Delhi District Court
Lha vs Mahesh Kumar on 3 May, 2010
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IN THE COURT OF SHRI SANJEEV KUMAR MALHOTRA,
ADDITIONAL CHIEF METROPOLITAN MAGISTRATE-II,
NEWDELHI
C.C. NO. 68/98
LHA Versus Mahesh Kumar
U/s 7/16 of the Prevention of Food Adulteration Act, 1954
JUDGMENT
a. The Serial number of the case : 68/98 b. The date of the commission of the offence : 06.08.98 c. The name of the Complainant, if any :LHA S.K. Nanda d. The name of the accused and his parentage :Mahesh Kumar S/o Sh. Gurdyal Garg, M/s Garg provision Store, WZ-439-A, Pat II, Raj Nagar, Palam Colony, Delhi.
e. The offence complained of or proved : u/s 2 (ia)(a) (b)
(c)(h)(l) punishable under Section 16(1A) read with section 7 of the PFA Act.
f. The plea of the accused : Pleaded not guilty g. The final order :Acquitted h. Arguments heard on :23.04.2010 i. judgment announced on :03.05.2010
Brief statement of the reasons for such decision-
21. The complaint case is filed by the Delhi Administration through Local Health Authority S.K. Nanda against the above said accused, 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 06.08.98 at about 4:00 p.m., Food Inspector, R.K. Bhaskar purchased a sample of 'Mustard oil', a food article for analysis from Sh. Mahesh Kumar S/o Sh. Gurdyal Garg at M/s Garg provision Store, WZ-439-A, Pat II, Raj Nagar, Palam Colony, Delhi, where the said food article was found stored for sale and Sh. Mahesh Kumar was found conducting the business of the said food article at the time of sampling. The sample consisted of approximate 375 gms of mustard oil taken from an open container bearing no label declaration. The sample was taken after proper homogenizing it by the measure (metalic) already lying in the container by rotating it in all possible directions. The Food Inspector divided the sample then and there into three equal parts by putting them in three separate clean and dry bottles. 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 Sh. Mahesh Kumar and the price of the sample was also given to him. The Panchnama too was prepared at the spot. All the documents prepared by Sh. R.K. Bhaskar, Food Inspector were signed by the accused Mahesh Kumar and the other witness Sh. Bal Mukand, Food Inspector. Before starting the sample proceedings efforts were made to join the pubic 3 witnesses but none came forward. The sample was taken under the supervision of Sh. S.K. Nanda, 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, Delhi, analysed the sample on 11.08.98 and opined that the sample does not conform to the standards laid down under item no. A.17.06 of Appendix 'B' of the PFA Rules, 1955, because Polybromide test is positive.
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.K. Nanda, Local Health Authority to file the present complaint .
4. The accused is allegedly to have violated the provisions of Section 2 (ia)(a) (m) & 2 (ix) (k) of PFA Act and Rules 32, 42 ( ZZ) and 44 (e) punishable U/s 16(1) read with Section 7 of the PFA Act.
5. Summons of the case were served upon the accused and pursuant thereto he had appeared before the court. On 31.8.98, accused Mahesh Kumar 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.14-4/98(PT-1)-343 dated 5.11.98 and opined that the sample of Mustard oil is adulterated.
46. Charge for contravention of provision of Section 2 (ia)(a) (b)
(c)(h)(l) punishable under Section 16(1A) read with section 7 of the PFA Act was framed against the accused on 20.02.09 to which he pleaded not guilty.
7. In support of its case, complainant examined PW-1 LHA S.K. Nanda; PW-2 F.I. R.K. Bhaskar & PW-3 F.I. Bal Mukand.
8. Statement of accused was recorded on 10.3.10 under Section 313 Cr.P.C 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)(b) of PFA Act, if the article contains any other substance which affects, or if the article is so processed as to affect, injuriously the nature, substance or quality thereof.
11.As per Section 2(ia)(c) of PFA Act, if any inferior or cheaper substance has been substituted wholly or in part for the article so as to affect injuriously the nature, substance or quality thereof.
12. As per Section 2 (ia)(h) of PFA Act, if the article contains 5 any poisonous or other ingredient which renders it injurious to health.
13. As per section 2 (ia)(l) of PFA Act, 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 renders it injurious to health.
14. 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.
15.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 is liable to be convicted. On the other hand, Ld. Defence counsel argued that no public witness joined the sample proceedings and bottles were not clean and dry. Ld. Defence counsel further argued that the sample was not representative as to why the reports of the two Analysts are divergent .
Non-joining of Public Witness -Violation of Section 10(7) of the PFA Act:-
616. 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.
17.It is not the law that the evidence of a Food Inspector must 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.
18. 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 7 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.
19.In the judgment reported as Food Inspector Versus Satyanarayan, 2002 (5) Supreme Court 373, it has been observed that section 11 of the PFA act prescribing procedure to be followed by Food Inspector for taking of sample of food does not provide for associating any other person as witness for taking sample.
20.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.
21.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 8 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.
22.In the present case, PW-1 S.K. Nanda, LHA has deposed that before purchasing the sample, F.I. R.K. Bhaskar tried to join public witnesses but none came forward. PW-2 F.I. R.K. Bhaskar also deposed that before purchasing the sample, he tried his best to procure public witnesses but none agreed. No suggestion was given to this witness that FI did not try to join the public witnesses. In his statement under Section 313 Cr.P.C, accused has not denied the lifting and sealing the sample in his presence. Relying upon the authority 2002(2) JCC 9 (Supra) as lifting and sealing the sample is not disputed, I am of the considered opinion that the non - joining of the public witness does not vitiate the present trial.
Bottles not clean and dry
23.Ld. Defence counsel strenuously argued that there is non- compliance of Rule 14 which enjoins upon the Food Inspector to use the clean and dry bottles. On the other hand, Ld. SPP argued that all the witnesses have specifically deposed that sample commodity was properly mixed with the help of a measure lying in the tin itself by rotating it in all possible directions several times and the so purchased sample was equally divided into three parts by putting into three clean and dry bottles. Ld. SPP further argued that as the department used to provide clean and dry bottles in packed condition to the F.I there was no need for them to make 9 the bottles again clean and dry at the spot. PW-1 LHA S.K. Nanda specifically deposed that the sample was divided into three equal parts and each part was put in separate clean and dry bottle. PW-2 F.I. R.K. Bhaskar also corroborated the testimony of PW-1 that he divided the sample into three equal parts by putting into three separate clean and dry glass bottles. Ld. defence counsel has not directed the cross-examination of these witnesses to the directions that bottles were not clean and dry. Even otherwise, in view of the judgment reported as State of M.P Versus Narayan, 1998(1) Prevention of Food Adulteration Cases, 183, it is clear that once it is mentioned in the complaint and deposed by the complainant's witnesses that the bottles are clean and dry and even if this fact is not mentioned in the Panchnama, there is nothing to doubt this part of the testimony of the witness. The complainant's witnesses have clearly deposed the fact that the sample was taken in clean and dry bottles and in the absence of any evidence to controvert this fact, I am of the opinion that the bottles which were used were clean and dry and there is no violation of Rule 14 of PFA Act.
Whether sample is representative:
24. 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 argued that as per the report of the Public Analyst, test for Argemone oil was found 'negative' but as per report of the Director, CFL , test for Argemone oil was found 'positive' in the counterpart of the same sample, which is indicative of the fact that either sample was not representative or different kind of oil was put into the 10 different counterparts by the Food Inspector. 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.
25. 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;-
''............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 11 conviction can be sustained. ''
26. 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 ascertain whether the sample was representative or not. In the present case, as per report of the Public Analyst dated 11.8.98 wherein the opinion given by the Public Analyst, Delhi was that the sample does not conform to the standards and the result of the Public Analyst was as follows:-
B.R at 40 Deg. C. : 60
Iodine value : 111.68
Saponification value : 171.98
Acid value : 1.74
Test for Argemone oil : Negative
Polybromide Test : Positive
B.T.T ( Acetic acid method ) : 26.5 Deg. C.
27. The second counterpart of the same sample was analysed by the Director, Central Food Laboratory, Calcutta on dated 05.11.98, the result of analysis of second counterpart of the sample commodity is as under :
B.R at 40 Deg. C. : 59.3
Iodine value : 107.4
Saponification value : 174.9
Acid value : 0.79
Test for Argemone oil : Positive
Polybromide Test : Negative
B.T.T ( Acetic acid method ) : 26.4 Deg. C.
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28. The two analytic reports of the Public Analyst and the Director, CFL in respect of the counterpart of the same sample are divergent to a great extent. One counterpart of the sample commodity shows test for Argemone Oil 'negative' while another counterpart of the same sample commodity shows test for Argemone Oil 'Positive'. Further, Public Analyst finds the test for Polybromide 'Positive' and due to only this reason declared the sample non- conforming to the standard of mustard oil, while Director, CFL, finds the test for Polybromide 'Negative' in the counterpart of the same sample of mustard oil. Complainant has failed to explain how the two analytic reports in respect of same counterpart of the sample commodity are divergent to such an extent. Thereby relying upon Kanshi Nath versus State (supra), I am of the considered view that the sample was not representative as to why divergent reports have been given by two Analysts.
29. In view of the above discussion and reasons, 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 the accused stands acquitted. Bail bond stands cancelled. Surety discharged. File be consigned to Record Room.
Announced in the open court. ( S.K. MALHOTRA ) Dated: 03.05.2010 ACMM-II/NEW DELHI.