Delhi District Court
Sh. Rajesh Kumar vs The State (Delhi Administration) on 14 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.02403R0039402014
CA No. 19/16
Sh. Rajesh Kumar
S/o Sh. Prem Prakash
M/s Agarwal Kiryana Store,
24 Main Road, Mauzpur,
Delhi. ....Appellant
Vs.
The State (Delhi Administration)
PFA Department, A-20 Lawrence Road,
Industrial Area, Delhi. .... Respondent
Date of receiving of Appeal : 08.02.2016
Date of arguments : 12.05.2016
Date of judgment : 14.05.2016
JUDGMENT
1 By this judgment I will dispose of appeal u/sec.374 Cr.PC. filed on behalf of convict Rajesh Kumar against the judgment dated 12.02.2014 and order on sentence dated 24.02.2014 passed by Sh. Gaurav Rao, Ld. ACMM-II, Patiala House Court, New Delhi.
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 Aggarwal Kiryana Store, 24 Main Road, Mauzpur, Delhi. On 24.01.2003 at about CA No. 19/16 Rajesh Kumar Vs. State page 1 of 6 2 6.00 p.m. Food Inspector Sh. Suniti Kumar Gupta visited the said place and purchased 750 grams of "Dal Arhar" (ready for sale) from accused. FI was accompanied with SDM/LHA Sh. P. C. Jain The said Arhar Dal 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 08.07.2003 with the court. Accused was summoned. He has exercised his right u/sec.13(2) PFA Act to get the sample analyzed by CFL. CFL reported "I am of the opinion that the sample bearing no. PCJ/LHA/3984 does not conform to standards of split pulse (Dal) Arhar as per PFA Rules, 1955 (Synthetic colour Tartrazine detected)."
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 12.02.2014 accused was convicted for offence u/sec.16(1A) of PFA Act and vide order on sentence dated 24.02.2014, accused was directed to undergo simple imprisonment for a period of 18 months and fine of Rs.10,000/- and in default of payment of fine SI of 60 days.
6 In this appeal, the accused has assailed the judgment on the
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following grounds:-
(i) Non-compliance of Sec.10(7) of PFA Act and Rule i.e. independent witnesses were not joined.
(ii) Paper chromatography test is not a reliable test.
(iii) There is variation in different reports so the sample was not properly homogenized.
(iv) 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.
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 witness. 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 29 to 30 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 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. This leg of arguments was also done before the trial CA No. 19/16 Rajesh Kumar Vs. State page 3 of 6 4 court and are being dealt by it in para 96. 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.
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 62 to 88 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 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 part of the judgment dealing with these arguments are from para 31 to 49 of the judgment.
13 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.
14 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 CA No. 19/16 Rajesh Kumar Vs. State page 4 of 6 5 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 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.
15 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" or any other surface, it is the duty of the prosecution to prove beyond reasonable doubt that the said implement/surface 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.
16 In the present case, the PW1/FI has not stated anything about the weighing apparatus in his examination-in-chief. However, in his cross- examination dated 24.02.2010 he deposed "Dal was weighed on a pan CA No. 19/16 Rajesh Kumar Vs. State page 5 of 6 6 scale". So, accordingly, the Dal was put on the Pan Scale before pouring it into the glass bottles and sealing it.
No where it is deposed that this Pan Scale/weighing apparatus was clean and free from any colour.
17 So, in these circumstances, the prosecution failed to prove the strict compliance u/sec.14 of PFA Rules.
18 So, the judgment and order on sentence of the trial court is reversed.
19 Accused Rajesh Kumar is acquitted of the charges u/sec.16(1A) read with sec.7 of PFA Act.
20 Bail Bond u/sec.437A Cr.P.C. furnished. Accepted for six months.
21 TCR be sent back with copy of the order.
22 File of appeal be consigned to Record Room.
ANNOUNCED In the open Court (RAKESH PANDIT)
today i.e. 14.05.2016 ASJ-01/New Delhi District
Patiala House Courts/New Delhi
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CA No. 19/16
Rajesh Kumar Vs. Food Inspector
14.05.2016
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 Rajesh 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.
File of appeal be consigned to Record Room.
(Rakesh Pandit)
ASJ-01/PHC/New Delhi District
14.05.2016
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