Delhi District Court
Da vs Nissar Ahmad on 18 March, 2010
1
IN THE COURT OF SHRI SANJEEV KUMAR MALHOTRA,
ADDITIONAL CHIEF METROPOLITAN MAGISTRATE-II,
NEWDELHI
C.C. NO. 228/93
DA Versus Nissar Ahmad
U/s 7/16 of the Prevention of Food Adulteration Act, 1954
JUDGMENT
a. The Serial number of the case : 228/93
b. The date of the commission of the offence : 4.8.93
c. The name of the Complainant, if any : LHA S.K. Nanda
d. The name of the accused and his parentage : Nissar Ahmad
S/o Mohamad
Irshad , Bhai Bhai
General Store,
5175, Ballimaran,
Delhi-6
e. The offence complained of or proved : u/s 2 (ia)(a) (f)
(h) punishable U/s
16(1) (1A) read
with Section 7 of
the PFA Act.
f. The plea of the accused : Pleaded not guilty
g. The final order : Acquitted
h. Arguments heard on : 18.03.2010
i. judgment announced on : 18.03.2010
Brief statement of the reasons for such decision-
1. The present complaint is filed by the Delhi Administration through Local Health Authority S.K. Nanda against the above said accused, for prosecution of the offence under section 7/16 of the Prevention of Food Adulteration Act, 1954 (hereinafter referred to as the PFA Act).
22. The complainant has submitted that on 4.8.93 at about 2:45 p.m., Food Inspector, Virendra Singh purchased a sample of 'Rice', a food article, for analysis from Nissar Ahmad S/o Mohamad Irshad at Bhai Bhai General Store, 5175, Ballimaran, Delhi-6, where the said food article was found stored for sale and Sh. Nissar Ahmad was found conducting the business of the shop/store at the time of sampling. Approximate 750 gms Rice was taken from an open tin bearing no label declaration. The sample was taken after proper mixing with the help of clean and dry Jhaba. The Food Inspector divided the sample then and there into three equal parts and put them in separate clean and dry bottles. Each bottle containing the sample was separately packed, fastened, marked and sealed according to the PFA Act and Rules. Vendor's signatures were obtained on the LHA slip and the wrapper of the sample bottles. Notice was given to the accused Nissar Ahmad and the price of the sample was also given to him. The Panchnama was prepared at the spot. All the documents prepared by Sh. Virendra Singh Food Inspector were signed by the accused Nissar Ahmad and the other witness Shri Jeet Ram, Food Inspector. Before starting the sample proceedings efforts were made to join the pubic witnesses but none came forward. The sample was taken under the supervision of Sh. S.K. Nanda, LHA. One counter part of the sample was sent to the Public Analyst in intact condition and two counter parts were deposited with the LHA in intact condition. The Public Analyst gave the report on 2.9.93 and opined that the sample is adulterated because it is insect-infested with a large number of insects.
3. After the conclusion of the investigation, the entire case file 3 including the statutory documents and PA's report and the report of the FI was sent to the Director (PFA) Delhi Administration, Government of NCT of Delhi who accorded consent under Section 20 of PFA Act for institution of the case and authorised Sh. S.K. Nanda, LHA to file the present complaint.
4. The accused is allegedly to have violated the provisions of Section 2 (ia)(a)(f)(h) punishable U/s 16(1)(1A) read with Section 7 of the PFA Act and Rules.
5. Summons of the case were served upon the accused and pursuant thereto he had appeared before the court. On 2.2.94, accused moved an application to get the second counterpart of the sample analysed from the Director, CFL while exercising his right under Section 13(2) of the PFA Act and second counterparts of the sample was examined by the Director, CFL, Mysore vide Certificate No. 60/PFA/94 dated 9.3.94 and found that the sample does not conform to the standards laid down for rice under the provisions of the PFA Act and Rules thereof as (1) it is insect infested (b) It is mould infected & ( c) Aflatoxin content exceeds the maximum specified limit of 30 parts per billion.
6. Charge for contravention of provision of Section 2 (ia)(a) (f) (h) punishable U/s 16(1) (1A) read with Section 7 of the PFA Act and Rules was framed against the accused on 27.7.98 to which he pleaded not guilty.
7. In support of its case, complainant examined PW-1 F.I. Virender Singh; PW-2 S.K. Nanda, LHA & PW-3 F.I. Jeet Ram.
48. Statement of accused was recorded on 21.12.09 under Section 313 Cr.P.C as per procedure under Section 281 Cr.P.C wherein he has controverted and rebutted the entire evidence against him while submitting that he is innocent and preferred not to lead evidence in his defene.
9. As per section 2(ia)(a) of PFA Act, an article of food shall be deemed to be adulterated if the article sold by a vendor is not of the nature, substance or quality demanded by the purchaser and is to his prejudice, or is not of the nature substance or quality which it purports or is represented to be.
10.As per Section 2 (ia) (f) of PFA Act, if the article consists wholly or in part of any filthy, putrid, rotten, decomposed or diseased animal or vegetable substance or is insect-infested or is otherwise unfit for human consumption.
11. As per Section 2 (ia)(h) of PFA Act, if the article contains any poisonous or other ingredient which renders it injurious to health.
12. It is true that the mensrea in the ordinary or usual sense of this term is not required for proving an offence defined by Section 7 of the Prevention of Food Adulteration Act, 1954. It is enough if an article of adulterated food is either manufactured for sale or stored or sold or distributed in contravention of any provision of the Act or of any rule made thereunder. Nevertheless, the prosecution has to prove beyond reasonable doubt that what was stored or sold was food.
ARGUMENTS AND FINDINGS.
513.I have heard both the sides at length and have given my conscious thought and prolonged consideration to the material on record, relevant provisions of law and the precedents on the point. The SPP has argued that as the case is well proved and the accused are liable to be convicted. Ld. Defence counsel for accused, on the other hand, has vehemently argued that there was no insects at the time of sampling and the presence of live insects itself shows that bottles were not properly sealed as to why air was passing through the bottles resulting in survival of the insects.
Opinion of Director, CFL
14. On 2.2.94, accused moved an application to get the second counterpart of the sample analysed from the Director, CFL while exercising his right under Section 13(2) of the PFA Act and second counterparts of the sample was examined by the Director, CFL, Mysore vide Certificate No. 60/PFA/94 dated 9.3.94 and found that the sample does not conform to the standards laid down for rice under the provisions of the PFA Act and Rules thereof as (1) it is insect infested (b) It is mould infected & ( c) Aflatoxin content exceeds the maximum specified limit of 30 parts per billion.
15. No doubt, the Certificate of Director, CFL shall supersede the report of the Public Analyst and shall be final and conclusive evidence of the facts stated therein.
16.The main contention of the Ld. Defence counsel was that at the time of sampling, no insects were found in the sample commodity by 6 the Food Inspector or the LHA under whose supervision the sample was lifted and the presence of live insects in the sample commodity, if any, was a subsequent growth due to bad sampling. Admittedly, the sample was lifted on 4.8.93 and the report of the Public Analyst is of dated 2.9.93 and complaint is filed on 24.12.93 i.e after more than period of four months from the sampling. PW-3 F.I Jeet Ram confirmed in his cross-examination that it took about 45 minutes in completion of the sample proceedings and no insects were visible at the time of sampling.
17. In an authority reported as 1983 (II) PFA Cases 20 titled as MCD Vs Shri Ramji Dass and another, Hon'ble Division Bench, Delhi High Court, held as under:-
'' Para 8........... The article of food was taken on 12 September and it was analysed on 17th September. There was a time lapse of about 6 days in the taking of the same and its examination. Dr. Ajwani has stated that an insect may develop from an egg to an insect in about 1 to 14 days. It is possible that the living insects may have developed in the sample in question after the sample was taken. PW.4 gave evidence that he sample of Suji was taken out of a gunny bag which was half full and that he did not see any insect when the sample was taken. We also find that the report of the Public Analyst does not mention the number of living insects found in the sample which could mean that the number of insects may be only 2 or 3. The expression '' inset infested'' would mean a swarm of insects or at least a large number of insects.'' 7
18. In an another authority reported as 1984 (II) PFA Cases 304 titled as MCD Vs. Ved Parkash wherein it is held as under :-
'' Prevention of Food Adulteration Act, 1954- Section 13 (2)-exercise of right under-delay in filing complaint- it cannot be said that the trial court was wrong in holding that the sample bottle was not securely fastened because the Director, Central Food Laboratory had found '' appreciable amount'' of living insects in the sample examined by him after a lapse of five months. In other words, the bottle of sample was not air tight and the insects already present in the sample of Amchur whole continued breeding. The trial court was accordingly right in holding that the respondent because of the late filing of the complaint, could not effectively exercise his right under Section 13 (2) of the Act in obtaining the opinion of the Director, Central Food Laboratory, Calcutta, on the sample being not in the same condition in which it was at the time it was purchased. ''
19.Reverting back to the facts of the present case, admittedly, no live or dead insects were found by the Food Inspector during the entire sample proceedings at the spot and the Public Analyst found 10 living insects in 200 gms of the sample and by approximation gave the number of insects 50 per k.g. Director, CFL, although, did not give the number of insects but mentioned in the report that sample was infested with live and dead insects. No explanation whatsoever has come on record in respect of period of four months in filing the complaint after the report of Public Analyst in case of sample of rice, although, the complainant is aware that accused can exercise his right under Section 13 (2) of PFA Act only after institution of the complaint. The presence of live insects in the sample of rice after a period of about seven months by the Director, CFL is indicative of the fact that 8 the sample bottles were not made air tight and the presence of live and dead insects by Director, CFL was a subsequent growth as insects were getting oxigen to survive and were multiplying , for which accused cannot be held guilty. Further Rule 57 A permits 0.03 mg/kg Aflatoxin as crop contaminants in all articles of food. In the report of the Public Analyst, no Aflatoxin was found by P.A but Director, CFL found Aflatoxin 83 parts per billion, which appears to be less than permissible limit of 0.03 mg/kg. No explanation on behalf of the complainant has come on record that when no Aflatoxin contents were found by Public Analyst, how it came in the second counterpart of same sample.
20.In view of the above reasons and discussions, I am of the considered opinion that the complainant has failed to prove its case against the accused beyond reasonable doubt. In result, complaint stands dismissed and accused is acquitted of the charge. Bail bond stands cancelled. Surety discharged. File be consigned to the record room.
Announced in the open court. ( S.K. MALHOTRA ) Dated:18.03.2010 ACMM-II/NEW DELHI.