish this variation so as to support the contention of the petitioner that the sample was not representative. As indicated above, the Director, CFL who was examined as CW-1 in cross-examination, has clearly stated that if the content of common salt as quantified by the two experts would have a variation of more than- Y.3% then the samples would not be representative. This is an opinion of an expert and one has to go by it. In the facts of the present case, we find that the variation, as indicated above, is more than-Y.3%. 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. ''
23. In view of above judgment of the Hon'ble Delhi High Court, I find no force in the contention of the Ld. SPP that the report of the Public Analyst and the Director, CFL cannot be looked into to find C.C. N0. 11/2000 12 whether the sample was representative or not. In the present case, as per report of the Public Analyst dated 4.8.99 wherein the opinion given by the Public Analyst, Delhi was that the sample does not conform to the standard and the result of the Public Analyst was as follows:-
Total Ash - 5.58% on dry weight basis Ash insoluble in dilute HCI - 1.66% on dry weight basis. Magnesium Carbonate - 1.72%
24. The second counterpart of the same sample was analysed by the Director, Central Food Laboratory, Calcutta dated 6.3.2000 , the result of analysis of second counterpart of the sample commodity is as follows:-
Total Ash - 5.6% on dry weight basis Ash insoluble in dilute HCI - 1.2% on dry weight basis. Test for Magnesium Carbonate - Negative
25. Both the Analysts gave divergent reports in respect of analysis of counterpart of same sample as Public Analyst found test for magnesium carbonate 'positive' and found 1.72% magnesium carbonate in the sample commodity, while Director, CFL in the counterpart of same sample did not find any magnesium carbonate and he found test for magnesium carbonate 'negative'. No C.C. N0. 11/2000 13 explanation has come on record on behalf of complainant why one Analyst found test for magnesium carbonate 'positive' and another Analyst did not find the same in the counterpart of the same sample. Thereby relying upon Kanshi Nath versus State (supra), I am of the considered view that the sample was not representative.
26. In view of the above reasons and discussions, I am of the considered opinion that the complainant has failed to prove that a representative sample was taken. In result, complaint stands dismissed and accused No. 1 & 4 stand acquitted. Previous bail bond of accused No.1 furnished at the time of appearance stands cancelled. Earlier Surety discharged. Bail bond as per Section 437A Cr.P.C is furnished and accepted which shall remain in force for a period of six months. File be consigned to the record room.
Announced in the open court. ( S.K. MALHOTRA )
Dated: 02.08.10 ACMM-II/NEW DELHI.
C.C. N0. 11/2000 14