Delhi District Court
Fi vs . Anil Goel Etc. Page 1 Of 25 on 9 September, 2013
IN THE COURT OF SHRI BALWANT RAI BANSAL
ADDITIONAL CHIEF METROPOLITAN MAGISTRATEII,
PATIALA HOUSE COURTS, NEW DELHI
C.C. No. 1/99
Food Inspector
Department of PFA
Govt. of NCT of Delhi
A20, Lawrence Road, Indl. Area, Delhi - 35
................. Complainant
Versus
1. Sh. Anil Goel S/o late Sh. Kishori Lal
M/s Rasoi Store, B17, Shop No. 2
Batra Shopping Complex,
Mukherjee Nagar, Dehi 9
..................VendorcumProprietor
2. Sh. Kapoor Chand Grover
M/s Balajee Traders
B10, Commercial Complex,
Sr. Mukherjee Nagar, Delhi - 9
.................. Supplier
3. Sh. K.K. Bhadra, Asstt. Manager Sales
Gujarat Cooperative Milk Marketing Federation Ltd.
1210, New Delhi House, 27,
Barakhamba Road, New Delhi
.................. Nominee
CC No. 1/99
FI Vs. Anil Goel Etc. Page 1 of 25
4. M/s Gujarat Cooperative Milk Marketing Federation Ltd.
1210, New Delhi House, 27,
Barakhamba Road, New Delhi
.................. Distributor
5. Sh. N.K. Chawla
National Dairy Development Board
.................. Executive Director
6. Sh. C.H. Sathynarayana
Quality Control Officer
M/s National Diary Development Board, Anand.
.................. Nominee
7. M/s National Dairy Development Board
Anand, India
.................. Manufacturing Company
COMPLAINT U/S 16 OF THE PREVENTION OF FOOD
ADULTERATION ACT, 1954
Serial number of the case : 1/99
Date of the commission of the offence : 24.08.1998
Date of filing of the complaint : 21.01.1999
Name of the Complainant, if any : Shri S.K. Sharma, Food Inspector
Offence complained of or proved : For violation of provision of
Section 2 (ia) (a) (b) (c) & (m) of
PFA Act, punishable U/s 16 (1) (a)
r/w Section 7 of PFA Act 1954.
Plea of the accused : Pleaded not guilty
Final order : Acquitted
Arguments heard on : 22.08.2013
Judgment announced on : 09.09.2013
CC No. 1/99
FI Vs. Anil Goel Etc. Page 2 of 25
J U D G M E N T
1. The present complaint has been filed on 21.01.1999 by the Delhi Administration through FI Sh. S.K. Sharma against the accused persons. It is stated in the complaint that on 24.08.1998 at about 5.15 PM, FI Sh. Jeet Ram purchased a sample of 'Double Filtered Mustard Oil (Dhara)', a food article for analysis from accused Anil Goel S/o late Sh. Kishori Lal at M/s Rasoi Store, B17, Shop No. 2, Batra Shopping Complex, Mukherjeet Nagar, Delhi9, where the said food article was found stored for sale and where accused Anil Goel was found conducting the business of the said food article at the time of sampling. The sample consisted of 3x1 litres of sealed plastic polypack bottles of 'Mustard Oil' taken as such originally bearing identical label declaration. The sample was taken after properly shaking the plastic bottles in all directions several times under the supervision of FI S.K. Sharma. The Food Inspector divided the sample then and there into three equal parts by putting them in three separate clean and dry bottles and each bottle containing the sample was separately packed, fastened and sealed according to the PFA Act and Rules. The signatures of vendor were obtained on the LHA slip and the wrapper of the sample counterparts. Notice was given to accused Anil Goel and price of sample was also given to him. Panchnama was also prepared at the spot. All these documents prepared by FI Sh. Jeet Ram were signed by accused Anil Goel, the vendor and the other witness namely Sh. Hukam Singh, FI. It is stated that before taking the sample, efforts were made to get the public CC No. 1/99 FI Vs. Anil Goel Etc. Page 3 of 25 witnesses to join the proceedings, but none came forward.
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 condition were deposited with LHA. The Public Analyst analyzed the sample and opined that "The sample does not conform to standard laid down under item No. A.17.06 of Appendix 'B' of PFA Rules, 1955 because sample shows presence of Argemone Oil, it is injurious to health and also likely to cause death."
3. It is further that stated that during investigations, it was found that Anil Goel S/o Sh. late Sh. Kishori Lal was the vendorcumproprietor of M/s Rasoi Store, B17, Shop No. 2, Batra Shopping Complex, Mukherjee Nagar, Delhi - 9 and the sample commodity was supplied to him by M/s Balajee Traders, B10, Commercial Complex, Dr. Mukherjee Nagar, Delhi9, which is a proprietorship of Kapoor Chand Grover. The said supplier had purchased the sample commodity from Gujarat Co operative Milk Marketing Federation, 1210, New Delhi House, 27, Barakhamba Road, New Delhi which is a sole selling agent for National Dairy Development Board and its Nominee at Delhi is K.K. Bhadra, Asstt. Manager (Sales) who is incharge of and responsible for its day to day working at Delhi being its nominee. The sample commodity was manufactured by National Dairy Development Board, Anand and Sh. Sathynarayana, Quality Control Officer is its nominee and is incharge of and responsible to the said manufacturing company for the conduct of its CC No. 1/99 FI Vs. Anil Goel Etc. Page 4 of 25 day to day business. It is further stated that NDDB has transacted its sale through Gujarat Cooperative Milk Marketing Federation Ltd. and Sh. N.K. Chawla, Executive Director who is on the board of NDDB has been stated to be overseeing the oil project of NDDB including Dhara operations and as such he is the person who is incharge of and responsible to NDDB for its day to day business. It is stated that after conclusion of 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 against the aforesaid accused persons for violation of provisions of Section 2 (ia) (a) (b) (c) (f) (h) (l) of PFA Act, punishable U/s 16 (1) (1A) r/w Section 7 of the PFA Act 1954.
4. The accused no. 4 and 7 were summoned vide order dated 25.01.1999 and the NBWs were directed to be issued against the other accused persons on the basis of report of Public Analyst who found the presence of argemone oil in the sample, which is injurious to health. One Sh. R.K. Kothari, Authorized Representative of accused no. 7, which has been impleaded as manufacturing company of the sample commodity, appeared and moved an application U/s 13 (2) of the PFA 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 Central Food Laboratory, Calcutta for analysis. Director, CFL on analysing the second counterpart of the sample in question opined vide his Certificate dated 25.03.1999 that CC No. 1/99 FI Vs. Anil Goel Etc. Page 5 of 25 "The sample of Mustard Oil is adulterated".
5. It is relevant here to mention that after receiving the report from the Director, CFL, which showed the test for argemone oil in the sample commodity 'Negative', the Ld. Predecessor vide order dated 19.04.1999 recalled the NBWs issued against the accused no. 1, 2 , 3, 5 and 6 and summons were directed to be issued against them. The said accused persons appeared and were admitted to bail.
6. It is also pertinent here to mention that during the proceedings of the present case, accused no. 1 expired and proceedings against him stood abated. Accused no. 5 was also discharged vide order dated 28.11.2000 by the Hon'ble High Court of Delhi.
7. Notice for violation of provisions of Section 2 (ia) (a) (b) (c) &
(m) of PFA Act, punishable U/s 16 (1) (a) r/w section 7 of PFA Act against the accused no. 2, 3, accused no. 4 through its AR, accused no. 6 and accused no. 7 through its AR was framed separately vide order dated 18.09.2003 to which they pleaded not guilty and claimed trial.
8. Thereafter, in order to prove its case, the prosecution examined three witnesses namely FI Sh. S.K. Sharma who filed the present complaint as PW1, FI Hukam Singh who was made a witness in the sample proceedings as PW2 and FI Sh. Jeet Ram who conducted the sample proceedings as PW3 and PE was closed vide order dated 03.01.2013.
9. Statement of all the contesting accused persons U/s 313 Cr.P.C. was recorded separately on 07.03.2013 wherein they claimed CC No. 1/99 FI Vs. Anil Goel Etc. Page 6 of 25 themselves to be innocent. However, they opted not to lead evidence in their defence and accordingly DE was closed vide order dated 07.03.2013.
10. I have heard the Ld. Counsel for the parties and perused the record carefully.
11. Ld. Counsel for accused no. 2 has argued that accused no. 2 had purchased the sample commodity from accused no. 4 Gujarat Co operative Milk Marketing Federation Ltd. of which accused no. 3 is the Nominee vide Bill Ex. PW3/B1 and had sold the sample commodity to accused no. 1/vendor in the same condition in which he purchased from the accused no. 3 and 4 and therefore, accused no. 2 is entitled for benefit of warranty U/s 19 (2) of PFA Act and is liable to be acquitted.
12. Ld. Counsel for accused no. 3 & 4 has argued that accused no.
4 is the sole selling agent of accused no. 7 National Dairy Development Board (NDDB), which is the manufacturing company of sample commodity of which accused no. 6 is the Nominee and the accused no. 4 had received the sample commodity from accused no. 7 vide dispatch cum delivery challan Mark DA and sold the sample commodity in the same condition to the accused no. 2 and hence accused no. 3 and 4 are entitled for benefit of warranty U/s 19 (2) of PFA Act. It is also argued by Ld. Counsel for accused no. 3 and 4 that even otherwise a representative sample was not lifted by the Food Inspector which is manifest from the variations in the report of Public Analyst and Director, CFL.
CC No. 1/99 FI Vs. Anil Goel Etc. Page 7 of 2513. Ld. Counsel for accused no. 6 and 7 conceded that accused no. 7 is the manufacturing company of the sample commodity and accused no. 6 is its Nominee and sample commodity was sold by accused no. 7 to accused no. 4 vide delivery challan Mark DA and they have no objection if the benefit of warranty U/s 19 (2) PFA Act is granted to accused no. 4 of which accused no. 3 is the Nominee. However, Ld. Counsel vehemently argued that there are variations in the report of Public Analyst and Director, CFL, which suggests that a representative sample was not lifted by the Food Inspector and in the absence of representative sample, accused cannot be convicted. He further argued that in the Notice in Form VI Ex. PW1/B and in the report of Public Analyst, different batch number of the sample has been given and it shows that correct sample was not sent to the Public Analyst, for which benefit of doubt is liable to be given to accused persons.
14. On the other hand, Ld. SPP for complainant has argued that variations in the report of Public Analyst and Director, CFL does not make any difference. He contended that as per report of Director, CFL the sample was found adulterated and the report of Director, CFL being conclusive, supersedes the report of the PA and, therefore, the accused can not be given the benefit of doubt on account of variations in report of two experts.
15. All the PWs have deposed more or less as per the averments made in the complaint. FI Jeet Ram who is the star witness and conducted the sample proceedings has been examined as PW3. He deposed in his examinationinchief that on 24.08.1998, he along with FI S.K. Sharma and CC No. 1/99 FI Vs. Anil Goel Etc. Page 8 of 25 FI Hukam Singh under the supervision FI S.K. Sharma visited the premises of M/s Rasoi Store, B17, Shop No. 2, Batra Shopping Complex, Mukherjee Nagar, Delhi, where accused Anil Goel was found conducting the business of above mentioned shop having stored various food articles including 'Double Filtered Mustard Oil (Dhara) for sale for human consumption and the said Double Filtered Mustard Oil (Dhara) was lying in sealed poly pack plastic bottles of 1 litre each, bearing identical label declaration. He further deposed that they disclosed their identity and expressed his intention to purchase a sample of 'Double Filtered Mustard Oil (Dhara)', for analysis to which accused agreed and thereafter at about 5.15 PM, he purchased 3 above mentioned sealed poly pack plastic bottles of Double Filtered Mustard Oil (Dhara)' of 1 liter each, on payment of Rs. 175.50/ vide vendor's receipt Ex. PW1/A. He further deposed that so purchased quantity of sample commodity was converted into three counterparts by putting one originally sealed plastic poly pack bottle as one counterpart and all the three counterparts were separately packed, fastened, marked and sealed as per PFA Act and Rules. It is further deposed by PW3 that notice in Form VI was prepared and a copy of same was also given to the vendor who disclosed the source of purchase of the sample commodity on this notice and accordingly a notice U/s 14A of PFA Act was prepared at the spot addressing to M/s Balaji Traders and was sent to the addressee through registered post. He further deposed that Panchnama was also prepared on the spot and all the aforesaid documents were read over and CC No. 1/99 FI Vs. Anil Goel Etc. Page 9 of 25 explained to the vendor who after understanding signed the same. PW3 further deposed that on 25.08.1999 one counterpart of the sample was deposited with PA and remaining two counterparts were deposited with LHA on the same day. He further deposed that PA report was received according to which the sample was not conforming to the standard and accordingly he started investigations. He further deposed that after conclusion of investigations, the entire case file was forwarded by the concerned LHA to the then Director, PFA who accorded requisite consent for initiating prosecution against the accused persons and then FI S.K. Sharma filed the present complaint.
16. During his deposition, PW3 has also placed on record written statement given by vendor during investigations as Ex. PW3/A, statement given by the accused no. 2 as Ex. PW3/B admitting therein the sale of the sample commodity to the vendor and further disclosing that he had purchased the same from accused no. 4, Bill of purchase submitted by accused no. 2 as Ex. PW3/B1, letter sent by him to STO, Ward No. 72 as Ex. PW3/C, another letter sent to STO, Ward No. 72 as Ex. PW3/C1 photocopy of Nomination in favour of Sh. C.H. Sathynarayana, Quality Control Officer of NDDB as Ex. PW3/D, photocopy of nomination in favour of Sh. K.K. Bhadra by GCMMF Ltd, as Ex. PW3/E and photocopy of resolution and a letter which are Ex. PW3/E1 & Ex. PW3/E2 respectively.
CC No. 1/99 FI Vs. Anil Goel Etc. Page 10 of 2517. PW1 FI S.K. Sharma under whose supervision the sample proceedings were conducted has corroborated the version of PW1 in his examinationinchief and has placed on record vendor's receipt by which price of sample was paid to the vendor as Ex. PW1/A, notice in Form VI prepared at the spot as Ex. PW1/B, Panchnama as Ex. PW1/C, Notice U/s 14A of PFA Act prepared at the spot addressing to Balajee Traders as Ex. PW1/B1, PA receipt showing deposition of one counterpart of the sample to Public Analyst as Ex. PW1/D, receipt showing deposition of remaining two counterparts with LHA as Ex. PW1/E, PA report as Ex. PW1/F, consent given by Director, PFA for prosecution against the accused persons as Ex. PW1/G, complaint filed by him as Ex. PW1/H, copy of intimation letter sent to the accused persons as Ex. PW1/I along with PA report and photocopy of postal registration receipt as Mark X.
18. PW3 FI Sh. Hukam Singh who accompanied the Raiding Party and was made a witness in the sample proceedings in his evidence has also more or less deposed on the similar lines as deposed by PW1 & PW2 in their examinationinchief.
19. Accused no. 2, who is the proprietor of M/s Balajee Traders from whom the accused no. 1/vendor claimed to have purchased the sample commodity, in his statement recorded U/s 313 Cr.P.C. feigned ignorance regarding the sample proceedings and stated that he has no knowledge. However, it was contended by accused no. 2 that he had purchased the sample commodity from GCMM Ltd. in a sealed condition and supplied as CC No. 1/99 FI Vs. Anil Goel Etc. Page 11 of 25 such to accused Anil Goel from whom the sample was lifted and hence he is not liable for any offence.
20. Accused no. 3, who has been impleaded as Nominee of M/s Gujarat Cooperative Milk Marketing Federation Ltd.(accused no. 4 herein), from whom the accused no. 2 has claimed to have purchased the sample commodity, in his statement recorded U/s 313 Cr.P.C. also stated that he has no knowledge about the sample proceedings as he was not present personally on the spot. Though, accused no. 3 has admitted that the sample commodity was supplied by Gujarat Cooperative Milk Marketing Federation Ltd. to accused no. 2, but he contended that the sample commodity was packed and marketed by National Dairy Development Board, Anand for which Gujarat Cooperative Milk Marketing Federation Ltd. was the sole selling agent for Dhara brand of edible oil including Mustard Oil and the sample commodity was in sealed pack and was not tampered with and was sold in the same condition in which it was received from NDDB vide dispatch order cum delivery challan No. 2/46459 dated 03.08.1998.
21. Accused no. 4 in its statement recorded U/s 313 Cr.P.C.
through its AR Sh. R.K. Mathur also feigned ignorance regarding the sample proceedings.
22. Accused no. 7 who has been impleaded as manufacturing company of sample commodity and accused no. 6, who has been impleaded as Nominee of accused no. 7 company, in their statement recorded U/s 313 CC No. 1/99 FI Vs. Anil Goel Etc. Page 12 of 25 Cr.P.C. though feigned ignorance about the sample proceedings, but contended that a representative sample was not taken.
23. It is not in dispute that on 24.08.1998 at about 5.15 PM, a sample of 'Double Filtered Mustard Oil (Dhara)' was lifted by the FI Jeet Ram from accused no. 1 from his shop M/s Rasoi Store, B17, Shop No. 2, Batra Shopping Complex, Mukherjee Nagar, Delhi. The sample of 'Double Filtered Mustard Oil' was sent to the Public Analyst, who vide his report dated 02.09.1998 found the sample not conforming to the standard because sample showed the presence of argemone oil. The report of Public Analyst has been proved on record as Ex. PW1/F on the basis of which present complaint has been launched against the accused persons. As per case of prosecution, during investigations, it was found that the sample commodity was supplied to the accused no. 1/vendor by M/s Balajee Traders, of which accused no. 2 is the proprietor. It was further revealed that accused no. 2 of M/s Balajee Traders had purchased the sample commodity from accused no. 4 Gujarat Cooperative Milk Marketing Federation Ltd. of which accused no. 3 is the Nominee. It was also revealed that sample commodity was manufactured by accused no. 7 National Dairy Development Board, Anand of which accused no. 6 is the nominee and accused no. 5 is the Executive Director of NDDB who was looking after the oil project of NDDB and all the aforesaid accused persons are liable to be convicted for the adulteration found in the sample commodity.
CC No. 1/99 FI Vs. Anil Goel Etc. Page 13 of 2524. Admittedly, the accused no. 1/vendor from whom the sample of 'Double Filtered Mustard Oil (Dhara)' was lifted by the Food Inspector expired during the proceedings of the present case. The accused no. 2, who admittedly supplied the sample commodity to accused no. 1/vendor, has taken a defence that he had purchased the sample commodity from accused no. 4 Gujarat Cooperative Milk Marketing Federation Ltd. of which accused no. 3 is the Nominee vide Bill in a sealed condition and sold the sample commodity in the same condition to the accused no. 1 from whom the sample was lifted. Accused no. 2 also provided the photocopy of the bill of purchase to the Food Inspector during investigation. The said bill has been placed on record as Ex. PW3/B1. On the basis of this bill, the accused no. 2 has claimed warranty U/s 19 (2) of PFA Act against the accused no. 3 and 4.
25. Section 19 (2) of PFA Act reads as under: "A Vendor shall not be deemed to have committed an offence pertaining to the sale of any adulterated or misbranded article of food if he proves
(a) that he purchased the article of food
(i) in a case where a licence is prescribed for the sale thereof, from a duly licensed manufacturer, distributor or dealer,
(ii) in any other case, from any manufacturer, distributor or dealer, with a written warranty in the prescribe form; and
(b) that the article of food while in his possession was properly stored and that he sold it in the same state as he purchased it."
26. As such, in order to avail the benefit of warranty /protection U/s 19 (2) of PFA Act, the accused no. 2 was not only required to prove that he had purchased the sample commodity of 'Double Filtered Mustard CC No. 1/99 FI Vs. Anil Goel Etc. Page 14 of 25 Oil' from Gujarat Cooperative Milk Marketing Federation Ltd. (accused no. 4 herein) of which accused no. 3 is the Nominee under a written warranty, but was also required to prove that he stored the sample commodity properly under his possession and sold the sample commodity to accused no. 1/vendor in the same state/condition in which he purchased from accused no. 4.
27. PW1 FI S.K. Sharma under whose supervision the sample proceedings were conducted categorically admitted in his cross examination conducted by Ld. Counsel for accused no. 2 that during investigation accused Kapoor Chand Grover wrote a letter dated 18.09.1998 to FI Sh. Jeet Ram to the effect that he had purchased the sample commodity from M/s Gujarat Cooperative Milk Marketing Federation Ltd. and accused Kapoor Chand also sent the photocopy of the invoice dated 10.08.1998.
28. Accused no. 3 who is admittedly Nominee of accused no. 4 from whom the accused no. 2 has claimed to have purchased the sample commodity in his statement U/s 313 Cr.P.C. has also not disputed the sale of sample commodity to accused no. 2. When a question was put to him that accused Kapoor Chand (accused no. 2) disclosed that he had purchased the sample commodity from Gujarat Cooperative Milk Marketing Federation Ltd. (accused no. 4) and he also submitted bill of purchase vide Ex. PW3/B1, he simply answered that it is a matter of record. Similar is the answer of accused no. 4 in its statement U/s 313 Cr.P.C. Meaning thereby, CC No. 1/99 FI Vs. Anil Goel Etc. Page 15 of 25 the accused no. 3 and 4 admitted the sale of sample commodity to the accused no. 2 vide bill Ex. PW3/B1.
29. In view of aforesaid categorical admission of accused no. 3 and 4 and the evidence of PW1, it stands proved that sample commodity was purchased by accused no. 2 from accused no. 4 of which accused 3 is the Nominee vide Bill Ex. PW3/B1.
30. So far as the second requirement of Section 19 (2) of PFA Act is concerned, PW1 in his crossexamination conducted by Ld. Counsel for accused no. 2 categorically admitted that the sample commodity was in originally sealed plastic bottles and was found properly stored and there was no tampering in it. PW2 also admitted in his crossexamination that sample commodity was in originally sealed condition and the tetra packs were not found tampered with in any manner and were found properly stored at the time of their visit to the shop. Similarly, PW3 FI Jeet Ram who conducted the sample proceedings admitted in his crossexamination that the sample commodity was lying in originally sealed condition and was not found tampered with when the sample was lifted by him from the vendor.
31. From the aforesaid categorical admission of the PWs, it further stands proved that the accused no. 2 stored the sample commodity properly in his possession and sold the sample commodity to accused no. 1/vendor from whom the sample was lifted in the same condition as purchased by him from accused no. 4. As such, accused no. 2 has fulfilled both the CC No. 1/99 FI Vs. Anil Goel Etc. Page 16 of 25 conditions as envisaged U/s 19 (2) of PFA Act. Hence, accused no. 2 is entitled for warranty u/s 19 (2) of PFA Act and is accordingly acquitted of the charges leveled against him.
32. Accused no. 3 and 4 have also claimed benefit of warranty U/s 19 (2) of PFA Act against the accused no. 6 and 7 on the ground that accused no. 4 Gujarat Cooperative Milk Marketing Federation of which accused no. 3 is the Nominee was the sole selling agent for Dhara brand of edible oil including Mustard Oil manufactured by accused no. 7 National Dairy Development Board, Anand (NDDB) of which accused no. 6 is the Nominee and it received the sample commodity of Double Filtered Mustard Oil of Dhara Brand from accused no. 7 vide dispatch order cum delivery challan No. 2/46459 dated 03.08.1998 and sold the sample commodity in the same condition in which it was received from accused no. 7 NDDB. The said dispatch order cum delivery challan has also been placed on record as Mark DA.
33. It is not in dispute that at the time of sample proceedings, several documents including notice in Form VI Ex. PW1/B were prepared at the spot by the Food Inspector. The Food Inspector Jeet Ram reproduced the contents of label declaration of the sample commodity in notice in Form VI Ex. PW1/B, copy of which was also given to the accused no.1/vendor. As per label declaration of the sample commodity as reproduced in notice Ex. PW1/B, the sample commodity was packed and manufactured by accused no. 7 NDDB, Anand.
CC No. 1/99 FI Vs. Anil Goel Etc. Page 17 of 2534. PW1 in his cross examination conducted by Ld. Counsel for accused no. 4 categorically admitted that as per the label declaration, the sample commodity was marketed and packed by NDDB through GCMMFL. In his crossexamination by Ld. Counsel for accused no. 3, he could not deny that GCMMFL purchased the sample commodity from NDDB through Bill No. 2/46459, photocopy of which is Mark DA. PW3 also in his crossexamination conducted by accused no. 3 and 4 admitted that as per the label declaration, it was mentioned on the label that the sample commodity was packed and marketed by NDDB, Anand.
35. Accused no. 7 National Dairy Development Dairy (NDDB) and the accused no. 6 who is admittedly Nominee of accused no. 7 have not disputed in their statement U/s 313 Cr.P.C. that sample commodity was packed and manufactured by accused no. 7 and it supplied the sample commodity to accused no. 4 vide delivery cum dispatch challan Mark DA. Rather, during the course of arguments the Ld. Counsel for accused no. 6 and 7 fairly conceded that accused no. 7 of which accused no. 6 is the nominee is manufacturing company of sample commodity and it supplied the sample commodity to accused no. 4 of which accused no. 3 is the nominee.
36. From the aforesaid categorical admission of accused no. 6 & 7 and further from the evidence of PWs, it stands proved that sample commodity was manufactured by accused no. 7 NDDB of which accused no. 6 is the nominee and sample commodity was supplied by accused no. 7 CC No. 1/99 FI Vs. Anil Goel Etc. Page 18 of 25 to accused no. 4 of which accused no. 3 is the nominee vide delivery challan Mark DA. As it has already come on record from the evidence of PWs that sample commodity was found properly stored and was not found tampered with in any manner, when the same was lifted from accused no. 1, it also stands proved that the sample commodity was sold by the accused no. 4 of which accused no. 3 is the nominee to the accused no. 2 in the same condition in which it was purchased from accused no. 7 of which accused no. 6 is the nominee. As such, accused no. 3 and 4 are also entitled for benefit of warranty U/s 19 (2) of PFA Act and according they are also acquitted of the charges leveled against them.
37. So far the liability of accused no. 6 and 7 is concerned, from the foregoing discussions, it has come on record that on 24.08.1998, sample of Double Filtered Mustard Oil, which was packed and manufactured by accused no. 7 of which accused no. 6 is the Nominee, was lifted by the Food Inspector for analysis, which on being analyzed by the Public Analyst found not conforming to standards as presence of argemone oil was detected. Accused no. 7, through its AR exercised its right U/s 13 (2) of PFA Act to get the second counterpart of the sample analyzed by the Director, Central Food Laboratory. The Director, CFL, Calcutta vide his Certificate dated 25.03.1999 also found the sample adulterated.
38. As per defence taken by the accused no. 6 and 7 in their statement recorded U/s 313 Cr.P.C, a representative sample was not lifted by the Food Inspector and, therefore, there are huge variations in the reports CC No. 1/99 FI Vs. Anil Goel Etc. Page 19 of 25 of both the Analysts for which they are liable to be given benefit of doubt.
39. Though, in the present case, both the Public Analyst and Director, CFL came to the same conclusion that the sample was adulterated, but a perusal of reports of both the Analysts shows that the various tests performed by the Public Analyst and Director, CFL gave different results and there are variations in the material parameters of the sample sent to both the Analysts. In the sample sent to the Public Analyst, BR value i.e. Butyro refractometer reading at 40 deg was found as 60, whereas Director, CFL found the same as 59.9. Further, as per report of Public Analyst Ex.PW1/F, Sapnoification value was 169.83, Iodine Value was 108.53 and Acid Value was 1.54. While, the Director, CFL found the Sapnoification value as 176.0, Iodine Value as 107.6 and Acid Value as 1.47. It is also to be noted that the Public Analyst vide its report Ex. PW1/F found the sample adulterated as presence of argemone oil was detected in the sample and on the basis of same present complaint has been launched against the accused persons. However, the Director, CFL after analyzing the second counterpart of the sample came to the different conclusion and found the Test for Argemone Oil 'Negative', which is in contradiction to the report of Public Analyst. The Director, CFL found the sample adulterated on the ground of deficiency in other parameters of the sample commodity and it shows that reports of both the Experts are not only at variance but are contradictory to each other.
40. In State Vs. Rama Rattan Malhotra 2012 (2) FAC 398 after CC No. 1/99 FI Vs. Anil Goel Etc. Page 20 of 25 relying upon various judgments titled as Kanshi Nath Vs. State 2005(2) FAC 219 and State Vs. Mahender Kumar & Ors, 2008 (1) FAC 177, the Hon'ble High Court of Delhi has held that, "Since in the present case, variation in public 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, the Hon'ble Delhi High Court 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".
41. Similarly, It has been held by the Hon'ble Delhi High Court in M/s Raja Ram Seth & Sons & Anr. Vs. Delhi Administration that, "If the variations in the report of PA and CFL is more than 0.3 % which is stated to be permissible limit, it cannot be said that identical representative samples were sent to both the Public Analyst and CFL and therefore it raises a doubt about the sample of being not homogenized and no conviction is permissible on the basis of said reports and benefit of doubt is CC No. 1/99 FI Vs. Anil Goel Etc. Page 21 of 25 liable to be given to the accused." Similar view has been taken by the Hon'ble High Court of Delhi in State (Delhi Administration) Vs. Ram Singh & Ors. 2009 (1) FAC 371. Reliance may also be placed upon State Vs. Suresh Kumar & Anr. 2010 (2) FAC 204.
42. In the present case also, since there are variations in the reports of Public Analyst and Director, Central Food Laboratory which are beyond the acceptable range of variation i.e. 3%, therefore, in view of law laid down in the aforesaid authorities, it appears that representative samples were not sent to both the Experts.
43. A representative sample was not lifted in the present case is further fortified from the discrepancies regarding the description of the sample commodity. Perusal of notice Ex. PW1/B which find mentioned the description of the sample commodity would reveal that Batch No. of the sample commodity has been shown as 4K02, while in the report of Public Analyst Ex. PW1/F, Batch Number of the sample commodity has been mentioned as R4K02. In this regard, PW1 has admitted in his cross examination conducted by accused no. 3 that the Batch Number of the sample commodity was 4K02. PW2 also in his crossexamination conducted by accused no. 6 and 7 categorically admitted that the declaration printed on the labels of the sample commodity was correctly reproduced on Notice Ex. PW1/B and the Batch Number mentioned therein was 4K02. PW1 who reproduced the contents of label declaration in notice Ex. PW1/B in his crossexamination stated that he is not aware if it CC No. 1/99 FI Vs. Anil Goel Etc. Page 22 of 25 was mentioned on the complaint that the correct Batch Number of the sample bottles was R4K02.
44. The aforesaid statement of PWs coupled with the notice in Form VI Ex. PW1/B shows that the correct Batch Number of the sample commodity was 4K02. However, in the report of Public Analyst Ex. PW1/F, different Batch Number of the sample commodity has been shown, which goes to show that correct sample was not sent to the Public Analyst for analysis as also argued by the Ld. Counsel for accused no. 6 and 7.
45. Not only this, there is further discrepancy regarding the description of sample commodity that as per notice in Form VI Ex. PW1/B, the Food Inspector lifted the sample of 'Kachi Ghani Mustard Oil' of Dhara brand, while as per the averments made in the complaint, sample of 'Double Filtered Mustard Oil' of Dhara brand was lifted. Again, as per notice in Form VI Ex. PW1/B, 3 sealed plastic poly pack bottles of Mustard Oil of 1 liter each were taken in original condition having identical label declaration, while in the complaint it is mentioned that contents of sample were packed in sealed sample bottles. The complainant has failed to explain the aforesaid discrepancies and in this regard, PW3 FI Jeet Ram who conducted the sample proceedings stated in his crossexamination conducted by accused no. 6 & 7 that he cannot tell under what circumstances it was mentioned in the complaint that the sample was of Double Filtered Mustard Oil. He also could not tell that under what CC No. 1/99 FI Vs. Anil Goel Etc. Page 23 of 25 circumstances it was mentioned in the complaint that the contents of the sample were packed in sealed sample bottles.
46. Likewise, as per the averments made in the complaint, the Food Inspector had taken the sample of 'Double Filtered Mustard Oil' which consisted of 3x1 of litres of sealed plastic polypack bottles of 'Mustard Oil' taken as such in original condition and the sample was taken after properly shaking the plastic bottles in all directions and thereafter the Food Inspector divided the sample into three equal parts by putting them in three separate clean and dry bottles. While, as per report of Director, CFL, he found the sample in a closed plastic bottle. Hence, again there is discrepancy regarding the procedure of lifting the sample and it is not sure as to whether the plastic polypack bottles of Mustard Oil were taken as such in originally sealed condition as sample as per the report of Director, CFL or the contents of the bottles were further put in separate clean and dry bottles after dividing the same into three equal portions as per the averments made in the complaint.
47. In view of foregoing discussions, since there are variations in the report of Public Analyst and Director, Central Food Laboratory which are beyond the permissible limit of 3% and further there are discrepancies regarding the description of sample commodity as mentioned above, I find considerable force in the contention of the Ld. Counsel for accused no. 6 and 7 that sample taken by the Food Inspector was not representative one. Therefore, benefit of doubt is liable to be given to the accused no. 6 and 7.
CC No. 1/99 FI Vs. Anil Goel Etc. Page 24 of 25Accordingly, accused no. 6 and 7 are given benefit of doubt and they are also acquitted of the charges leveled against them.
File be consigned to Record Room.
Announced in the open Court (Balwant Rai Bansal)
on 9th September, 2013 ACMMII/ PHC/ New Delhi
CC No. 1/99
FI Vs. Anil Goel Etc. Page 25 of 25
CC No. 1/99
DA Vs. Anil Goel Etc.
09.09.2013
Present: Sh. Masood Ahmad, Ld. SPP for complainant.
Proceedings qua accused no. 1 have been abated.
Accused no. 2 with counsel Sh. R.K. Sharma.
Accused no. 3 and AR of Accused no. 4 are present with counsel Sh. M.L. Alawadhi.
Accused no. 5 has already been discharged.
Accused no. 6 & AR of accused no. 7 are present with counsel Sh. M.K. Gupta.
Vide my separate Judgment of even date dictated and announced in the open court, all the contesting accused stand acquitted of the charges leveled against them.
Previous Bail Bond / Surety Bond of accused stands cancelled. Surety stands discharged. Endorsement on the documents of the previous surety, if any, be cancelled.
Accused are directed to furnish fresh bail bonds in compliance of Section 437A Cr.P.C. Accused have furnished B/B & S/B in the sum of Rs. 15,000/ each. Same are accepted.
File be consigned to Record Room.
(Balwant Rai Bansal) ACMMII/PHC/ND/09.09.2013 CC No. 1/99 FI Vs. Anil Goel Etc. Page 26 of 25