Delhi District Court
In Re vs A.1) Manish Mandal on 18 April, 2017
IN THE COURT OF SH. ASHU GARG,
Addl. Chief Metropolitan Magistrate - II (New Delhi),
Patiala House Courts, New Delhi
CC No. 145/11
Unique Case ID No. 02403R0049822011 (new no.44938/2016)
Date of Institution: 25.06.2011
Date of reserving judgement: 18.04.2017
Date of pronouncement: 18.04.2017
In re:
Delhi Administration / Food Inspector
Department of PFA,
Govt. of NCT of Delhi
A-20, Lawrence Road Industrial Area,
Delhi-110035 ... Complainant
versus
A.1) Manish Mandal
S/o. Sh. Shrikant Mandal
R/o. Khokha No. 2, Pili Kothi,
Naya Bazar, Delhi-110006.
A.2) Shyam Lal
S/o Sh. Jai Ram,
R/o B-505, Gali No. 6,
Sonia Vihar, Delhi-110094. ... Accused persons
JUDGMENT:
1. The present is a complaint filed under section 16 of the Prevention of Food Adulteration Act, 1954 (PFA Act), alleging that the accused CC No. 145/11 Page 1 of 14 persons have violated the provisions of the PFA Act and Rules. The accused no. 1 is stated to be the vendor-cum-servant of M/s. Shyam Traders which was proprietorship concern of accused no. 2, from where the food article, that is, Kali Mirch Whole was lifted for sampling.
2. As per the complaint, on 05.05.2011, the food officials consisting of Food Inspector (FI) Bal Mukund and FI B.P. Saroha under the supervision of Local Health Authority (LHA)/SDM Sh. R. K. Ahuja reached along with their staff at the premises of M/s. Shyam Traders at Khokha No. 2, Pili Kothi, Naya Bazar, Delhi-110006, where the accused no.1 was found conducting the business of various food articles, which were lying stored for sale for human consumption. The FI disclosed his identity and expressed his intention to purchase a sample of Kali Mirch Whole the vendor lying in an open polythene bag bearing no label declaration, to which he agreed. The sample was then lifted as per procedure prescribed under the PFA Act and Rules. Each sample was separately packed, fastened, marked and sealed and necessary documents were prepared at the spot, including the Notice as per Form-VI, panchnama, etc. The price of sample was paid to the vendor. Thereafter, one counterpart of the sample was sent to the Public Analyst (PA) in intact condition and the other two counterparts were deposited with SDM/LHA. Vide report dated 13.05.2011, the PA found the sample to be adulterated because it contained fungus infected berries, and also not conforming to standards as light berries exceeded the prescribed maximum limit. Upon receipt of report, the SDM/LHA ordered investigation which was carried out by FI.
CC No. 145/11 Page 2 of 14It was revealed that accused no. 2 was the proprietor of M/s. Shyam Traders where accused no. 1 was the vendor-cum-servant. After completion of investigation, sanction under section 20 of the PFA Act was obtained from the Director PFA. The complaint was then filed in the court on 25.06.2011 alleging violation of section 2(ia)(a), (e) and (m) of PFA Act, as punishable section 7/16(1A) of PFA Act.
3. As the complaint was filed in writing by a public servant, recording of pre-summoning evidence was dispensed with and the accused persons were summoned vide order dated 25.06.2011. The accused appeared and filed an application under section 13(2) of PFA Act thereby exercising the right to get the second counterpart of the sample to be analysed from Central Food Laboratory (CFL). The application was allowed and a counterpart was sent for analysis to CFL. The CFL examined the sample and its Director gave Certificate dated 03.08.2011, opining the sample to be not conforming to the PFA Rules due to insect infestation and presence of insect damaged matter exceeding the prescribed maximum limit.
4. Upon receipt of the report of the CFL, the matter was listed for framing of notice under section 251 CrPC. The said notice was framed against both the accused persons on 21.09.2012 for commission of the offence punishable under section 7/16(1)(a) PFA Act, being violation of section 2(ia)(a), (f) and (m) of PFA Act, to which they pleaded not guilty and claimed trial.
CC No. 145/11 Page 3 of 145. At this stage, there appears an irregularity in the said proceedings. The CFL report showed insect infestation in the sample which was a violation of Section 2(ia)(f) of PFA Act, as also observed in notice framed on 21.09.2012. However, this violation of Section 2(ia)(f) is not punishable under section 16(1)(a) as mentioned in the notice. It is rather punishable under section 16(1A) of PFA Act, which is warrant triable in nature. As such, if the court is of the view that violation of Section 2(ia)(f) was there, the matter should have been listed for recording of pre charge evidence after which the charges should have been framed. There could not have been a notice framed under section 251 CrPC for violation of Section 2(ia)(f) which is not punishable under section 16(1)(a) of PFA Act. Be that as it may, since this point was never raised by any side, the court is proceeding accordingly.
6. At the trial, the prosecution examined three witnesses in support of its case. PW-1 FI Bal Mukund and PW-3 Sh. R. K. Ahuja (SDM/LHA) were part of the team that had visited the spot for sample proceedings, along with FI B. P. Saroha (who was dropped by the prosecution on 19.02.2016). Both these witnesses deposed about the proceedings conducted by them on 05.05.2011 and narrated the steps undertaken by them during the sample proceedings, including disclosing their identity, expressing intention to purchase sample for analysis, lifting the sample of 1500 gms of Kali Mirch Whole lying in an open polythene bag bearing no label declaration, mixing/homogenizing it, dividing it in three parts and putting in clean and dry bottles, fastening, sealing, marking the sample CC No. 145/11 Page 4 of 14 bottles, and obtaining signatures of vendor and witnesses. They also proved the necessary documents including the vendor's receipt Ex. PW- 1/A, Notice Ex. PW-1/B, Panchnama Ex. PW-1/C, Raid report Ex. PW- 1/D, statement of accused vendor Ex. PW-1/E, PA Receipt Ex. PW-1/F and LHA receipt Ex. PW-1/G. PA report Ex. PW-1/H was received and investigation was started. After completion of investigation, sanction Ex. PW-1/M was taken from the Director PFA and the complaint Ex. PW-1/N was filed in the court by PW-2 FI A. K. Singh. A copy of PA report with intimation letter was sent to the accused persons. These witnesses were duly cross-examined by Ld. Defence Counsel wherein they denied that representative sample was not taken or that development of insect was a natural phenomena.
7. Statements of the accused persons under section 313 CrPC were recorded on 18.04.2017 wherein they denied the allegations and pleaded innocence. Accused no. 1 admitted the proceedings dated 05.05.2011 and accused no.2 expressed ignorance about the proceedings as he was not present there. However, both of them questioned the PA and CFL reports and asserted that there was no adulteration in the sample. They chose not to lead evidence in defence.
8. It is in these circumstances, Ld. SPP for the complainant has argued that the complainant has been able to establish its case against the accused persons beyond reasonable doubt, on the ground that the accused persons have not been able to rebut the findings of the CFL report dated CC No. 145/11 Page 5 of 14 03.08.2011 which as per section 13(3) of PFA Act is final and conclusive. It is submitted that all the witnesses have supported its case and no major contradiction can be seen in their testimony.
9. On the other hand, Ld. Defence Counsel has submitted that the sample proceedings were not conducted properly and that there are various missing links in the testimony of witnesses. Ld. Counsel has strongly contended that there is variation in the reports as given by PA and CFL, which leads to conclusion that the two samples were not representative and therefore, conviction cannot be based solely on the basis of the CFL report. He has relied upon the various judgements in his support.
10. I have heard the arguments advanced by Ld. SPP for the complainant and Ld. Defence Counsel for the accused persons and have carefully perused the material available on record.
11. It is to be understood that the charge / notice framed against the accused persons is for violation of section 2(ia)(a), (f) and (m) of the PFA Act on the basis of CFL report. This is important to note because the ingredients of these offences are different and distinct. Under section 2(ia)
(a) of PFA Act, the prosecution has to establish that the purchaser had demanded a food article of a specific nature, substance or quality and the article sold was, to his prejudice, either not of the nature, substance or quality demanded, or was not of the nature, substance or quality which it purported or represented to be. Section 2(ia)(f) applies when the article CC No. 145/11 Page 6 of 14 consists wholly or in part any filthy, putrid, rotten, decomposed or diseased animal or vegetable substance or is insect infested or is otherwise unfit for human consumption. On the other hand, section 2(ia)(m) of PFA Act deals with situation where the quality or purity of an article falls below the prescribed standard or its constituents are present in quantities not within the prescribed limits of variability which does not render it injurious to health.
12. In the case at hand, it is an admitted position, as is clear from both the reports of PA and CFL that the food article fell under Item A.05.17 of Appendix-B of the PFA Rules. Specific standards have been prescribed for this food product under this provision under the head "Spices and Condiments".
13. As per section 13(3) of the PFA Act, the certificate issued by the Director of CFL shall supersede the report of the PA. As per proviso to section 13(5) of the Act, such certificate shall be final and conclusive evidence for the facts stated therein. Thus, as far as the findings of the CFL are concerned, the same are final and conclusive and no evidence can be given to disprove the same.
14. In Calcutta Municipal Corporation v. Pawan Kumar Saraf [AIR 1999 SC 738], it has been authoritatively laid down that the legal impact of a certificate of the Director of CFL is three fold: (a) it annuls or replaces the report of the PA, (b) it gains finality regarding the quality and standard CC No. 145/11 Page 7 of 14 of the food article involved in the case and (c) it becomes irrefutable so far as the facts stated therein are concerned.
15. In Subhash Chander v. State, Delhi Administration [1983(4) DRJ 100], it was observed by Hon'ble High Court of Delhi that "It has repeatedly been held by the supreme court that the certificate of the Director supersedes the report of the public analyst and is to be treated as conclusive evidence of its contents. The Director is a greater expert and therefore the statute says that his certificate shall be accepted by the court as conclusive evidence. For all purposes the report of the public analyst is replaced by the certificate of the Director.... Superseded is a strong word. It means obliterate, set aside, annul, replace, make void, inefficacious or useless, repeal. The Director's cetificate supersedes the report given by the public analyst. Once superseded it does not survive for any purpose. It will be anamolous to hold that for some purpose it survives and for other purposes it is superseded."
16. Since the report of CFL is final and conclusive and the same supersedes the report of PA, only this report has to be considered and the report of PA has to be ignored. It would be seen that the CFL report has negated the results of PA on both the counts on which the prosecution was launched. The PA found the sample to be fungus infected and presence of light berries to be 8.66% (which was in excess of the prescribed maximum limit of 5.0%). However, when the sample was examined by the CFL, no such fungus was detected and even the light berries were found to be CC No. 145/11 Page 8 of 14 4.86% (which was within the prescribed maximum limit). The fungal growth noticed by the PA cannot be said to be insects.
17. It is clear that as per the report of CFL, there was no fungus infestation in the sample, though the sample still failed on two counts i.e. (1) presence of insect damaged matter of 1.42% (which was exceeding the prescribed maximum limit of 1.0%), and (2) insect infestation. As such, the matter has to be determined only on the basis of report of CFL.
18. In this regard, the defence strongly relies upon the judgement titled as Kanshi Nath v. State [2005(2) FAC 219], informing that the said ruling has been constantly followed by the Hon'ble High Court of Delhi in State v. Ramesh Chand [2010 (2) JCC 1250], Food Inspector v. Parvinder Malik [2014(2) FAC 306], State v. Vinod Kumar Gupta [2010(2) JCC 957], State v. Virender Kohli [2014(2) FAC 223], State v. Kamal Aggarwal [2014(2) FAC 183], State v. Vidya Gupta [2014(1) FAC 291], State v. Dinesh Goswami [2014(1) FAC 302], State v. Mahabir [2014(1) FAC 286], State v. Santosh Sharma [2014(1) FAC 296], Raja Ram Seth & Sons v. Delhi Administration [2012(2) FAC 523], State v. Sunil Dutt [2011(4) JCC 2377] and State v. Rama Rattan Malhotra [2012(2) FAC 398]. It is submitted that comparison of the two reports would show that there are substantive variations which would show that the sample was not representative.
CC No. 145/11 Page 9 of 1419. The Hon'ble High Court of Delhi in Kashi Nath's case (supra), was dealing with a situation where there were certain variations in the reports of PA and CFL while analysing a sample of 'dhania powder'. Hon'ble Court considered the ratio in MCD v. Bishan Sarup [ILR 1970 (1) Delhi 518] and held that it would still be open for the accused to establish that the sample tested was not a representative one, and if the variation in the two reports is substantial enough, then the PA report can certainly be looked into to establish this variation.
20. Though the CFL report is final and conclusive as to the results therein, yet it can still be looked into to ascertain if the samples were representative or not. If the accused is able to show that the samples were not representative or otherwise that the food article might have undergone a change by the time it reached CFL which was beyond his control, he would get benefit on that count.
21. In the case at hand, the differences between the two reports would show substantive variations in the two reports. There is vast difference in the presence of light berries, fungus infected berries, insect damaged matter and presence of insect infestation. The entire incriminating matter on the basis of which prosecution was launched, stood negated by CFL as no fungus was found in the sample examined by it as compared to the PA report who found fungus infected berries to be 3.24%. As against this, the CFL did not find any fungal growth and no fungus infested berries, if at all they were there, were quantified. It has to be thus assumed that the fungus CC No. 145/11 Page 10 of 14 infestation or fungus infected berries were Nil in the sample examined by the CFL. If the food article was properly homogenized and made truly representative, the fungus would have grown and would not have vanished.
22. Similarly, there is nothing the CFL certificate to show as to on what basis it claimed the sample to be "insect infested". This is primarily because the CFL certificate is silent as to how many insects, dead or alive, were noticed during analysis. The law is well settled that insect infestation is a very relative concept and if only one or two insects are present in a large sample, that may not be termed as "insect infestation". But in the present case, there is nothing in the CFL report to ascertain how many insects, of what nature and of what size were found in the sample so as to call it insect infested. The analytical values in the CFL report does not show presence of any insect, though it shows presence of insect damaged matter upto 1.42%. While presence of insects may amount to insect infestation, yet presence of only insect damaged matter would not amount to insect infestation. It is to be noted that even as per the standards prescribed under Item No. A.05.17, insect damaged matter is permitted upto 1.0%. Therefore, if the insect damaged matter present in a sample is exceeding the prescribed maximum limit of 1.0%, the same may amount to violation of prescribed limits but would not be sufficient to term as sample as insect infested, unless there is clear and sufficient material showing the presence of insects and infestation due to such insects. When there is no material to show presence of insects and their quantity or CC No. 145/11 Page 11 of 14 extent, it cannot be said that the product was insect infested so as to make out violation of Section 2(ia)(f) of PFA Act.
23. Further, it is important to understand that Kali Mirch Whole as a food article is prone to natural variations with the passage of time, particularly if it is kept for a long period at room temperature without any preservatives. In such case, if quality or purity of such an article falls below the prescribed standards solely due to natural causes and beyond the control of human agency, then such article would not be termed as adulterated. If the two reports are so considered, it can be said that either the food article had not been properly homogenised and made truly representative, or otherwise the sample had undergone a natural change beyond the control of the accused persons. The PA in its report found the insect damaged matter to be Nil but the CFL found the same to be 1.42%, which is in excess of prescribed maximum limit of 1.0%. The CFL had examined the sample from 26.07.2011 to 03.08.2011. Thus, it was so analysed after 03 months when it was lifted from the possession of the accused no.1. The nature of Kali Mirch Whole as a food product is such that some changes are bound to happen if sample is kept for such a period at room temperature without preservatives. The effect of presence of moisture, temperature, external environment, internal heat etc. cannot be ignored on such article in such circumstances. Such changes would be natural changes beyond human control. Presence of a single insect in the sample (which may not render the food article to be called as insect infested) may multiply and also increase the insect damaged matter in a CC No. 145/11 Page 12 of 14 sample kept for a long period. Few berries may also get damaged due to internal heat and pressure. Thus, there is possibility that such changes were natural changes, particularly when there is no material to show presence of insects. The burden would be on prosecution to rule out possibility of such natural changes before the accused persons can be convicted, particularly in view of such substantive variations in the two reports (where the CFL found insect infestation but PA did not find even a single insect, dead or alive; where the PA found fungal growth and Nil insect damaged matter but CFL did not find any fungal growth but insect damaged matter exceeding the limits; and where the PA found light berries in excess of prescribed limits but CFL found the same within limits). The only conclusion would be that either the sample was not made truly representative or otherwise it underwent a natural change during the intervening period which was beyond human control. In any case, the accused persons would get benefit of doubt.
24. Thus, as far as sections 2(ia)(a) and (m) are concerned, the accused persons are entitled to be given benefit of doubt considering the time gap, natural variations and variations in two reports. The evidence on record is not sufficient to conclude that the sample in question was 'adulterated' within the meaning of section 2(ia) of PFA Act as on the date of lifting the sample and thus, no case would be made out against the accused persons for commission of offences punishable under section 7/16 of the PFA Act.
CC No. 145/11 Page 13 of 1425. Having said so, both the accused persons are acquitted of the charges. However, their bail bonds shall remain in force for the next six months in terms of section 437-A. CrPC.
26. File be consigned to record room.
Announced in the open court this 18th day of April 2017 ASHU GARG ACMM-II (New Delhi), PHC Judge Code: DL-0355 CC No. 145/11 Page 14 of 14