Delhi District Court
R/O H. No. D-253 vs Food Inspector on 9 May, 2016
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IN THE COURT OF SH. RAKESH PANDIT,
ASJ-01, NEW DELHI DISTRICT, PATIALA HOUSE COURTS, NEW DELHI
Case ID No.02403R0072792015
CA No. 36/15
Narender Kumar
S/o Sh. Prem Chand
M/s Narender Store,
Shop No. 208, Main Road Jharoda,
Delhi-110084
R/o H. No. D-253, Surender Colony,
Village Jharoda, Delhi-84. ....Appellant
Vs.
Food Inspector
Govt. Of NCT of Delhi
Department of PFA .... Respondent
Date of receiving of Appeal : 24.04.2015
Date of arguments : 09.05.2016
Date of judgment : 09.05.2016
JUDGMENT
1 By this judgment I will dispose of appeal u/sec.374 Cr.PC. filed on behalf of convict Narender Kumar against the judgment dated 06.04.2015 and order on sentence dated 15.04.2015 passed by Sh. Gaurav Rao, Ld. ACMM-II, Patiala House Court, New Delhi.
CA No. 36/15 Narender Kumar Vs. State page 1 of 7
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2 The brief facts of the case as per record and from trial court
record are that accused is running an establishment namely M/s Narender Store, 208 Main Road, Jharoda, Delhi-110084. On 07.08.2009 at about 1.00 p.m. Food Inspector Sh. D. V. Singh visited the said place and purchased 1500 grams of "Dal Arhar" (ready for sale) from accused. FI was accompanied with SDM/LHA Sh. Nityanand. The said Dal Arhar was purchased for the purposes of analysis under PFA Act. The same sample was divided into three parts, packed as per Rules of PFA. Panchanama was prepared. One sample was sent for analysis to Public Analyst. As per the report of Analyst, sample did not confirm to the standard because "The sample is adulterated because it is coloured with synthetic colouring matter viz. tartrazine."
3 As the sample was failed, prosecution was launched by Food Inspector by filing complaint dated 21.12.2009 with the court. Accused was summoned. He has exercised his right u/sec.13(2) PFA Act and get the sample analyzed by CFL. CFL reported "I am of the opinion that, the above sample does not conform to the standards of Split Pulse (Dal) Arhar as per PFA Rules, 1955 as per test perform" (sample failed on account of detection of tartrazine).
4 Charge was framed against accused u/sec.2(ia) (a) (j) (m) read with sec.7 of PFA Act, 1954 punishable u/sec.16(1A) of PFA Act.
5 After trial, vide judgment dated 06.04.2015, accused was convicted for offence u/sec.16(1A) of PFA Act and vide order on sentence dated 15.04.2015, accused was directed to undergo simple imprisonment for a period of 18 months and fine of Rs.10,000/- and in default of payment CA No. 36/15 Narender Kumar Vs. State page 2 of 7 3 of fine SI of 30 days.
6 In this appeal, the accused has assailed the judgment on the following grounds:-
(i) Non-compliance of Sec.10(7) of PFA Act and Rule i.e. independent witnesses were not joined.
(ii) Non-compliance of Rule 14 of PFA Rules i.e. the bottles, jhawa, polythene were not made clean and dried at the spot by the food inspector or any other official.
(iii) Tartrazine colour is permitted in food articles.
(iv) Paper chromatography test is not a reliable test.
(v) There is variation in different reports so the sample was not properly homogenized.
7 No reply was filed by respondent/state and the matter was argued orally.
8 I have gone through the record, Trial Court record and have heard the submissions of Ld. counsel for appellant and Ld. SPP for State.
9 It is argued by counsel for appellant that no public witness was present in the proceedings nor efforts were made to join any public witnesses. As far as this argument is concerned, the same argument was raised before the Ld. Trial Court. The same was dealt by the trial court from para 17 to 23 of the judgment. As far as opinion/finding of the trial court regarding this argument is concerned, I do not find any infirmity in those findings and the same are upheld and the arguments regarding this fact does not find any force and thus rejected.
10 It is argued by counsel for accused that the sample was not CA No. 36/15 Narender Kumar Vs. State page 3 of 7 4
homogenized/non-proper mixing of sample and due to that reason the sample was not representative. This leg of argument was also raised before the trial court and was dealt in para 48 to 57 of the judgment. The same appears to be correct and the reasoning given in the same does not require any interference.
11 It is further stated that there is variation in the report of PA and CFL and due to that reason benefit goes in favour of the accused. This line of argument was done before the trial court and was dealt in para 58 to 91 of the judgment. I do not want to differ from the reasoning given by the trial court and thus the same is upheld.
12 It is further argued that both the scientists that Public Analyst as well as at CFL had used to detect colour by way of Paper Chromatography Test and the same is not a reliable test for detecting colour in food articles. It is further stated that percentage of colour is not mentioned and the colour detected is not harmful to health. This leg of arguments was also done before the trial court and are being dealt by it in para 104 to 106. I do not find any other opinion than that given by the trial court and thus the arguments addressed by Ld. counsel for appellant in this regard are rejected and the reasoning given by the trial court is upheld.
13 It is further argued that compliance u/sec.14(2) PFA Rules was not proved on record by the prosecution. It is stated that witnesses are deposing differently with respect to the cleanliness of jhaba etc. It is further stated that it was the duty of the prosecution to prove these facts. These arguments were also addressed before the trial court. The relevant CA No. 36/15 Narender Kumar Vs. State page 4 of 7 5 part of the judgment dealing with these arguments are from para 24 to 42 (Rule 14 of PFA) and para 43 to 47 (discrepancies in testimony of witnesses) of the judgment.
14 Ld. Trial court while dealing with these arguments had laid stress that the deposition of the PWs was recorded after considerable period of time so certain inconsistencies are bound to come. It is further stated in the judgment that these discrepancies should be ignored if otherwise, the deposition appears to be not faulty or acceptable.
15 As far as the arguments in this regard is concerned, the law discussed by the trial court is correct and the same is self explanatory. However, as far as the analysis of facts are concerned, to my opinion, the same requires some more elaboration.
16 As far as Rule 14 of PFA Rules are concerned, it spells out that the FI shall use dry bottles or containers for the purposes of sampling. However, this fact was elaborated further by Hon. Supreme Court in Varghese Vs. Food, 1989 (II) Prevention of Food Adulteration Cases, 236 stating that "it must be the endeavour of the FI to use clean and dry implements in sampling the articles of food. If unhygienic methods are adopted, it will effect the result of analysis. So, the Hon. Supreme Court use the word "implements" instead of only "dry and clean bottles/containers". Similarly, in other judgments, i.e. State of Haryana Vs. Kishan Kumar CLT 559, it was observed that the prosecution had not stated that the "weighing scale" was clean. Similarly, in other judgments, like Sardar Mal Jain, 1996 (2) Prevention of Food Adulteration Cases, 203, it was stated that the newspaper on which the Barfi was weighed was not CA No. 36/15 Narender Kumar Vs. State page 5 of 7 6 clean. Similarly, in Shashi Kant Vs. State of UP, 1983 (1) Prevention of Food Adulteration Cases 90, it was observed that the "bhagona" was not proved to be clean and dry.
17 So, accordingly, it can be said that the law which can be crystallized from various judgments of Hon. High Courts as well as Hon. Supreme Court is that if in evidence, the prosecution states that the sample commodity had touched a surface of an "implement", it is the duty of the prosecution to prove beyond reasonable doubt that the said implement was clean and dry and thus could not have added any impurity to the sample. However, it is not the law that the FI shall spell out on which surfaces the sample commodity had touched while sampling. However, if he chooses to spell out the implements/surfaces with which the sample commodity came into contact/touch, the same must be proved as clean and dry.
18 In the present case, the PW1/FI D.V. Singh had not stated anything regarding the involvement of envelop/brown paper sheet "in examination-in-chief" on which the sample commodity was put before weighing. However, in his cross-examination dated 02.09.2011 he had stated that the said Dal was weighed by putting it on a brown paper sheet.
19 PW2/LHA Nityanand also deposed that Dal was weighed by putting it into a brown paper envelop. PW3 FA Mittarpal deposed that Dal was weighed in transparent polythene.
Hence, as per record, there appears that some surface of a article was used by the FI before weighing it i.e. brown paper sheet or brown envelop or polythene. However, prosecution failed to prove that the CA No. 36/15 Narender Kumar Vs. State page 6 of 7 7 said brown paper sheet or brown envelop or polythene was clean and dry.
So, in these circumstances, there is non-compliance of Rule 14 of PFA Rules and thus the benefit goes in favour of appellant.
20 So, in these circumstances, the judgment and order on sentence of the trial court is reversed.
21 Accused Narender Kumar is acquitted of the charges u/sec.16(1A) read with sec.7 of PFA Act.
22 Bail Bond u/sec.437A Cr.P.C. furnished. Accepted for six months.
23 TCR be sent back with copy of the order.
24 File of appeal be consigned to Record Room.
ANNOUNCED In the open Court (RAKESH PANDIT)
today i.e. 09.05.2016 ASJ-01/New Delhi District
Patiala House Courts/New Delhi
CA No. 36/15 Narender Kumar Vs. State page 7 of 7
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CA No. 36/15
Narender Kumar Vs. Food Inspector
09.05.2016
Present: Sh. R. D. Goel counsel with appellant.
Sh. A. K. Mishra Ld. SPP for State.
Vide separate judgment the appeal filed by the appellant is disposed is allowed. Accused Narender Kumar is acquitted of the charges u/sec.16(1A) read with sec.7 of PFA Act.
TCR be sent back with copy of the order.
Bail Bond u/sec.437A Cr.P.C. furnished and accepted for six months.
File of appeal be consigned to Record Room.
(Rakesh Pandit)
ASJ-01/PHC/New Delhi District
09.05.2016
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