Delhi District Court
Food Inspector vs . 1. Praveen Kumar Aggarwal on 29 November, 2012
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IN THE COURT OF SHRI MOHINDER VIRAT,
ADDITIONAL CHIEF METROPOLITAN MAGISTRATEII,
PATIALA HOUSE COURTS, NEWDELHI
Food Inspector Vs. 1. Praveen Kumar Aggarwal
Department of PFA S/o Shri Murari Lal Aggarwal
Govt. of Delhi. M/s Arun Provision Store,
Shop No. 20/20, Trilok Puri,
Central Market, Delhi91.
J U D G M E N T
Serial number of the case :139/99 Date of the commission of the offence : 18.02.99 Date of filing of the complaint :23.10.99 Name of the Complainant, if any : Shri S.P. Singh, F.I. Offence complained of or proved : S. 2 (ia) (a) (c) (l) & (m) of PFA Act; punishable U/s 16 (1A), r/w S. 7 of the PFA Act 1954. Plea of the accused : Pleaded not guilty Final order : Acquitted. Arguments heard on :29.11.2012. Judgment announced on :29.11.2012. Brief Statement of reasons for such decision
1. The present complaint has been filed on 23.10.99 by the Delhi Administration through FI Sh. S.P. Singh against the above mentioned CC No. 139/99 FI Vs. Praveen Kumar Aggarwal Page 1 of 9 ::2::
accused. It is averred in the complaint that on 18.02.99 at about 2:30 PM, FI Sh. S.P. Singh purchased a sample of Dal Chana, a food article for analysis from Praveen Kumar Aggarwal, S/o Sh. Murari Lal Aggarwal of M/s Arun Provision Store, Shop no. 20/20, Trilok Puri, Central Market, Delhi91, where the said food article was found stored for sale and the accused was found conducting the business of the said food article at the time of sampling. The sample consisted of 750 gms of Dal Chana (ready for sale) taken from an open gunny bag, bearing no label or declaration. The sample was taken under the supervision and direction of Sh. C. Uday Kumar, SDM / LHA. The sample of Dal Chana was taken after properly mixing it with the help of a clean and dry JHABA. The FI divided the sample into three equal parts then and there by putting them in three separate clean and dry bottles. Each sample bottle was separately packed, fastened and sealed as per the requirements. The vendor's signature were obtained on the LHA slip and the wrapper of the sample bottles as per requirements. Notice was given to accused and price was also paid to him. Panchnama was also prepared at the spot. Rest of the necessary documents were prepared at the spot according to PFA Act & Rules and the signatures of the accused and witness were obtained thereon.
CC No. 139/99 FI Vs. Praveen Kumar Aggarwal Page 2 of 9
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2. The complaint further runs to the effect that one counterpart of the sample was sent to the PA, Delhi in intact condition and two intact counterparts were deposited with the LHA. The PA analysed and found the sample not conforming to the standards laid down under item no.
A.18.06.12 of appendix 'B' of PFA Rules 1955, because percentage of weevilled grains was more than the maximum prescribed limit of 3%.
3. Further, said Sh. Praveen Kumar Aggarwal was found to be Vendor cumProprietor of M/s Arun Provision Store and as such he was incharge and responsible for the day to day conduct of the business of the said store. Thereafter, the entire case file was sent to the Director PFA who accorded the requisite consent U/s 20 of the Act and consequent thereto the present complaint was filed.
4. The accused was summoned vide order dated 23.10.99. On appearing the accused got analysed the second counterpart of the sample from Central Food Laboratory, Calcutta who vide its Certificate dated 05.01.2000 also opined the sample to be adulterated.
5. Charge for the violation of the Provisions of Section 2 (ia)(a) (c) (l) &
(m) of PFA Act 1954, punishable U/s 16 (1A), r/w S. 7 of the PFA Act 1954 CC No. 139/99 FI Vs. Praveen Kumar Aggarwal Page 3 of 9 ::4::
was framed against the accused, to which he pleaded not guilty and claimed trial.
6. To Prove its case, the prosecution got examined three witnesses namely Shri C. Uday, SDM / LHA (PW1), Shri S.P. Singh, Food Inspector (PW2) and Shri Pramod Kothekar, Food Inspector (PW3).
7. Statement of the accused U/s 313 Cr. P.C. was recorded whereby, the accused opted to lead DE. Two witnesses namely Shri Satish Kumar (DW1) and Shri Mahender Kumar (DW2) were examined on behalf of the accused.
8. I have gone through the entire judicial record and heard the Ld. SPP for the Complainant as well as Ld. counsel for the accused.
9. The prosecution against the accused was launched on the basis of the PA's Report, which revealed that the sample was not conforming to the standards laid down under item no. A.18.06.12 of appendix 'B' of PFA Rules 1955, because percentage of weevilled grains was more than the maximum prescribed limit of 3%.
10. The Director CFLCalcutta analysed the second counterpart of the CC No. 139/99 FI Vs. Praveen Kumar Aggarwal Page 4 of 9 ::5::
sample and he too found the sample to be adulterated.
11. The Ld. defence counsel has argued in defence that the analytical results of both the experts i.e. PA & CFL are highly divergent and contradictory to each other and thus can not be relied upon. He further argued that the sample sent to two labs were of two different character and hence there is vast differences in their results. Per contra Ld. SPP for complainant has vehementally argued that the CFL Report superseds the PA's Report and having been so superseded, the report of PA could not, therefore, be relied upon. He has further argued that the prosecution has proved its case beyond reasonable doubt and thus accused is liable to be held guilty.
12. The arguments as advanced by the Ld. SPP for the complainant has been considered by the Hon'ble Supreme Court in the case of MCD Vs. Ghisa Ram, AIR 1967 SC 970, wherein it was held that even after the certificate of CFL, it is open to the accused to show that in the facts of the given case and on the concrete objective grounds that the sample sent for analysis to the Director could not have been taken to be a representative sample of the article of food from which it is taken and if this contention is found to be correct, conviction passed on the certificate will not be CC No. 139/99 FI Vs. Praveen Kumar Aggarwal Page 5 of 9 ::6::
sustainable.
13. This judgment has been endorsed by the Hon'ble High Court of Delhi in Kanshi Nath Vs. State, 2005(2) FAC 219 Delhi High Court, MCD Vs. Bishan Swaroop, 1972 FAC 273 Full Bench Delhi High Court and in Criminal Appeal No. 1158 (2007) vide judgment dated 08.09.2011.
14. In State Vs. Mahender Kumar & Ors., 2008(1) FAC 177 again a reference was made to the case of Kanshi Nath and it was reiterated 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.
15. Now coming to the factual matrix of the case, it be seen that the PA found moisture and weevilled grains to the tune of 13.1 and 4.68% respectively whereas, the Director CFL found the same to the tune of 11.4 and 13.5% respectively. Further, PA found damaged grain to the tune of 0.13% whereas, the Director CFL found it absent. The PA has not conducted the test w.r.t Residual pesticides whereas the Director CFL have shown pesticides present therein. In PA's Report Uric Acid content CC No. 139/99 FI Vs. Praveen Kumar Aggarwal Page 6 of 9 ::7::
has not been shown present whereas the Director CFL found the same to the tune of 150 mg/kg. Furthermore, the PA has found no insect either living or dead insects in the sample counterpart whereas 20 living insects were found by the Director CFL on analysing the second counterpart of the same sample. Thus, the report of the Director CFL is totally contradictory to the Report of the PA.
16. As far as the question with regard to presence of 20 living insects are concerned, the Ld. defence counsel during the course of arguments argued that the second counterpart of the sample was got anlyased from the Director CFL after a gap of 10 months from lifting of the sample and it is quite possible that due to lapse of time and not wrapping / tightening the cap of the bottle well enough, the insects might have developed in this period. To strengthen his arguments he stated that had there been insects in the sample commodity, the same should have been found by the PA. He further argued that at the time of sample proceedings no insect was visible with naked eyes, as deposed by PWs. None of the prosecution witnesses have been able to put forth any cogent reason as to how living insects developed in the sample commodity if the sample bottles were kept air tight. PW 2 FI Shri S.P. Singh during his crossexamination has admitted that no insect was visible with naked eyes at the time of sample CC No. 139/99 FI Vs. Praveen Kumar Aggarwal Page 7 of 9 ::8::
proceedings and also deposed that the infestation increases with the lapse of time.
17. To fortify his arguments, the Ld. defence counsel, has relied upon the case law titled as State Vs. A.P. Goel 2001 [1] FAC and MCD Vs. Ved Prakash 1984 [2] FAC
18. In State Vs. A.P. Goel 2001 [1] FAC a sample of wheat was lifted on 21.1.1986 which on being analysed by the PA was found adulterated because of having been found 8 living brown and 20 dead brown insects therein. The Director CFL vide its certificate dated 21.11.1986 i.e. after 10 months of lifting of the sample, also found substantial amount of dead and living insects therein. Hon'ble Delhi High Court after relying upon case titled as MCD Vs. Ved Prakash(Supra) accepted the appeal of the appellant. In Ved Prakash's case, it was held by the Hon'ble Delhi High Court that once living insects are found in the sample sent to laboratory after five months, it can safely be inferred that the sample placed in a bottle, was not air tight and sealed.
19. In the present case the CFL examined the sample after a period of more than 10 months and found 20 living insects therein and hence, it can CC No. 139/99 FI Vs. Praveen Kumar Aggarwal Page 8 of 9 ::9::
very safely be said that the sample bottles were not properly stored and that being so the insects might have developed in these 10 months.
20. In view of the aforesaid discussion, observation and findings, this court is of the considered view that the prosecution has failed to prove its case beyond reasonable doubt and the only plausible finding which can be given against the accused is that of 'NOT GUILTY'. The accused is accordingly acquitted in the present case. Ordered accordingly. File be consigned to Records after due compliance.
Announced in the open court (Mohinder Virat)
on 29 Nov. 2012
th
ACMMII/New Delhi
CC No. 139/99
FI Vs. Praveen Kumar Aggarwal Page 9 of 9