Delhi District Court
Da vs . Shakti Vijay Jain Etc. Page 1 Of 16 on 20 September, 2013
IN THE COURT OF SHRI BALWANT RAI BANSAL
ADDITIONAL CHIEF METROPOLITAN MAGISTRATEII,
PATIALA HOUSE COURTS, NEW DELHI
C.C. No. 40/99
Food Inspector
Department of PFA
Govt of Delhi.
...........................Complainant
Versus
1. Sh. Shakti Vijay Jain
S/o Late Sh. Sukhdev Jain,
2691, Sadar Thana Road, Delhi6,
R/o 2693, Sadar Thana Road, Delhi6.
(DISCHARGED V/O DATED 06.06.2000)
........ VendorcumProprietor
2. M/s Sukhdev & Co.,
2691, Sadar Thana Road, Delhi6
(DISCHARGED V/O DATED 06.06.2000)
......................Partnership firm
3. Sh. Ajay Tandon, Sr. Manager (Production),
M/s Siel Foods & Fertilizer Industries,
15, Shivaji Marg, New Delhi15
(DISCHARGED V/O DATED 06.06.2000)
.....................Nominee
CC No. 40/99
DA Vs. Shakti Vijay Jain Etc. Page 1 of 16
4. M/s Siel Foods & Fertilizer Industries,
15, Shivaji Marg, New Delhi15
(DISCHARGED V/O DATED 06.06.2000)
..............Supplier Unit
5. Sh. S.S. Brar, Quality Control Manager,
M/s Suraj Solvent & Vanaspati Industries Ltd.,
Village Khippanwali, Tehsil Fazilka,
Distt. Ferozpur, Punjab.
......................Nominee
6. M/s Suraj Solvent & Vanaspati Industries Ltd..,
Village Khappanwali, Tehsil Fazilka,
Distt. Ferozpur, Punjab.
..............Manufacturer
COMPLAINT U/S 16 OF THE PREVENTION OF FOOD
ADULTERATION ACT, 1954
Serial number of the case : 40/99
Date of the commission of the offence : 01/09/98
Date of filing of the complaint : 19.04.1999
Name of the Complainant, if any : Shri Arun Kumar, FI.
Offence complained of or proved : Violation of Section 2 (ia) (a)(b)
(c)(f) (h) & (l) of PFA Act 1954,
punishable U/s 16 (1) (1A) r/w S.
7 of PFA Act 1954.
CC No. 40/99
DA Vs. Shakti Vijay Jain Etc. Page 2 of 16
Plea of the accused : Pleaded not guilty
Final order : Acquitted.
Arguments heard on : 21.08.2013
Judgment announced on : 20.09.2013
J U D G M E N T
1. The present complaint has been filed on 19.04.1999 by Food Inspector Sh. Arun Kumar against the above said accused persons. It is stated in the complaint that on 01.09.1998 at about 4:15 PM, FI Sh. Arun Kumar purchased a sample of Rath Vanaspati, a food article for analysis from accused Shakti Vijay Jain, S/o Late Sh. Sukhdev Jain, Vendorcum Partner of M/s Sukhdev & Co., 2691, Sadar Thana Road, N. Delhi6, where accused Shakti Vijay Jain was found conducting the business of the said food article. It is further stated in the complaint that FI Arun Kumar purchased 3 originally sealed polypack of 1 litre (897) gms each of Rath Vanaspati from accused Shakti Vijay Jain, bearing identical label declaration. It is further stated in the complaint that three counterparts were prepared by putting one original sealed pack of Rath Vanaspati into one plastic jar and each plastic jar containing originally sealed pouch of 1 litre of Rath Vanaspati was separately packed, fastened, marked and sealed according to PFA Act & Rules. It is further stated in the complaint that all the sample proceedings were conducted under the supervision and direction CC No. 40/99 DA Vs. Shakti Vijay Jain Etc. Page 3 of 16 of Sh. Chanderkant Bharti, SDM/LHA. It is further stated in the complaint that after preparing three counterparts, the signatures of vendor Shakti Vijay Jain (since discharged) were obtained on the LHA slip and the wrapper of the sample jars / counterparts. Notice in Form VI was given to vendor and price of sample was also paid to him. Panchnama was also prepared at the spot. All these documents prepared by FI Arun Kumar were signed by accused Sh. Shakti Vijay Jain, the vendor and the other witness namely Sh. Ranjit Singh, FA. It is stated that before taking the sample, efforts were made to get the public witnesses to join the sample proceedings.
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 does not conform to the standards laid down under item no. A.19 of Appendix 'B' of PFA Rules, 1955, because sample shows presence of Argemone Oil".
3. It is further stated in the complaint that during investigations accused Shakti Vijay Jain was found to be VendorcumPartner of M/s Sukhdev & Co., 2691, Sadar Thana Road, Delhi6, which was a partnership firm consisting of two partners namely accused Shakti Vijay Jain and Sh. CC No. 40/99 DA Vs. Shakti Vijay Jain Etc. Page 4 of 16 Rajeev Jain and accused Shakti Vijay Jain was the person incharge and responsible for the day to day conduct of the business of the said firm. During investigation, it was further revealed that the firm M/s Sukhdev & Co., had purchased the sample commodity from supplier firm M/s Siel Foods & Fertilizer Industries, Shivaji Marg, New Delhi15 and accused Ajay Tandon was found to be the Nominee of the said supplier firm. It was further revealed that the supplier firm i.e. M/s Siel Foods & Fertilizer Industries had purchased the sample commodity from M/s Suraj Solvent & Vanaspati Industries Ltd., of which accused S.S. Brar was Nominee. After conducting 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 for violation of provisions of Section 2 (ia) (a) (b)(c)(f)(h) & (I) of the PFA Act, 1954, punishable U/s 16 (1) (1A) r/w S. 7 of the Act.
4. The accused persons were summoned vide order dated 19.04.1999. On appearing, AR of accused no. 6 moved an application U/s 13 (2) of the 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, Calcutta for analysis. The Director, CFL on analysing the second counterpart of the CC No. 40/99 DA Vs. Shakti Vijay Jain Etc. Page 5 of 16 sample in question opined vide his Certificate dated 09.06.1999 that "the sample of Vanaspati Rath is adulterated".
5. Thereafter, vide order dated 06.06.2000 accused no. 1 to 4 were given benefit of warranty u/s 19 (2) of PFA Act and were discharged. Now, accused no. 5 & 6 are facing the trial.
6. Thereafter, one witnesses FI Arun Kumar was examined as PW1 in pre charge evidence and pre charge evidence was closed vide order dated 01.04.2009.
7. Charges for the violation of provisions of Section 2 (ia) (b)(c)
(f) (h) & (I) of PFA Act, 1954, punishable U/s 16 (1) (1A) r/w S. 7 of the Act were framed upon accused no. 5 & 6 vide order dated 27.07.2009 to which they pleaded not guilty and claimed trial.
8. In post charge evidence, the prosecution examined three witness in all including Arun Kumar, Food Inspector as PW1, Sh. Chandraker Bharti, the then SDM / LHA as PW2 and Sh. Ranjeet Singh, Field Assistant as PW3 and PE was closed vide order dated 28.04.2012.
9. Statements of both the accused persons U/s 313 Cr.P.C. were recorded on 06.07.2012 wherein both of them claimed themselves to be innocent and opted not to lead DE hence, DE was closed on the same date i.e. 06.07.2012.
CC No. 40/99 DA Vs. Shakti Vijay Jain Etc. Page 6 of 16
10. I have heard the Ld. Counsel for the parties and perused the record carefully.
11. The Ld. Counsel for accused no. 5 & 6 argued that neither there was any provision nor any standard of Vanaspati prescribed at the time of lifting the sample that the vanaspati should be free from Argemone Oil. He further argued that Notification banning the presence of Argemone Oil in vanaspati came in force first time on 11.12.2001 while the sample in the present case was lifted on 01.09.1998. He has further argued that no percentage of Argemone Oil has been given by both the experts and in the absence of quantity, weight and proportion, it was possible that presence of argemone oil in the sample may be just negligible so as to cause no prejudice to the purchaser. He has further argued that as per 'Modi's Medical Jurisprudence and Toxicology' about 1% of Argemone Oil as an adulterant is necessary to produce epidemic dropsy and presence of argemone oil without any percentage which may even less than 1% is not per se injurious to health and thus it can not be said that the sample was adulterated. He has further argued that there is no evidence that Argemone oil is injurious to health or likely to cause death and there is no such finding in the PA's Report that the Argemone Oil was injurious to health. He has further argued that in PA & CFL Reports there are variations which are CC No. 40/99 DA Vs. Shakti Vijay Jain Etc. Page 7 of 16 more than 0.3%, which shows that a representative sample was not taken and hence, the accused persons are liable to be acquitted.
12. In support of its case, Ld. counsel for accused persons has placed reliance on case law titled as Khushi Ram Vs. The State & Anr. Crl. Rev. No. 252 of 1978 and State Vs. Rama Rattan Malhotra 2012 (2) FAC 398.
13. On the contrary Ld. SPP for complainant has argued that presence of argemone oil means that the oil was not edible and therefore it was harmful as the sample commodity contained argemone oil irrespective of the percentage not declared by the PA & CFL and it does not make any difference. He has further argued that CFL Report supersedes the report of Public Analyst and hence, the variations in reports of experts are immaterial and accused persons can not be given the benefit thereof. He has further argued that the prosecution has proved its case beyond reasonable doubt and hence, the accused are liable to be convicted.
14. All the witnesses examined by the prosecution have deposed more or less as per the averments made in the complaint and substantiated the averments.
15. PW1 Sh. Arun Kumar who is the FI in the present case has deposed in his examinationinchief that on 01.09.1998, he under the CC No. 40/99 DA Vs. Shakti Vijay Jain Etc. Page 8 of 16 supervision and directions of SDM/LHA Shri Chandrakar Bharti had visited the premises of M/s Sukhdev & Co., 2691, Sadar Thana Road, N. Delhi6, where accused Shakti Vijay Jain (since discharged) was found present and conducting the business of the said shop having stored various food articles including Rath Vanaspati for sale for human consumption. He has further deposed that he purchased 3 originally sealed pouches of 1 litre each of Rath Vanaspti, having identical label declaration, on payment of Rs. 159.50/ vide vendor's receipt Ex. PW1/A. He has further deposed that he divided the sample into three equal parts by putting one original sealed pouch of 1 litre pack of Rath Vanaspati in one plastic bar and then each plastic jar containing originally sealed pouch of 1 litre of Rath Vanaspati was separately packed, fastened, marked and sealed according to PFA Act and Rules. He further deposed that notice was prepared at the spot and the same was given to accused / vendor Shakti Vijay Jain which is Ex. PW 1/B and vendor also made an endorsement thereon at portion A to A that sealed packets of Vanaspati were supplied to him by M/s Siel Food and Fertilizers Industries, 15, Shivaji Marg, New Delhi vide Challan No. 3490, dated 01.09.1998 and also produced a copy of Bill Mark X. He further deposed that a Notice u/s 14 A Ex. PW 1/D was prepared at the spot and was sent to M/s Siel Food and Fertilizers Industries, 15, Shivaji Marg, New Delhi. CC No. 40/99 DA Vs. Shakti Vijay Jain Etc. Page 9 of 16 Panchnama was also prepared at the spot which is Ex. PW1/C. He has further deposed that all the documents Ex. PW 1/A to Ex. PW 1/D were read over and explained to the accused/vendor in Hindi and after understanding the same the vendor as well witness and he himself signed the same. He has further deposed that two counterparts of the sample in a sealed packet were deposited in intact condition with LHA on 02.09.1998 vide receipt Ex. PW 1/F and one counterpart of the sample in intact condition was deposited with with PA vide PA receipt Ex. PW 1/E. He further deposed that PA's report Ex. PW 1/G was received, according to which the sample was found adulterated because sample shows presence of argemone oil.
16. PW1 has further deposed that during investigation, vendor Shakti Vijay Jain disclosed vide his reply Ex. PW 1/H that M/s Sukhdev & Company is a partnership firm and he is the active partner of the firm. He further deposed that a letter Ex. PW 1/I was received by him from M/s Siel Food & Fertilizers Ltd. wherein they informed that sample commodity was manufactured by M/s Suraj Solvent & Vanaspati Industries Ltd., Fazal Ka, Distt. Firozpur, (Punjab) and also sent the photocopy of the Bill and sent the photocopy of Nomination in favour of accused Sh. Ajay Tandon, Sr. Manager, which is Mark Z. He has proved the letter received from M/s CC No. 40/99 DA Vs. Shakti Vijay Jain Etc. Page 10 of 16 Suraj Solvent Vanaspati Industries Ltd., which is Ex. PW 1/J. He has proved the Sanction as Ex. PW 1/K and complainant as Ex. PW 1/L.
17. Rest of both the witnesses have deposed more or on the same pattern as deposed by PW 1 and substantiated the averments made in the complaint.
18. In the statements U/s 313 Cr.P.C, the accused no. 5 & 6 have feigned ignorance regarding sample proceedings conducted on 01.09.1998 and have taken a defence that no reliance can be placed on the report of Director CFL as a representative sample was not taken. They have further taken a defence that the sample was taken in September, 1998 and at that time, there was no prohibition of argemone oil in vanaspati and the said standard came in force on 11.12.2001. They have further taken a plea that the sample commodity was an ISI approved product and the company maintained a Lab as per ISI standards and the sample was tested as per the ISI guidelines, before it was sent to the market for selling purpose to the customers.
19. It is not in dispute that on 01.09.1998, FI Arun Kumar under the supervision of SDM / LHA Shri Chanderkant Bharti had visited the premises of accused no. 1 where he was found conducting the business of various food articles including Rath Vanaspati, sample of which was lifted CC No. 40/99 DA Vs. Shakti Vijay Jain Etc. Page 11 of 16 by the FI. After analysing the sample commodity, the Public Analyst found the sample not conforming to the standards laid down under item no. A.19 of Appendix 'B' of PFA Rules, 1955 because sample showed presence of argemone oil. On the basis of PA's Report, the prosecutions was launched. It is also not in dispute that AR of accused no. 6 exercised the right under section 13(2) of PFA Act 1954 and the second counterpart of the sample was sent to CFL Calcutta and the Director CFL vide report dated 09.06.1999 also found the sample of vanaspati Rath to be adulterated. It is also not in dispute that on the admission of accused no. 3 & 4, accused no. 1 & 2 were given the benefit of Warranty u/s 19(2) and were discharged and further on the admission of accused no. 5 & 6, accused no. 3 & 4 were also given the benefit of Warranty u/s 19(2) of PFA Act and were discharged.
20. Now coming to the arguments advanced by Ld. counsel for accused no. 5 & 6, it is evident from record that on 01.09.1998 the sample was lifted by FI and the PA & Director CFL found the sample to be adulterated because of presence of Argemone Oil. However, it is to be noted that the Notification of banning the presence of Argemone Oil in vanaspati came in force on 11.12.2001 and at the time of lifting the sample there was no prohibition of Argemone Oil in vanaspati. Therefore, the CC No. 40/99 DA Vs. Shakti Vijay Jain Etc. Page 12 of 16 percentage of Argemone Oil to determine whether the sample commodity was injurious to health was essential. However, none of the analysts has given the percentage of Argemone Oil nor it has given any indication that it was injurious to health or may cause dropsy. As per Modi's Medical Jurisprudence and Toxicology, at least 1% of Argemone Oil as an adulterant is necessary to produce clinical epidemic dropsy. In the absence of any finding on its percentage, the possibility of argemone oil less than 1% in the sample commodity can not be ruled out. Therefore, it was necessary to give percentage of Argemone by PA & Director CFL to adjudge whether the argemone oil was to such an extent that it was injurious to health.
21. In Khushi Ram Vs. The State & Anr. Crl. Rev. No. 252 of 1978, a sample of Bari Elaichi was lifted from the shop of the accused / petitioner. The second counterpart of the sample on being got analyzed from the CFL, The Director CFL found the mineral oil 'positive'. But the Director CFL nowhere mentioned the quantity, weight or proportion by way of percentage of the mineral oil in the sample of Bari Elaichi so that it could be presumed to be injurious to health, nor any evidence whatsoever was brought on record to show that its presence in the sample could affect injuriously the nature, substance or quality of the sample and, therefore, on CC No. 40/99 DA Vs. Shakti Vijay Jain Etc. Page 13 of 16 these facts and circumstances, the revision petition was allowed and the petitioner / accused was acquitted.
22. Perusal of both the reports of experts, it is revealed that both the reports are at variance to each other. The PA vide its report Ex. PW 1/G found B.R. Reading 51 Deg. C whereas, the Director CFL found the same to be 50.2 Deg. C. Further, B.T. was detected by the PA 7.0 red unit whereas the Director CFL detected the same 2.9 red unit. Likewise, as per PA's opinion, melting point was 38.5 Deg. C whereas as per Director CFL's opinion the same was 39.6 Deg. C. Further, the PA detected the moisture 0.042% while the Director CFL detected the same to be 0.02%. Moreover, the PA has detected F.F.A to the tune of 0.09% whereas, the Director CFL has found it absent in the given sample counterpart. In this way, there are variations to some extent which are more than 0.3%, which is stated to be the permissible limit of variations. These variations indicate that either a representative sample was not taken or a bad sampling procedure was adopted by the FI.
23. 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 has held that, "since in the present case, variation in public CC No. 40/99 DA Vs. Shakti Vijay Jain Etc. Page 14 of 16 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 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 Calcutta Municipal Corporation Vs. Pawan Kumar Saraf 1999(1) FAC 1 and Municipal Corporation of Delhi Vs. Bishan Sarup 1972 FAC 273 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". Similarly in State Vs. Mahender Kumar & Ors. (Supra) has been observed that, " While both reports have concurred in the conclusion that the sample was adulterated, the variation in the material parameters in the sample sent to each of them is not insignificant. In the sample sent to the Public Analyst the ash content is 4.04% whereas in the sample sent to the CFTRI it is 6%. The ash insoluble in dilute HCL is 2.55% in the sample sent to the Public Analyst whereas it is 1.95% in the sample sent to the CFTRI. The lead content is Nil in the first and 5.4 ppm in the second. CC No. 40/99 DA Vs. Shakti Vijay Jain Etc. Page 15 of 16 These variations are more than y.3% which is stated to be the permissible limit. It cannot therefore be said that identical representatives samples were sent to both the Public Analyst as well as the CFTRI".
24. In view of aforesaid discussion and observation, I am of the considered view that the prosecution has not been able to prove its case beyond reasonable doubt and the case tilts in favour of accused persons. Accordingly, the accused no. 5 & 6 are acquitted of the charges leveled against them. File be consigned to Record Room.
Announced in the open Court (Balwant Rai Bansal)
on 20th September, 2013 ACMMII/ PHC/ New Delhi
CC No. 40/99
DA Vs. Shakti Vijay Jain Etc. Page 16 of 16
CC No. 40/99
DA Vs. Shakti Vijay Jain Etc.
20.09.2013
Present: Sh. Masood Ahmad, Ld. SPP for complainant.
Accused no. 1 to 4 have been discharged.
Accused no. 5 & 6 are present with Counsel Sh. M.K. Gupta. Vide my separate Judgment of even date dictated and announced in the open court, all accused stand acquitted of the charges leveled against them. Previous Bail Bond / Surety Bond stands cancelled. Their sureties stand discharged. Endorsement on the documents of the previous sureties, if any, be cancelled.
Accused are directed to furnish fresh bail bonds in compliance of Section 437A Cr.P.C. They have furnished B/Bs & S/Bs in the sum of Rs. 15,000/ each. The same are accepted.
File be consigned to Record Room.
(Balwant Rai Bansal) ACMMII/PHC/ND/20.09.2013 CC No. 40/99 DA Vs. Shakti Vijay Jain Etc. Page 17 of 16