Delhi District Court
Raju Gupta vs The Delhi Administration on 25 July, 2012
IN THE COURT OF SH. LAL SINGH, ASJ02/FTC, NEW DELHI
DISTRICT, PATIALA HOUSE COURTS, NEW DELHI
Case ID No. 02403R0125622010
Criminal Appeal No. 16/11
Raju Gupta
S/o Sh. M.L. Gupta
R/o 89, Jyoti Colony,
Shahdara, Delhi 32. ....Appellant
versus
1. The Delhi Administration,
Delhi.
2. Sh. Arun Kumar,
Food Inspector .... Respondents
Date of initial institution of the appeal : 13.04.2010
Date when appeal received by transfer : 31.01.2011
Date when the case reserved for judgment : 24.07.2012
Date of announcement of judgment : 25.07.2012
JUDGEMENT
This appeal is directed against the Judgment and order on sentence dated 12.03.2010 and 25.03.2010 respectively, passed by Ld. ACMMII, New Delhi in CC No. 125/99, whereby the appellant was convicted and sentenced to R.I. for a period of six months and also to pay a fine of Rs. CA No. 16/11 1/10 2,000/and in default of payment of fine S.I. for one month for violation of subclause (a) of Section 2 (ia) punishable under Section 16 (1) r/w Section 7 of PFA Act.
Briefly stated the facts of the case are that on 19.03.1999 at about 05.30 PM, F.I. Arun Kumar purchased a sample of "Kuttu Ka Atta", a food article, for analysis from appellant Raju Gupta, S/o Sh. M.L. Gupta at M/s. Gupta Provisional Store, B89, Jyoti Colony, Delhi32, where the said food article was found stored for sale for human consumption and the appellant Raju Gupta was found conducting the business of the said food article at the time of sampling. The sample consisted of 600 gms of 'Kuttu Ka Atta' taken from an open gunny bag bearing no label declaration. The sample was taken after proper mixing the contents with the help of clean and dry jhaba. The Food Inspector divided the sample then and there into three equal parts by putting them in three separate clean and dry bottles. Each bottle containing the sample was separately packed, fastened, marked and sealed according to the PFA Act and Rules. The vendor's signatures were obtained on the LHA slip and wrapper of the sample bottle. Notice was given to the appellant Raju Gupta and the price of the sample was also given to him. The Panchnama too was prepared at the spot. All the documents were prepared by FI Arun Kumar and were signed by the appellant Raju Gupta and the other witness FI A.K. Dhir. Before starting the sample proceedings efforts were made to join the public witnesses but none came forward. The CA No. 16/11 2/10 said sample was taken under the supervision of SDM/LHA R.P. Meena. 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 analysed the sample on 24.03.1999 and opined that there is no standards laid down under appendix 'B' of PFA Rules, 1955, for Kuttu Ka Atta, however, sample shows presence of pesticides residues (lindane) which is not allowed in milled food grains.
After the conclusion of the investigation, the entire case file 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 had accorded consent under section 20 of PFA Act 1954 for institution of the case and had authorized Food Inspector Arun Kumar to file the present complaint.
The appellant/accused was alleged to have violated the provisions of Section 2 (ia) (a) (b) (m) of PFA Act, punishable u/s 16 (1) (a) read with Section 7 of the PFA Act.
Thereafter, summons of the case were served upon the appellant/accused Raju Gupta and pursuant thereto he had appeared before the Ld. Trial Court. On 01.10.1999, the appellant/accused Raju Gupta 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 CA No. 16/11 3/10 Director, CFL, Calcutta vide certificate no. G.144/99 (PT.2)432 dated 22.11.1999 and found that the sample of Kuttu Ka Atta is adulterated.
Charge for contravention of provisions of Section 2 (ia)(a)(b)(m) of PFA Act punishable under section 16 (1) (a) read with section 7 m of the PFA Act was framed against the appellant/accused on 13.04.2005 to which appellant/accused pleaded not guilty.
I have heard the arguments on behalf of the appellant/accused and Ld. Chief Prosecutor for the respondent/State/Delhi Admn. Sh. Sanjay Gupta, Ld. Counsel for the appellant submitted that in the present case admittedly, no standard has been laid down under Appendix 'B' of the PFA Rules for Kuttu Ka Atta. However, use of Gama HCH, i.e. lindane is not allowed in milled food grains as per Rule 65 (2) of the PFA Rules. He further submitted that the question which primarily arose for consideration is that whether the kuttu ka atta is a food grain or not and in fact, kuttu ka atta is not a food grain, but is a fruit seed. He argued that since Kuttu Ka Atta is not a food grain, hence, it is used as food item in the Holy days of Navratras, as the eating of grain by devotees are not allowed in Navratras. He submitted that since it is not a grain and is only a fruit seed, therefore, it does not fall under the category of milled food grains. He argued that the prosecution has failed to proof that the jhabba, by which the sample was lifted from open gunny bag, was cleaned, as it was admitted by PW 1 in his crossexamination that jhabba was neither washed nor sterilized at the spot. CA No. 16/11 4/10 He further submitted that there is huge difference between the PA report and CFL report and on this ground alone the conviction is liable to be set aside.
On the other hand, the Ld. Chief Prosecutor for the respondent/Delhi Admn., vehemently argued that the milled food and milled food grains make no difference, because both are food items, but one is ingrain form which is original agriculture produce and the other one is the milled product of the food grain. He further submitted that the kuttu ka atta, i.e. buckwheat is used as a crop and the grain like use of the crop is common. He submitted that there is no illegality in the conviction judgment passed by the Ld. Trial Court.
I have gone through the record and perused the file. I have also perused the Public Analyst report as well as CFL report.
As per the PA report, there is no standards laid down under appendix 'B' of the PFA Rules, 1955, for Kuttu Ka Atta, however, sample shows presence of pesticide residues (lindane) which is not allowed in milled food grains. As per CFL report, the sample of Kuttu Ka Atta was found adulterated. In PA report moisture was found 10.76% and CFL report, the moisture was found 12 %. In PA report, total ash was found as 1.89 % and in the CFL report the total ash was 2.1 %. The ash insoluble ash in dil HCL was found 0.17 % in PA report, whereas, in CFL report, ash insoluble in dil HCI was found 0.1%. As per PA report, the Qty. Gamma HCH (lindane) was found 0.005 ppm, whereas, in CFL report, the residual pesticides in CA No. 16/11 5/10 ppm were found as HCH: 0.0012 PP' DDT (in combination) 0.0012, HCH:
0.0034 OP' DDT: Aldrin, HCH 0.0076 PP' DDE: ;Dieldrin, HCH: 0.0028 PP' TDE: Heptachlor. As per PA report, there is no standard laid down under Appendix B of the PFA Rules for Kuttu Ka Atta. PA report only says that sample shows the presence of pesticides residue (lindane), which is not allowed in the milled food, however, in CFL report it is only mentioned that the sample of Kuttu Ka Atta is adulterated. In the CFL report, it is nowhere reported that the pesticides residue (lindane) is not allowed in milled food. Otherwise also, there is big difference in the two reports, specially regarding moisture there is difference of more than one percent, as in PA report the moisture is found as 10.76% and in CFL report the moisture is reported as 12%. Further, total ash has been found 1.89% in PA report and it is found as 2.1% in CFL report. Therefore, there is huge variation in PA report and CFL report, regarding moisture and total ash. Further, there is also difference regarding residue pesticides (lindane). As per PA report, it is 0.005 ppm, whereas in CFL report it is 0.0076 %. Therefore, there is noticeable difference in PA report and CFL report. Moreover, PA report clearly states that there is no standard laid down for Kuttu Ka Atta in Appendix B of PFA Rules, 1955.
In Kanshi Nath Vs. State 2005 (2) FAC 219 (Delhi High Court), it was observed as follows :
"11. Coming to the next controversy, i.e., with regard to the CA No. 16/11 6/10 representativeness of the sample, it is clear from the Full Bench decision in MCD vs. Bishan Sarup (Supra) that if the samples are not representative, then any test report based on it would not indicate the true position. That being the case, a conviction can not be founded on such a test report. Upon an examination of the cases mentioned by Mr. Mittal, it also becomes clear that although in terms of Section 13 (3) of PFA Act, the Director's certificate would supersede the Public Analyst's report, the difference in the two can still be looked into by the courts for ascertaining as to whether the samples were representative or not. Mr. Sharma had placed reliance on the Supreme Court decision in Calcutta Municipal Corporation (supra) and particularly on paragraph 14 thereof which reads as under:
14. Thus the legal impact of a certificate of the Director of Central Food Laboratory is threefold. It annuls or replaces the report of the Public Analyst, it gains finality regarding the quality and standard of the food article involved in the case and it becomes irrefutable so far as the facts stated therein are concerned. (emphasis added) A careful reading of the Supreme Court decision reveals that the certificate of the Director, CFL supersedes the report of the Public Analyst and is conclusive as regards the quality CA No. 16/11 7/10 and standards of the sample tested. There is no quarrel with this and there can be none. But, this does not enable us to detract from the ratio of the Full Bench decision of this court in the case of MCD vs. Bishan Sarup (supra) that even after such a certificate is issued by the Director, CFL, it would still be open to the accused to establish, if he can do so on concrete grounds, that the sample tested was not a representative one. To this extent, the argument raised by Mr. Sharma that one the certificate of the Director, CFL is obtained, then that is final and conclusive and the Public Analyst's report cannot be looked into at all for any purpose whatsoever, is not quite tenable. If the variation in the two reports is substantial enough, then the Public Analyst's report can certainly be looked into to establish this variation so as to support the contention of the petitioner that the sample was not representative. As indicated above, the Director, CFL who was examined as CW1 in cross examination, has clearly stated that if the content of common salt as quantified by the two experts would have a variation of more than Y.3% then the samples would not be representative. This is an opinion of an expert and one has to go by it. In the facts of the present case, we find that the CA No. 16/11 8/10 variation, as indicated above, is more than Y.3%. 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.
Further in the case of State vs. Mahinder Kumar & Ors. 2008 (1) FAC 177, the Hon'ble High Court of Delhi, held that 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. These variations are more than .3% which is stated to be the permissible limit. It cannot therefore be said that identical representative samples were sent to both the Public Analyst as well as the CFTRI in the instant case the variation in the samples sent to the Public Analyst and the CFTRI is beyond the acceptable limits and renders the samples unrepresentative.
Further, in the case of Delhi Admn. Thr. Food Inspector vs. Narayan Dass, 2012 (1) JCC 536, it was observed that the variation in the reports of the samples of two counter parts of the same sample was large being 65.66 ppm which was more than 0.3%, the permissible limit of the CA No. 16/11 9/10 variation. Such variation, would certainly call to record that the sample drawn was not representative.
Therefore, it is amply clear that there is noticeable difference in the PA report as well as CFL report. Moreover, it is nowhere mentioned in both the reports that the sample was injurious to the health or human consumption. Even as per the PA report, there is no standard laid down for Kuttu Ka Atta. As there is huge difference in two reports, i.e. PA report and CFL report, hence, the conviction of the appellant cannot be sustained and it is liable to be set aside.
Therefore, as a sequel of above discussions I am of the considered view that appellant/accused is entitled to be acquitted. Accordingly, appeal is allowed. The Judgment of conviction and order on the sentence passed by the Ld. Trial Court are set aside and accordingly, the appellant is acquitted.
The previous bail bond of appellant is cancelled and his surety is discharged. Appellant to furnish fresh bail bond in the sum of Rs. 20,000/ with one surety to the like amount, in terms of Section 437 A Cr.P.C.
Trial court record be sent back alongwith copy of this judgment. Appeal file be consigned to record room after due completion.
Announced in the open court (LAL SINGH)
on 25th July, 2012 ASJ02/FTC, PHC/ND
25.07.2012
CA No. 16/11 10/10