Delhi District Court
Da vs Surender Kumar on 22 January, 2010
IN THE COURT OF SHRI SANJEEV KUMAR MALHOTRA,
ADDITIONAL CHIEF METROPOLITAN MAGISTRATE-II,
NEWDELHI
C.C. NO. 142/07
DA Versus Surender Kumar
U/s 7/16 of the Prevention of Food Adulteration Act, 1954
JUDGMENT
a. The Serial number of the case : 142/07 b. The date of the commission of the offence : 22.07.07 c. The name of the Complainant, if any : F.I. S.P. Singh d. The name of the accused and his parentage : Surender Kumar S/o Sh. Ranbir Singh, M/s Raghav Dairy, Shop No. A-139/5, Shiv Mandir Marg, Mandawali, Delhi-
92.e. The offence complained of or proved : f. The plea of the accused : Pleaded not guilty g. The final order : h. Arguments heard on : i. judgment announced on : 22.01.2010
Brief statement of the reasons for such decision-
1. The present complaint is filed by the Delhi Administration through Food Inspector S.P. Singh against the accused, namely, Surender Kumar S/o Sh. Ranbir Singh, M/s Raghav Dairy, Shop No. A-139/5, Shiv Mandir Marg, Mandawali, Delhi-92, 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 22.07.07 at about 10:30 a.m., Food Inspector, S.P. Singh purchased a sample of 'Cow Milk', a food article, for analysis from Surender Kumar S/o Sh. Ranbir Singh, from the premises of M/s Raghav Dairy, Shop No. A-139/5, Shiv Mandir Marg, Mandawali, Delhi-92, where the said food article was stored for sale and Surinder Kumar was found conducting the business of the said food article at the time of sampling. The sample consisted of approx. 1.5 Liters of 'Cow Milk' was taken from an open drum bearing the label declaration. The sample was taken after proper mixing with the help of clean and dry plunger by rotating it in all possible directions up and down. The sample was taken under the supervision of Sh. Radha Charan, SDM/LHA. The Food Inspector divided the sample then and there into three equal parts by putting them in three separate clean and dry glass bottles. 40 drops of formalin were added in each sample bottle. Each bottle containing the sample was separately packed, fastened, marked and sealed according to the PFA Act and Rules. Vendor's signatures were obtained on the LHA slip and the wrapper of the sample bottles. Notice was given to the accused Surinder Kumar and the price of the sample was also given to him vide vendor receipt dated 22.07.2007. The Panchnama was prepared at the spot. All the documents were prepared by Sh. S.P. Singh, Food Inspector and were signed by the accused Surender Kumar and the other witness Sh. Jagdish, FA. Before starting the sample proceedings efforts were made to join the pubic witnesses but none came forward, as such Sh. Jagdish, FA, was joined as witness. One counter part of the sample was sent to the Public Analyst, Delhi, in intact condition and two counter parts were deposited with the LHA in intact condition. The Public Analyst analysed the sample on 8.8.07 and found that the sample does not conform to standard because milk solids not fat is less than the prescribed minimum limit of 8.5%.
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. S.P. Singh, Food Inspector to file the present complaint.
4. The accused is allegedly to have violated the provisions of Section 2 (ia)(a)(m) punishable U/s 16(1) (a) read with Section 7 of the PFA Act and Rules.
5. Summons of the case were served upon the accused and pursuant thereto he had appeared before the court. On 13.11.2007 accused moved the 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, Pune vide Certificate No.CFL/594/645/2007 dated 27.12.2007 and found that the sample contains milk fat less than 3.5% & skimmed milk powder test positive & hence does not conform to the standards of Cow Milk as per PFA Rules, 1955.
6. Notice under Section 251 Cr.P.C for contravention of provision of Section 2 (ia)(a)& (m) punishable under Section 16 (1) (a) read with section 7 of the PFA Act was framed against the accused on 17.03.2009 to which he pleaded not guilty.
7.In support of its case, complainant examined PW-1 Sh. Radha Charan, SDM/LHA; PW-2 F.I. S.P. Singh.
8. Statement of accused was recorded under Section 313 Cr.P.C on 20.11.2009 wherein he has controverted and rebutted the entire evidence against him while submitting that he is innocent and preferred not to lead evidence in his defence.
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.
ARGUMENTS 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, written submissions, relevant provisions of law and the precedents on the point. The SPP has argued that as the case is well proved and the accused is liable to be convicted. Ld. Defence counsel, on the other hand, has vehemently argued that there is inordinate delay in filing the complaint which caused prejudice to the accused for obtaining the correct analysis of the sample counterpart from the Director, CFL. Ld. Defence counsel further argued that the sample was not representative as to why divergent reports have been given by two Analysts in respect of the counterpart of the same sample. Ld. Defence counsel has also drawn my attention in respect of the authorities reported as 2008 (1) FAC 177; 2008 (1) FAC 182; 1972 PFA Cases 273; 1980 (II) PFA Cases 145; 2005 (1) FAC 162; 2005 (2) FAC 219; 2005 (2) FAC 228 & 1948-1997 Supreme Court on Food Adulteration Cases 93.
Delay in filing the complaint and its effect :-
13. In the present case the sample of Cow's Milk was taken by Food Inspector Sh. O.P.S Ahlawat from accused Anil Kumar on 20.05.96 and it was analysed by the Public Analyst on 11.06.96 i.e within twenty two days. However, the complaint was filed on 5.3.97.
14.In State v. Anil Batra and others 2008(I) FAC 191 (Del), it was observed as follows:
9. ........Learned Trial Court has relied upon one judgment of the Hon'ble Supreme Court in 'Municipal Corporation of Delhi v. Ghisa Ram 1975 (I) PFA cases 186. In that case the complaint was filed in Court after about seven months from the date of raid and taking of sample of milk product (curd) from the shop of the accused which was on 20/09/1961. The complaint was filed on 23/05/1962. Hon'ble Supreme Court held that in these circumstances, the valuable right available to the accused under section 13(2) of the Act of having the sample tested at Central Food Laboratory had stood denied to him. It was also observed that ordinarily it was possible for the prosecution to obtain the report of the Public Analyst and institute the prosecution within 17 days of the taking of the sample. Mr. Dudeja, learned APP had submitted that this judgment was not applicable to the facts of the present case since in that case the Director of Central food Laboratory had found the sample sent to him to be unfit for analysis because of decomposition and because of that reason the accused could not have the benefit of the report of the Director which, if had been given, would have superseded the report of the Public Analyst and so the Hon'ble Supreme Court had held that the delay in launching the prosecution against the accused had resulted in denial of the benefit of Section 13(2) of the Act to him while in the present case despite the delay in the filing of the complaint in court the third counter part of the sample which was sent for analysis, as per the CFL report, did not conform to the prescribed standard. So, learned APP contended, the acquittal of the accused of the present case by the trial Court relying upon the said judgment of the Hon'ble Supreme Court was totally unjustified and not sustainable at all. However, in my view the acquittal of the respondents in the present case in view of the decision of the Hon'ble Supreme Court in Ghisa Ram's case (Supra) cannot be said to be unjustified because the crux of the judgment of the Hon'ble Supreme Court is that prosecution in these kinds of cases should be launched promptly. In that case reference was also made to the opinion of an expert that if a food article, like curd, is kept in a refrigerator and a preservative is added to the sample the total period which may be available for making analysis of that sample without decomposition will be six months. In the present case, the third sample of the paneer was sent to the Central Food Laboratory after the expiry of more that in six months from the date when it was taken from the shop of the respondent no. 1 and there is no explanation forthcoming from the side of the prosecution for that delay. It is admitted by the prosecution that the sample was not kept in refrigerator but was kept in at room temperature till the time from taking of the samples to sending it to CFL.
15. In the present case, it is clearly seen from the record that the sample of Cow's Milk was analysed by the Public Analyst, on 11.06.96 i.e within twenty two days from which the sample was lifted by F.I O.P.S. Ahlawat but complaint was filed on 5.3.97. No explanation whatsoever came on record that even after opinion of Public Analyst in respect of a sample of Cow's Milk, why period of almost nine months occurred by the department to launch the prosecution against the accused, although, complainant was aware that accused can exercise his right under Section 13 (2) of PFA Act only after institution of complaint, which is also fatal to the case of complainant.
Whether sample is representative:
16.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 reports of the Public Analyst and the Director, CFL are highly divergent, 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 the second counterpart analysed 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.
17. In a judgment titled as Kanshi Nath Vs. State, 2005(2) FAC 219, Delhi High Court , it was held by Hon'ble Mr. Justice Badar Durrez Ahmed, as under;-
'' Coming to the next controversy, i.e with regard to the representativeness of the sample, it is clear from the Full bench decision in MCD Vs. Bishan Sarup (supra) that if the samples are not representative, then any test report based on it would not indicate the true position. That being the case, a conviction cannot be founded on such a test report. Upon an examination of the cases mentioned by Mr. Mittal, it also becomes clear that although in terms of Section 13(3) of the PFA Act, the Director's certificate would supersede the Public Analyst's report, the difference in the two can still be looked into by the courts for ascertaining as to whether the samples were representative or not.'' Mr. Sharma had placed reliance on the Supreme Court decision in Calcutta Municipal Corporation (supra) and particularly on paragraph 14 thereof which reads as under:-
14.Thus the legal impact of a certificate of the Director of Central Food Laboratory is three-fold. It annuls or replaces the report of the Public Analyst, it gains finality regarding the quality and standard of the food article involved in the case and its becomes irrefutable so far as the facts stated therein are concerned. (emphasis added) A careful reading of the Supreme Court decision reveals that the certificate of the Director, CFL supersedes the report of the Public Analyst and is conclusive as regards the quality and standards of the sample tested. There is no quarrel with this and there can be none. But, this does not enable us to detract from the ratio of the Full Bench decision of this court in the case of MCD vs. Bishan Sarup (supra) that even after such a certificate is issued by the Director, CFL, it would still be open to the accused to establish, if he can do so on concrete grounds, that the sample tested was not a representative one. 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. ''
18. 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 whether the sample was representative or not. In the present case, as per report of the Public Analyst dated 11.6.96 wherein the opinion given by the Public Analyst, was that the sample does not conform to the standard and the result of the Public Analyst was as follows:-
Milk fat -6%
Solids not fat - 9.04 %
Test for starch - Negative
Test for sugar - Negative
Test for Formalin - Positive
Test for SMP - Positive
19. The second counterpart of the same sample was analysed by the Director, Central Food Laboratory, Calcutta vide report dated 9.4.97 , the result of analysis of second counterpart of the sample commodity was that milk fat was found 5.6% and milk solids not fat was found 7.2% and skimmed milk powder was not found by the Director, CFL. The difference of analysis in respect of milk fat and milk solids not fat in respect of sample of cow's milk by the reports of two analysts are not within acceptable range of .3%. Further, Public Analyst declared the sample non-conforming to standard due to the presence of skimmed milk powder and another analytic data of the sample commodity was as per standard of cow's milk. However, the counterpart of the same sample when examined by the Director, CFL was found adulterated as milk fat and milk solids not fat were found below the prescribed standard but no skimmed milk powder was found by the Director, CFL . These both reports in respect of the counterpart of the same sample are divergent and complainant has failed to show any explanation in respect of variation of more than .3% in the analytic data of the counterpart of the same sample. Thereby relying upon Kashi Nath versus State (supra), I am of the considered view that the sample was not representative due to which divergent reports were given by two experts in respect of counterpart of the same sample.
20.In view of the above discussion and reasons, I am of the considered opinion that the complainant has failed to prove its case against the accused beyond reasonable doubt. In result, accused stands acquitted. Bail bond stands cancelled. Surety discharged. File be consigned to the record room.
Announced in the open court. ( S.K. MALHOTRA ) Dated: 22.01.2010 ACMM-II/NEW DELHI.