Delhi District Court
Da vs . Kishan Lal Nagpal Page 1 Of 20 on 25 September, 2013
IN THE COURT OF SHRI BALWANT RAI BANSAL
ADDITIONAL CHIEF METROPOLITAN MAGISTRATEII,
PATIALA HOUSE COURTS, NEW DELHI
C.C. No. 05/03
Food Inspector
Department of PFA
Govt. of NCT of Delhi
A20, Lawrence Road
Indl. Area, Delhi - 35
........ Complainant
Versus
Sh. Kishan Lal Nagpal S/o Sh. Tola Ram
M/s Manish Trading,
7/369, Jwala Nagar,
Shahdara, Delhi - 110032
R/o 7/369, Jwala Nagar, Shahdara, Delhi - 32
........ VendorcumProprietor
COMPLAINT U/S 16 OF THE PREVENTION OF
FOOD ADULTERATION ACT, 1954
Serial number of the case : 5/ 3
Date of the commission of the offence : 05/08/02
Date of filing of the complaint : 06.01.2003
Name of the Complainant, if any : Shri S.B.Sharma, Food Inspector
CC No. 05/03
DA Vs. Kishan Lal Nagpal Page 1 of 20
Offence complained of or proved : Violation of provisions of Section 2
(ia) (a) (j) & (m) of PFA Act 1954
and violation of provisions of Rule
23 r/w Rule 28 & 29 of PFA Rules;
punishable U/s 16(1A) r/w section 7
of the PFA Act.
Plea of the accused : Pleaded not guilty
Final order : Acquitted
Arguments heard on : 09.09.2013
Judgment announced on : 25.09.2013
J U D G M E N T
1. The present complaint has been filed on 06.01.2003 by the Delhi Administration through FI Sh. S.B. Sharma against the accused Kishan Lal Nagpal. It is stated in the complaint that on 05.08.2002 at about 6.00 PM, FI Sh. Ranjeet Singh purchased a sample of Dal Arhar, a food article for analysis from Sh. Kishan Lal Nagpal S/o Sh. Tola Ram at M/s Manish Trading, 7/369, Jwala Nagar, Shahdara, Delhi32, where the said food article was found stored for sale and where accused Kishan Lal Nagpal was found conducting the business of the said food article at the time of sampling. FI Sh. Ranjeet Singh purchased approximately 750 gms. of Dal Arhar (ready for sale) 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 by rotating the Jhaba under the supervision and direction of Sh. S.C. Tyagi, SDM/LHA. Thereafter, the sample commodity was divided into three equal parts by Food Inspector by putting it in three separate clean and dry CC No. 05/03 DA Vs. Kishan Lal Nagpal Page 2 of 20 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 given to him vide vendor receipt dated 05.08.2002. Panchnama was also prepared at the spot. All these documents prepared by Food Inspector were signed by accused Kishan Lal Nagpal and the other witness namely Sh. S.B. Sharma, FI. It is stated that before starting the sample proceedings, efforts were made to get the public witnesses to join the proceedings, but none came forward and then Sh. S.B. Sharma, FI joined as witness.
2. It is further stated that one counterpart of the sample bearing LHA code No. SCT/LHA/SDM/002107 in intact condition was sent to the Public Analyst, Delhi and two counterparts of the sample in intact condition 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. Kishan Lal Nagpal S/o Sh. Tola Ram was the VendorcumProprietor of M/s Manish Trading, 7/36, Jwala Nagar, Shahdara, Delhi32 at the time of sampling and as such he is incharge and responsible for day to day conduct of the business of the said firm. After conclusion of investigation, 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 against the accused for violation of provisions CC No. 05/03 DA Vs. Kishan Lal Nagpal Page 3 of 20 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 06.01.2003 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 dated 25.03.2003 that "The sample does not conform to the standards of Arhar Dal as per PFA Rules 1955".
5. The prosecution examined Sh. S.C. Tyagi, the then SDM/LHA under whose supervision and direction sample proceedings were conducted as PW1, FI Sh. Ranjeet Singh who conducted the sample proceedings as PW2 and FI S.B. Sharma, who has filed the present complaint and was made a witness in the sample proceedings as PW3 towards precharge evidence and vide order dated 23.07.2008, pre charge evidence was closed.
6. Charge for violation of Section 2 (ia) (a) (j) and (m) of the PFA Act and for violation of Rule 23 r/w Rule 28 and 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 23.05.2009 to which accused pleaded not guilty and claimed trial.
CC No. 05/03 DA Vs. Kishan Lal Nagpal Page 4 of 207. Thereafter, in order to prove its case, in post charge evidence the prosecution examined three witnesses including Sh. S.C. Tyagi, the then SDM/LHA as PW1, FI Ranjeet Singh as PW2 and FI S.B. Sharma as PW3 and PE was closed vide order dated 08.12.2009.
8. Statement of accused U/s 313 Cr.P.C. was recorded on 12.03.2010 wherein accused claimed himself to be innocent and opted to lead evidence in his defence.
9. Accused in his defence examined his brother Sh. Jagdish Lal as DW1, himself as DW2 and one Sh. Suresh Kumar as DW3 and DE was closed vide order dated 19.01.2013.
10. I have heard the Ld. Counsel for the parties and perused the record carefully.
11. Ld. Counsel for accused has vehemently argued that accused had purchased the sample commodity from M/s Pyarelal Suresh Kumar vide Bill Ex. DW2/A and sold the sample commodity in the same condition as purchased by him from the aforesaid company and, therefore, accused is entitled to the benefit of warranty U/s 19 (2) of PFA Act. He further argued that there is violation of Section 10 (7) of PFA Act as no public witness has been joined by the Food Inspector in the sample proceedings. He further argued that even otherwise, 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, benefit of which is liable to be given to the accused. Ld. Counsel for accused further argued that Public Analyst in its CC No. 05/03 DA Vs. Kishan Lal Nagpal Page 5 of 20 report has not disclosed the method applied for detecting the synthetic colour in the sample commodity, whereas the test applied by the Director, CFL is paper chromatography test, which is not a sure and valid test and for this reason also accused is liable to be acquitted.
12. On the other hand, the Ld. SPP for complainant has argued that accused has not been able to prove that he has sold the sample commodity in the same state in which he purchased from the supplier and, therefore, no warranty U/s 19 (2) of PFA Act can be granted to the accused. He further argued that as per report of Director, CFL, the sample of Dal Arhar was found not conforming to the standards of Dal Arhar and the report of Director, CFL being conclusive, supersedes the report of Public Analyst and, therefore, accused cannot be given benefit of variations in the reports of PA and CFL. He further argued that paper chromatography test to detect the colour in the sample is a valid test. The Ld. Prosecutor has vehemently argued that prosecution has been able to prove its case against the accused and hence he is liable to be convicted.
13. All the witnesses examined by the prosecution have deposed as per the averments made in the complaint.
14. PW2 FI Sh. Ranjeet Singh who is the complainant and conducted the sample proceedings in the present case deposed in his examinationinchief that on 05.08.2002, he along with FI S.B. Sharma and Sh. S.C. Tyagi, SDM/LHA visited the premises of M/s Manish Trading, 7/369, Jwala Nagar, Shahdara, Delhi32 where accused was found conducting the CC No. 05/03 DA Vs. Kishan Lal Nagpal Page 6 of 20 business of food articles stored there for sale for human consumption including Dal Arhar. He further deposed that they disclosed their identity and intention for purchasing a sample of Dal Arhar for analysis to which accused agreed and thereafter sample of 750 gms of Dal Arhar was taken from an open gunny bag bearing no label declaration after properly mixing the Dal Arhar with the help of a clean and dry jhaba by rotating it in all possible directions. He further deposed that thereafter he divided the sample into three equal parts by putting it into three clean and dry bottles and each sample bottle was separately packed, fastened and sealed according to PFA Act and Rules. It is further deposed by PW1 that sample price Rs. 21/ was accepted by accused and then Vendor receipt Ex. PW1/A, Notice in From VI Ex. PW1/B and Panchnama Ex. PW1/C were prepared and a copy of notice was also given to the accused and all the aforesaid documents were read over and explained to the accused who after understanding the same signed the same. PW1 further deposed that one counterpart of the sample was deposited with the PA on 06.08.2002 in intact condition and the remaining two counterparts of the sample were deposited in intact condition with the LHA on the same day. He further deposed that after receipt of PA report, according to which sample was found adulterated, he further investigated the matter and sent a letter to STO, Ward No. 82 vide Ex. PW2/A and after completion of investigation, the entire case file was sent to the Director, PFA who accorded requisite consent for launching complaint against the accused and thereafter present complaint was filed by FI S.B. Sharma.
CC No. 05/03 DA Vs. Kishan Lal Nagpal Page 7 of 2015. PW1 Sh. S.C. Tyagi, the then SDM/LHA corroborated the aforesaid testimony of PW2 in his examinationinchief. During his deposition PW1 has also placed on record vendor receipt by which sample price was given to the accused as Ex. PW1/A, notice in Form VI and Panchnama prepared at the spot as Ex. PW1/B and Ex. PW1/C respectively, statement made by the accused at the spot as Ex. PW1/D, receipt showing deposit of two counterparts with him as Ex. PW1/E, receipt by which one counterpart of the sample was deposited with PA as Ex. PW1/F, report of Public Analyst as Ex. PW1/G, consent given by the Director, PFA for initiating the prosecution against the accused as Ex. PW1/H, complaint as Ex. PW1/J, copy of intimation letter sent to the accused as Ex. PW1/K.
16. PW3 Sh. S.B. Sharma, Field Assistant who had accompanied the raiding party and was made a witness in the sample proceedings in his evidence has deposed more or less on the similar lines as deposed by PW1 and PW2 in their examinationinchief.
17. PW1 in his crossexamination denied the suggestion that Jhaba was dirty with which the Dal was mixed. He stated that bottles were already dry and clean and the same were not made again dry and clean at the spot. He denied the suggestion that bottles were also dirty and containing colours. He further denied the suggestion that sample was found adulterated due to wrong sampling.
18. Similar suggestions were put to PW2 and PW3 in their crossexamination that Jhaba was dirty, bottles were also dirty and containing CC No. 05/03 DA Vs. Kishan Lal Nagpal Page 8 of 20 some colour and further that sample failed due to wrong sampling, which were denied by them.
19. Accused in his statement U/s 313 Cr.P.C. has not disputed the fact that on 05.08.2002 at about 6.00 PM, he was found conducting the business of food articles including Dal Arhar in his shop at M/s Manish Trading, 7/369, Jwala Nagar, Shahdara, Delhi, when PFA Team including FI Ranjeet Singh and FI S.B. Sharma under the supervision and direction of SDM/LHA Sh. S.C. Tyagi visited his shop and a sample of Dal Arhar was lifted by the Food Inspector from him which on analysis by Public Analyst was found adulterated as it contained synthetic colouring material viz. Tartrazine. However, it was contended by the accused that the sample failed due to bad sampling as bottles were not made clean and dry.
20. The present case has been launched against the accused on the basis of report of Public Analyst which has been proved on record as Ex. PW1/G. The Public Analyst vide its report Ex. PW1/G found the sample lifted from the accused adulterated as it contained synthetic colouring matter viz. Tartrazine which is not permissible under PFA Act. 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, who also vide his report/certificate dated 25.03.2003 found the sample not conforming to the standards of Dal Arhar as synthetic colour 'Tartrazine' was detected.
CC No. 05/03 DA Vs. Kishan Lal Nagpal Page 9 of 2021. From the aforesaid crossexamination of the PWs and statement of accused U/s 313 Cr.P.C., the defence of the accused appears to be that due to bad sampling procedure adopted by the Food Inspector as the Jhaba and sample bottles used in the sample proceedings were not made clean and dry by him, the sample failed and synthetic colour was detected for which he cannot be held guilty. The accused had also claimed for benefit of warranty U/s 19 (2) of PFA Act as he had purchased the sample commodity from M/s Pyarelal Suresh Kumar.
22. First of all, I shall deal with the contention of the accused regarding his claim for benefit of warranty U/s 19 (2) of PFA Act.
23. Section 19 (2) of PFA Act reads as under: A vendor shall not be deemed to have committed an offence pertaining to the sale of any adulterated or misbranded article of food if he proves:
(a) that he purchased the article of food
(i) in a case where a licence is prescribed for the sale thereof, from a duly licensed manufacturer, distributor or dealer,
(ii) in any other case, from any manufacturer, distributor or dealer, with a written warranty in the prescribed form; and
(b) that the article of food while in his possession was properly stored and that he sold it in the same state as he purchased it.
24. In the present case, it is not in dispute that sample of Dal Arhar was lifted from the accused which on being analyzed by the Public Analyst and Director, CFL was found to be adulterated as synthetic colouring material viz.
CC No. 05/03 DA Vs. Kishan Lal Nagpal Page 10 of 20'Tartrazine' was detected in the sample. The accused has claimed that he had purchased the Dal Arhar from M/s Pyarelal Suresh Kumar and sold the said Dal Arhar in the same condition/state as purchased by him from the aforesaid company. However, it is evident from Notice in Form VI Ex. PW1/B prepared at the spot, which is not in dispute, that the accused neither disclosed source of purchase nor produced any Bill of purchase of sample commodity at the time of sample proceedings. Even in the crossexamination of PWs and the statement recorded U/s 313 Cr.P.C., no such plea has been taken by the accused that he had purchased the sample commodity from M/s Pyarelal Suresh Kumar. The accused for the first time had produced the Bills of purchase when he led his evidence and same have been placed on record as Ex. DW2/A and Ex. DW2/C on the basis of which accused is claiming benefit of warranty U/s 19 (2) of PFA. Even though, the accused had not produced the Bill of Purchase at the time of sample proceedings and produced the same at later stage, still the accused cannot be deprived from warranty available U/s 19 (2) of PFA Act in view of law laid down by the Hon'ble Gauhati High Court in Niranjan Kumar Agarwala Vs. The State of Assam 2012 (1) FAC 457, provided that the accused has been able to prove the Bill of Purchase.
25. In order to avail the benefit of warranty U/s 19 (2) of PFA Act, the accused was not only required to prove that he had purchased the sample commodity from M/s Pyarelal Suresh Kumar vide Bill Ex. DW2/A as claimed by him, but he was also required to prove that he stored the sample commodity properly in his possession and sold the sample commodity in the same CC No. 05/03 DA Vs. Kishan Lal Nagpal Page 11 of 20 state/condition in which he purchased from the aforesaid company.
26. To prove this contention, the accused has examined himself as DW2 and deposed in his examinationinchief that he purchased the Dal Arhar vilde Bill No. 15260 dated 05.06.2002 Ex. DW2/A and payment was made on 02.08.2002 vide Ex. DW2/B. He further deposed that he also purchased Dal Arhar from Pyare Lal Suresh Kumar on 14.06.2002 vide Bill Ex. DW2/C and payment was made vide receipt Ex. PW2/D and the sample was lifted by the Food Inspector from the Dal which he purchased vide above said bills. He also deposed that Dal was purchased through one Ramesh Garg, Broker who has expired now.
27. In the crossexamination, DW2 stated that signature of a person who issued the Bill Ex. DW2/A is at point A and those can be of broker or of the person who issued the Bill. He further stated that he cannot tell the name who issued the Bill Ex. DW2/A and same is his reply in respect of Ex. DW2/B to Ex. DW2/D. He stated that Bill Ex. DW2/A to D were misplaced and as such he could not file earlier and same were found by him 1015 days prior. He further stated that he had not informed the FI in respect of source of purchase as he did not ask from him. He further stated that he did not send a letter that bills are not traceable, although, he purchased the sample commodity through bills. He denied the suggestion that he was not having any Bill and the Bill produced by him today i.e. DW2/A to D are forged and fabricated. He further denied the suggestion that the bills are forged and that is why he is not aware who issued the bills or signed the same.
CC No. 05/03 DA Vs. Kishan Lal Nagpal Page 12 of 2028. The accused has also examined one Sh. Suresh Kumar as DW3, who is the Proprietor of the firm M/s Pyarelal Suresh Kumar from whom the accused has claimed to have purchased the sample commodity. In his examinationinchief, DW3 deposed that he is the proprietor of M/s Pyarelal Suresh Kumar, Grain Merchant & Commission Agent, 4001, Naya Bazar, Delhi06 for last about 15 years and he is still running the same. He further deposed that he has seen the Bill Ex. DW2/A, receipt of the payment Ex. DW2/B and the Bill Ex. DW2/C and same have been issued by the salesman of their firm and have been signed by the broker at point X. He further deposed that he does not know the accused present in the court and even does not know Manish Trading Company and he cannot say whether his broker had a dealing with the same or not. He further deposed that his firm was dealing in the sale & purchase of food grains and pulses etc and the accused never came to his shop to disclose that a sample of Dal Arhar was lifted from his shop, which was found adulterated.
29. In his crossexamination, DW3 stated that through Bill Ex. DW2/A, one sealed bag of Dal Arhar weighing about 99.3 Kg and through Bill Ex. DW2/C, two sealed bags of Dal Arhar weighing about 100.3 Kg and 92.8 Kg, were sold to Manish Trading Company through broker Ramesh Garg whose name has been mentioned on these bills. He further stated that these bags were supplied in stitched condition and no trade Mark was mentioned on these bags. He further stated that he was dealing as an Commission Agent and used to sell the goods of other companies/manufacturers on commission basis CC No. 05/03 DA Vs. Kishan Lal Nagpal Page 13 of 20 and used to receive his commission for the sale thereof.
30. From the aforesaid evidence led by the accused, it stands proved that accused had purchased the sample commodity from M/s Pyarelal Suresh Kumar vide bills Ex. DW2/A and Ex. DW2/C and payment of these bills were paid by the accused vide receipt Ex. DW2/B and Ex. DW2/D, which fact has also been admitted by DW3 Sh. Suresh Kumar, who is the proprietor of the firm M/s Pyarelal Suresh Kumar when he stated in his examinationin chief that the bill Ex. DW2/A, payment thereof vide receipt Ex. DW2/B and the Bill Ex. DW2/C have been issued by the salesman of their firm. In the crossexamination also, DW3 admitted that through bills Ex. DW2/A and Ex. DW2/C, stitched bags of Dal Arhar were sold to Manish Trading Company of which accused is the proprietor. However, accused was also required to prove that he stored the sample commodity properly in his possession and sold the sample commodity in the same state in which he purchased from the aforesaid firm. From the evidence of DW2, it has come on record that vide bills Ex. DW2/A and Ex. DW2/C, stitched bags of Dal Arhar were sold by their firm to the accused, whereas in the present case admittedly the accused was found selling the Dal Arhar in loose condition in open gunny bag having no label declaration. Meaning thereby, the accused had neither stored nor sold the sample commodity in the same state in which he purchased from M/s Pyarelal Suresh Kumar vide bills Ex. DW2/A and Ex. DW2/C.
31. As such, though the accused has proved the bills Ex. DW2/A and Ex. DW2/C by which he purchased the sample commodity from CC No. 05/03 DA Vs. Kishan Lal Nagpal Page 14 of 20 M/s Pyarelal Suresh Kumar, but he failed to prove the second requirement as envisaged U/s 19 (2) of PFA Act that he was selling the Dal Arhar in the same condition or state in which he had purchased from M/s Pyarelal Suresh Kumar. Therefore, accused cannot be said to be entitled for benefit of warranty U/s 19 (2) of PFA Act as claimed by him and this claim of the accused is rejected.
32. Now, coming to the contention of the Ld. Counsel for accused that there is violation of Section 10 (7) of PFA Act. As per Ld. Counsel for accused, Food Inspector did not make efforts to join public witnesses in the sample proceedings despite their availability at the spot and in this way the Food Inspector has violated the provision of Section 10 (7) of PFA Act.
33. To prove this contention, the accused has examined his brother Sh. Jagdish Lal as DW1 who in his examinationinchief deposed that accused is his younger brother and 78 years before in the eventing time, he was sitting in his shop opposite to the shop of the accused and saw that one van on which 'SDM' was written stopped in front of the shop of the accused and 4 persons entered into the shop of the accused on which he went to shop of his brother and 57 persons also gathered there. He further deposed that one person introduced himself as FI Ranjeet Singh, another person introduced himself as SDM and another Food Inspector was Mr. Sharma. He further deposed that there were 57 gunny bags of pulses lying in the shop and they lifted the sample of Dal Arhar which was lying in gunny bag containing approximately 5 Kg. of Dal Arhar. He further deposed that the sample commodity was lifted with the help of Jhaba and was dirty and they brought the bottles and Dal was CC No. 05/03 DA Vs. Kishan Lal Nagpal Page 15 of 20 put into the bottles. He further deposed that 2025 persons gathered at the spot but none was asked by them to join the sample proceedings.
34. In the crossexamination of DW1, nothing material could be extracted. This witness stated in his crossexamination that size of the shop of the accused is about 10 x 12 feet and Moong, Arhar, Chana, Masoor etc. were lying in the gunny bags and all the pulses were about 510 Kg. He further stated that some dirt was sticking to the Jhaba and he cannot say whether the dust amount to colour or not. He further stated that there was no market association at that time. He further stated that some neighbouring shopkeepers also came at the spot and anyone i.e. accused, himself or neighbouring shopkeepers did not ask the Food Inspector to clean the Jhaba. Voluntarily, he stated that it was not his knowledge. He further stated that they did not make any call at 100 number that FI lifted the sample with the dirty Jhaba. He denied the suggestion that he is deposing falsely to save his brother and Jhaba was clean and dry by which the sample was lifted.
35. From the aforesaid crossexamination of DW1, it is evident that not a single suggestion has been put to him that 2025 persons were not gathered at the spot or that the persons gathered at the spot were asked to join the sample proceedings as claimed by the PWs. The testimony of DW1 that 2025 persons gathered at the spot but none was asked by them to join the sample proceedings has gone unrebutted and unchallenged. In view of un rebutted and unchallneged testimony of DW1, the accused has been able to prove that 2025 persons gathered at the spot but they were not asked by the CC No. 05/03 DA Vs. Kishan Lal Nagpal Page 16 of 20 PFA team to join the sample proceedings and it suggests that Food Inspector did not make sincere efforts to join the public witnesses in the sample proceedings. Therefore, it is apparent that there is violation of mandatory provision U/s 10 (7) of PFA Act as also argued by Ld. Counsel for accused.
36. Even otherwise, it is to be noted that in the present case though Public Analyst and Director, CFL found the sample lifted from the accused adulterated on account of detection of synthetic colour 'Tartrazine', but a perusal of reports of both the Analysts shows that there are variations in both the reports in respect of different parameters of sample commodity. As per report of Public Analyst (PA) Ex. PW1/G, the 'moisture' determined by heating the pulverized grains at 130133 deg. C was found to the tune of 8.19%, while Director, Central Food Laboratory found the same to the tune of 9.10%. Similarly, Public Analyst vide its report Ex. PW1/G found the 'Grains damaged' by fungus, moisture or heating internally as Nil and 'Weevilled grain' to the extent of 0.50%, whereas Director, CFL gave a different opinion and nowhere found 'Weevilled grain' in the sample and found the 'Damaged grains' to the extent of 0.40% by wt. and it shows that reports of both the Analysts are not only at variance, but are contradictory to each other.
37. The aforesaid variations in the report of both the 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) CC No. 05/03 DA Vs. Kishan Lal Nagpal Page 17 of 20 FAC 177, the Hon'ble Delhi High Court 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.". Similarly, it has been held by the Hon'ble Delhi High Court in M/s Raja Ram Seth & Sons & Anr. Vs. Delhi Administration 2012 (2) FAC 523 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." Reliance may also be placed upon State (Delhi Administration) Vs. Ram Singh & Ors. 2009 (1) FAC 371 and State Vs. Suresh Kumar & Anr. 2010 (2) FAC 204.
38. 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 appears that sample was not representative one and therefore, benefit of doubt is liable to be given to the accused.
39. Further, a perusal of report of Public Analyst Ex. PW1/G shows that Public Analyst has not disclosed the method applied for detecting the synthetic colour in the sample commodity. The Public Analyst was required to disclose the method applied for detecting the synthetic colour in the sample commodity and in the absence of disclosure of method, it is not CC No. 05/03 DA Vs. Kishan Lal Nagpal Page 18 of 20 ascertainable that how the Public Analyst reached to findings that sample was containing synthetic colour i.e. tartrazine.
40. While, the report of Director, Central Food Laboratory (CFL) shows that Paper Chromatography method has been applied by the Director, CFL 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 unpermitted 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.
41. In the present case, no other method apart from the Paper Chromatography test has been applied by the Director, CFL to detect the adulteration or presence of colouring matter in the sample commodity.
CC No. 05/03 DA Vs. Kishan Lal Nagpal Page 19 of 20Therefore, in view of law laid down in the aforesaid authorities cited supra, report of Director, CFL cannot be said to be a valid and sure report.
42. In view of aforesaid discussions, in my considered opinion, prosecution has not been able to prove its case against the accused beyond reasonable doubt, benefit of which must go in favour of the 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 25th September, 2013 ACMMII/ PHC/ New Delhi
CC No. 05/03
DA Vs. Kishan Lal Nagpal Page 20 of 20
CC No. 05/03
DA Vs. Kishan Lal Nagpal
25.09.2013
Present: Sh. Masood Ahmad, Ld. SPP for complainant.
Accused with counsel Sh. R.D. Goel.
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. Accused has furnished B/B & S/B in the sum of Rs. 15,000/ each. Same are accepted.
File be consigned to Record Room.
(Balwant Rai Bansal) ACMMII/PHC/ND/25.09.2013 CC No. 05/03 DA Vs. Kishan Lal Nagpal Page 21 of 20