Delhi District Court
Da vs . Hari Main Singh Page 1 Of 12 on 22 October, 2013
IN THE COURT OF SHRI BALWANT RAI BANSAL
ADDITIONAL CHIEF METROPOLITAN MAGISTRATEII,
PATIALA HOUSE COURTS, NEW DELHI
C.C. No. 386/03
Food Inspector
Department of PFA
Govt. of NCT of Delhi
A20, Lawrence Road
Indl. Area, Delhi - 35
........ Complainant
Versus
Sh. Hari Main Singh S/o Sh. Ranjeet Singh
Bharti Store,
B3/7, Nand Nagri, Delhi
........ VendorcumProprietor
COMPLAINT U/S 16 OF THE PREVENTION OF
FOOD ADULTERATION ACT, 1954
Serial number of the case : 386/03
Date of the commission of the offence : 28.05.2003
Date of filing of the complaint : 25.11.2003
Name of the Complainant, if any : Ms. Usha Kiran, Food Inspector
Offence complained of or proved : Violation of provisions of Section 2
(ia) (j) & (m) of PFA Act 1954 and
violation of Rule 23 r/w Rule 28 & 29
of PFA Rules; punishable U/s 16(1A)
r/w section 7 of the PFA Act.
CC No. 386/03
DA Vs. Hari Main Singh Page 1 of 12
Plea of the accused : Pleaded not guilty
Final order : Acquitted
Arguments heard on : 11.10.2013
Judgment announced on : 22.10.2013
J U D G M E N T
1. The present complaint has been filed on 25.11.2003 by the Delhi Administration through FI Ms. Usha Kiran against the accused Hari Main Singh. It is stated in the complaint that on 28.05.2003 at about 5.45 PM, FI Ms. Usha Kiran purchased a sample of Dal Arhar, a food article for analysis from Sh. Hari Main Singh S/o Sh. Ranjeet Singh at Bharti Store, B3/7, Nand Nagri, Delhi, where the said food article was found stored for sale and where accused Hari Main Singh was found conducting the business of the said food article at the time of sampling. FI Ms. Usha Kiran purchased approximately 1500 gms of Dal Arhar taken from an open gunny bag bearing no label declaration. The sample was taken after proper mixing the Dal Arhar with the help of a clean and dry Jhaba in all possible directions under the supervision and direction of Sh. Anil Banka, SDM/LHA. Thereafter, the sample commodity was divided into three equal parts by Food Inspector by putting it in three clean and dry bottles and each bottle containing the sample was separately packed, fastened and sealed according to the PFA Act and Rules. The signatures of vendor were obtained on the LHA slip and the wrapper of the bottles containing the sample. Notice was given to accused and price of sample was also paid to the accused. Panchnama was also prepared at the spot. All these documents prepared by Food Inspector were signed by accused CC No. 386/03 DA Vs. Hari Main Singh Page 2 of 12 Hari Main Singh and the other witness namely Sh. Manohar Lal, FA. It is stated that before starting the sample proceedings, efforts were made to get the public witnesses to join the proceedings, but when none came forward, Sh. Manohar Lal, FA was joined as a witness.
2. It is further stated that one counterpart of the sample in intact condition was sent to the Public Analyst, Delhi and two counterparts of the sample in intact conditions were deposited with LHA. The Public Analyst analysed the sample and opined that "The sample is adulterated because it is coloured with synthetic colouring matter viz. Tartrazine".
3. It is revealed that Sh. Hari Main Singh S/o Sh. Ranjeet Singh was the VendorcumProprietor of Bharti Store, B3/7, Nand Nagri, Delhi and as such he is incharge and responsible for day to day conduct of the business of the said shop. 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 for violation of provisions of Section 2 (ia)
(j) & (m) of the PFA Act and also for violation of Rule 23 r/w Rules 28 and 29 of the PFA Rules which is punishable U/s 16 (1A) r/w Section 7 of the PFA Act.
4. The accused was summoned vide order dated 25.11.2003 The accused appeared and moved an application U/s 13 (2) of the PFA Act to get analyzed the second counterpart of the sample from Central Food Laboratory (CFL). The said application was allowed and consequently second counterpart of the sample was sent to CFL, Pune for analysis. Director, CFL on analysing the second counterpart of the sample in question opined vide his Certificate CC No. 386/03 DA Vs. Hari Main Singh Page 3 of 12 dated 13.01.2004 that "The sample does not conform to the standards of split pulse (Dal)Arhar as per the PFA Rules 1955."
5. The prosecution examined Sh. Anil Banka, the then SDM/LHA under whose supervision the sample proceedings were conducted as PW1 towards precharge evidence and vide order dated 26.03.2007, pre charge evidence was closed.
6. Charge for violation of Section 2 (ia) (j) and (m) of the PFA Act and for violation of Rule 23 r/w Rules 28 & 29 of PFA Rules 1955; punishable U/s 16 (1A) r/w section 7 of the Act was framed against the accused vide order dated 05.11.2008 to which accused pleaded not guilty and claimed trial.
7. Thereafter, in order to prove its case, in post charge evidence the prosecution examined three witnesses including Sh. Anil Banka, the then SDM/LHA as PW1, FI Ms. Usha Kiran who conducted the sample proceedings as PW2 and Sh. Manohar Lal, FA who was made a witness in the sample proceedings as PW3 and PE was closed vide order dated 01.07.2010.
8. Statement of accused U/s 313 Cr.P.C. was recorded on 14.01.2011 wherein accused claimed himself to be innocent and opted to lead evidence in his defence. However, no evidence has been led by the accused and accordingly DE was closed vide order dated 06.04.2011.
9. I have heard the Ld. Counsel for the parties and perused the record carefully.
CC No. 386/03 DA Vs. Hari Main Singh Page 4 of 1210. Ld. Counsel for accused has vehemently argued that sample lifted by the Food Inspector was not representative one which is evident from the variations in the report of Public Analyst and Director, CFL for which benefit of doubt is liable to be given to the accused. To fortify this argument, he has relied upon the various authorities titled as State Vs. Rama Rattan Malhotra 2012 (2) FAC 398 Kanshi Nath Vs. State 2005(2) FAC 219, State Vs. Mahender Kumar & Ors, 2008 (1) FAC 177, M/s Raja Ram Seth & Sons & Anr. Vs. Delhi Administration, State (Delhi Administration) Vs. Ram Singh & Ors. 2009 (1) FAC 371, State Vs. Suresh Kumar & Anr. 2010 (2) FAC 204. He further argued that both the Analysts in the present case applied paper chromatography test to detect the presence of synthetic colour in the sample commodity, which is not a sure and valid test and for this reason also accused is liable to be acquitted. In this regard, he has relied upon the judgments passed in Maya Ram Vs. The State of Punjab FAC 1987 (II) 320 and State Vs. Subhash Chand 2012 (2) JCC 1052
11. On the other hand, the Ld. SPP for complainant has argued that variations in the reports of Public Analyst and Director, CFL does not make any difference because report of Director, CFL being conclusive, supersedes the report of Public Analyst and as per report of Director, CFL, the sample was found to be adulterated and, therefore, the accused cannot be given benefit of variations in the reports of PA and CFL and he is liable to be convicted for the adulteration found in the sample. He further argued that paper chromatography test to detect the colour in the sample is a valid test. The Ld. CC No. 386/03 DA Vs. Hari Main Singh Page 5 of 12 Prosecutor has vehemently argued that prosecution has been able to prove its case against the accused and hence he is liable to be convicted.
12. All the witnesses examined by the prosecution have deposed as per the averments made in the complaint.
13. PW2 Ms. Usha Kiran who conducted the sample proceedings has deposed in her examinationinchief that on 28.05.2003, she along with FA Manohar Lal under the supervision of SDM/LHA Sh Anil Banka visited the premises of Bharti Store, B3/7, Nand Nagri, Delhi, where accused Hari Main Singh was found conducting the business of food articles stored there for sale for human consumption including Dal Arhar. She further deposed that they disclosed their identity and intention for purchasing sample of said Dal Arhar for analysis to which accused agreed and thereafter at about 5.45p.m., she purchased 1500 gms of Dal Arhar taken from an open gunny bag bearing no label declaration on payment of Rs. 36/ vide vendor's receipt Ex. PW1/A after mixing of the Dal Arhar with a clean and dry Jhaba. By rotating it in all possible directions. She further deposed that purchased sample quantity was divided into three equal parts by her by putting them into three clean and dry glass bottles and each sample bottle was separately packed, fastened and sealed according to PFA Act and Rules. She further deposed that notice in Form VI Ex. PW1/B was prepared and copy of same was given to the accused and Panchnama Ex. PW1/C was prepared at the spot and all the aforesaid documents were read over and explained to the accused who after understanding the same signed the same. She further deposed that one counterpart of the sample was deposited with Public Analyst on 29.05.2003 CC No. 386/03 DA Vs. Hari Main Singh Page 6 of 12 and remaining two counterparts were deposited with LHA on the same day and report of Public Analyst was received according to which sample was found adulterated. She further deposed that after conclusion of investigation, the entire file was sent to the Director, PFA who accorded the requisite consent for launching the prosecution against the accused and accordingly she filed the present complaint and thereafter intimation letter along with PA's report was sent to the accused by SDM/LHA through registered post.
14. During her deposition, PW2 also placed on record the letter sent by her to the vendor during investigation as Ex. PW2/A, its reply as Ex. PW2/B, letter sent to STO, Ward No. 77 as Ex. PW2/C and letter sent to DHO, North Zone as Ex. PW2/D.
15. PW1 Sh. Anil Banka, the then SDM/LHA corroborated the testimony of PW1 in his examinationinchief and has placed on record the vendor's receipt by which price of sample was paid to the accused as Ex. PW1/A, notice in Form VI and Panchnama prepared at the spot as Ex. PW1/B & Ex. PW1/C respectively, receipt showing deposition of two counterparts of sample with him as Ex. PW1/D, receipt showing deposition of one counterpart of sample with Public Analyst as Ex. PW1/E, report of Public Analyst as Ex. PW1/F, consent given by the Director, PFA for initiating the prosecution against the accused as Ex. PW1/G, complaint filed by FI Ms. Usha Kiran as Ex. PW1/H, copy of intimation letter sent to the accused along with PA report as Ex. PW1/J and photocopy of postal registration receipt as Ex. PW1/K. CC No. 386/03 DA Vs. Hari Main Singh Page 7 of 12
16. PW3 Sh. Manohar Lal , FA who was made a witness at the time of sample proceedings has also deposed more or less on the similar lines as deposed by PW1 & PW2 in their examinationinchief.
17. The accused in his statement U/s 313 Cr.P.C. has not disputed that on 28.05.2003 at about 5.45 PM, he was found conducting the business of food articles including Dal Arhar at his shop M/s Bharti Store, C3/7, Nand Nagri, Delhi, when PFA Team including FI Usha Kiran and FA Manohar Lal under the supervision and direction of SDM/LHA Sh. Anil Banka visited his aforesaid shop and a sample of Dal Arhar was lifted by the Food Inspector Usha Kiran from him which on being analyzed by the Public Analyst as well as Director, CFL found to be adulterated. However, it was contended by the accused that he is innocent and he had made no adulteration as alleged. He further contended that he is petty shopkeeper and used to purchase the said commodity from the market.
18. The present case has been launched against the accused on the basis of report of Public Analyst Ex. PW1/F. The Public Analyst vide its report Ex. PW1/F found the sample lifted from the accused adulterated as it contained synthetic colouring matter viz. 'Tartrazine' which is not permissible in pulses under the PFA Act & Rules. The accused on appearing exercised his right u/s 13 (2) of the PFA Act and consequently second counterpart of the sample selected by the accused was sent to the Central Food Laboratory (CFL), Pune for analyzing the sample and the Director, CFL also vide report/certificate dated 13.01.2004 found the sample adulterated because synthetic colour 'Tartrazine' was detected in the sample.
CC No. 386/03 DA Vs. Hari Main Singh Page 8 of 1219. However, perusal of report of Public Analyst Ex. PW1/F and the Director, Central Food Laboratory (CFL) shows that reports of both the Analysts are divergent to each other and there are variations in respect of material parameters of the sample commodity. As per report of Public Analyst (PA) Ex. PW1/F, the moisture determined by heating the pulverized grains at 130133 deg. C was found to the tune of 8.65%, while Director, Central Food Laboratory found the same to the tune of 9.5%. Similarly, Public Analyst vide its report Ex. PW1/F found the 'foreign matter organic' to the extent of 0.02% , while the Director, CFL found 'foreign matter organic' as Nil. Likewise, in the sample sent to the Public Analyst, 'Grains damaged by fungus, moisture or heating internally' was found to the extent of 0.68% and 'Other food grains' was found to the extent of 0.35%, while the Director, CFL found the 'Damaged grains' to the extent of 2.2% and 'Other edible grains' to the extent of 0.04%.
20. The aforesaid variations in the report of aforesaid two Analysts shows that the sample was not properly mixed up and hence it cannot be said to be representative sample. In State Vs. Rama Rattan Malhotra 2012 (2) FAC 398 after relying upon various judgments titled as Kanshi Nath Vs. State 2005(2) FAC 219 and State Vs. Mahender Kumar & Ors, 2008 (1) FAC 177, the Hon'ble High Court of Delhi has held that, "Since in the present case, variation in public analyst and CFL certificates is more than .3%, it would clearly imply that samples in the present case were not representative.". In Kanshi Nath Vs. State (Supra) even while certain other CC No. 386/03 DA Vs. Hari Main Singh Page 9 of 12 contentions of the accused were rejected, the contention concerning the samples sent to the two test labs not being representative was accepted and the accused were acquitted. In this judgment after referring to the judgment of Pune Municipal Corporation Vs. Pawan Kumar Saraf 1999(1) FAC 1 and Municipal Corporation of Delhi Vs. Bishan Sarup 1972 FAC 273, the Hon'ble Delhi High Court has observed that, "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".
21. Similarly, It has been held by the Hon'ble Delhi High Court in M/s Raja Ram Seth & Sons & Anr. Vs. Delhi Administration that, "If the variations in the report of PA and CFL is more than 0.3 % which is stated to be permissible limit, it cannot be said that identical representative samples were sent to both the Public Analyst and CFL and therefore it raises a doubt about the sample of being not homogenized and no conviction is permissible on the basis of said reports and benefit of doubt is liable to be given to the accused." Similar view has been taken by the Hon'ble High Court of Delhi in State (Delhi Administration) Vs. Ram Singh & Ors. 2009 (1) FAC 371. Reliance may also be placed upon State Vs. Suresh Kumar & Anr. 2010 (2) FAC 204.
22. In view of law laid down in the aforesaid authorities, since there are variations in the report of Public Analyst (PA) and Director, Central Food Laboratory which are beyond the permissible limit of .3 %, it can be safely CC No. 386/03 DA Vs. Hari Main Singh Page 10 of 12 inferred that sample lifted in the present case was not representative one. Therefore, benefit of doubt is liable to be given to the accused.
23. Apart from this, both the Analysts applied Paper Chromatography method for detecting the artificial colouring matter in the sample commodity of Dal Arhar. The Hon'ble Punjab and Haryana High Court in Maya Ram Vs. The State of Punjab FAC 1987 (II) 320 has held that paper chromatography test is not a sure test to detect the colour in the sample commodity. The Hon'ble High Court of Delhi in State Vs. Subhash Chand 2012 (2) JCC 1052, after relying upon the various judgments of Hon'ble Punjab & Haryana High Court in Raj Kumar Vs. Union Territory, Chandigarh 1991 (1) FAC 38, Kartar Singh Vs. State of Haryana, 2000 (2) FAC 243, Maya Ram Vs. The State of Punjab (cited supra) and Balmukand Singh Vs. State of Punjab 2008 Cril. LJ 1084, held that the paper chromatography test was not sufficient to conclude as to whether permitted or unpermitted colouring material has been used. The expert has to examine carefully the colouring matter by applying various tests by excluding the use of permitted colours, before reaching to the conclusion to detect the un permitted colour. Thus, it was all the more necessary for the concerned laboratory to have had conducted such necessary tests to rule out the use of permitted colouring material.
24. In the present case, no other method apart from the Paper Chromatography test has been applied by both the Analysts to detect the adulteration or presence of colouring matter in the sample commodity.
CC No. 386/03 DA Vs. Hari Main Singh Page 11 of 12Therefore, in view of law laid down in the aforesaid authorities cited supra, report of Public Analyst as well as Director, CFL cannot be said to be a valid and sure report.
25. In view of above reasons and discussions, I am of the considered opinion that the prosecution has failed to prove its case against the accused beyond reasonable doubt, benefit of which must go in favour of accused. Accordingly, benefit of doubt is given to the accused and he is acquitted of the charges leveled against him.
File be consigned to Record Room.
Announced in the open Court (Balwant Rai Bansal)
on 22nd October, 2013 ACMMII/ PHC/ New Delhi
CC No. 386/03
DA Vs. Hari Main Singh Page 12 of 12
CC No. 386/03
DA Vs. Hari Main Singh
22.10.2013
Present: Sh. Masood Ahmad, Ld. SPP for complainant.
Accused with counsel Sh. M.L. Narang.
Vide my separate Judgment of even date dictated and announced in the open court, the accused stands acquitted of the charges leveled against him. Previous Bail Bond / Surety Bond stands cancelled. Surety stands discharged. Endorsement on the documents of the previous surety, if any, be cancelled.
Accused is directed to furnish fresh bail bonds in compliance of Section 437A Cr.P.C. He has furnished the B/B & S/B in the sum of Rs. 15,000/ each. Same is accepted.
File be consigned to Record Room.
(Balwant Rai Bansal) ACMMII/PHC/ND/22.10.2013 CC No. 386/03 DA Vs. Hari Main Singh Page 13 of 12