Delhi District Court
Gauri Shankar Gupta vs The State on 6 February, 2012
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IN THE COURT OF MS. NEENA BANSAL KRISHNA :
ADDITIONAL SESSIONS JUDGE-01 : NEW DELHI
In re :
CA No. 06/12
1. Gauri Shankar Gupta
S/o Shri R. K. Gupta,
C/o M/s Durga Stores,
2510, Basement Hudson Lane,
Kingsway Camp, Delhi.
2. Hitesh Gupta
S/o Sh. Gauri Shankar Gupta,
C/o M/s Durga Stores,
2510, Basement Hudson Lane,
Kingsway Camp, Delhi. ..... Appellants
versus
The State
[Delhi Administration] ..... Respondent
Date of institution of the appeal : 07.01.2012
Date of reserving judgment/order : 31.01.2012
Date of judgment / order : 06.02.2012
JUDGEMENT :
1. This is an appeal against the conviction of the appellants vide judgment dated 14.11.2011 u/s 7/16 Prevention of Food Adulteration Act (hereinafter referred to as "PFA Act") and order on sentence dated 07.12.2011 vide which the appellants have been sentenced for one year RI and a fine of Rs.10,000/- each, in default of payment of fine, SI for fifteen days each.
2. The facts in brief are that on 18.09.2004 a sample CA No. 06/12 Page No. 1 of 11 -2- of "Dal Masoor (Malka Dal)" was lifted by Sh. S. B. Sharma, Food Inspector, from the premises of Gauri Shankar Gupta, the vendor, at M/s Durga Stores, 2510, Basement, Hudson Lane, Kingsway Camp, Delhi-09, which consisted of three packets of 500 gms each of original sealed packet of "Dal Masoor (Malka Dal)" and were divided into three equal parts by putting each packet as one counterpart and were sealed as per PFA Rules. One counterpart of the sample was sent to Public Analyst, who vide his report dated 29.09.2004 reported that the sample was adulterated because it was coloured with synthetic colouring matter i.e. Sunset yellow food colour and it was also found to be mis-branded because of violation of PFA Rules.
3. A criminal complaint was accordingly filed against the accused in which the charge was framed against the accused persons for the violation of Rule 32(a)(c)(d)(e)(f) and
(i) and Rule 36(2)(a) and provisions of sub Clause (a)(j) &(m) of Section 2(ia) and Section 2(ix)(k) of PFA Act, 1954 and further for violation of the provision of Rule 23 read with Rule 28 & 29 of PFA Rules 1955 and Rule 32(a)(c)(d)(e)(f) and (i) and Rule 36(2)(a) of PFA Rules 1955, which is punishable u/s 16(1A) and 16(1) of PFA Act 1954 read with Section 7 of the PFA Act.
4. Three prosecution witnesses namely PW1 Sh. Bansh Raj, the then SDM/LHA, PW2 Food Inspector Sh. S. B. Sharma and PW3 Sh. J. S. Bisht, FA, were examined.
5. The accused Gauri Shankar Gupta in his statement u/s 313 Cre.PC had taken the defence that the sample was not CA No. 06/12 Page No. 2 of 11 -3- taken in a proper way and he had not applied the colour on "Dal Masoor (Malka Dal)" and the sample had been taken by the Food Inspector forcibly. The accused Hitesh Gupta in his statement u/s 313 Cr.PC took the defence that he was not present at the shop and the sample was taken by the Food Inspector from his father forcibly.
6. The accused Gauri Shankar Gupta appeared as DW1 and had deposed that on 18.09.2004 he was forced to make three packets of 500 gms each of "Dal Masoor (Malka Dal)" and they were seized by the Food Inspector.
7. Ld. Trial Court after considering the evidence, convicted and sentenced the accused persons as mentioned above.
8. Aggrieved, the present appeal has been filed. Ld. counsel on behalf of appellants has argued that the "Dal Masoor (Malka Dal)" sample was found to be adulterated with synthetic colour i.e. Sunset yellow colour. First and foremost, the said colour is permitted to be used in certain food items and is not per se injurious. It has been held in the case of "Khushi Ram" and in the case of "Dwarka Dass" that unless the adulterant found in the food sample was injurious to health, it cannot be said that the item was adulterated. Also, the Dal is always washed before cooking and the colour which was water soluble would definitely get dissolved before cooking. The prosecution has failed to show that the adulterant was injurious to health and thus, appellants are entitled to acquitted. It is further argued that merely because the right u/s CA No. 06/12 Page No. 3 of 11 -4- 13(2) has not been exercised by accused in itself is not a conclusive proof of its culpability. The burden continues to lie on the prosecution to show that the food article sold by the appellant is an adulterated item.
9. It is further argued that while taking the samples and sealing them, the requirement of Rule 17 and 18 have not been complied with. Also, this was the first offence of the appellants and they were entitled to be let off with the warning as per Rule 32 but instead of being let off after warning, they have been implicated in this case. It is thus, argued that they are entitled to be acquitted.
10. Ld. Special PP had argued that the sample had been found to be adulterated with sunset yellow food colour, which is a prohibited colour for "Dal Masoor (Malka Dal)". Its mere presence is sufficient to show the sample of "Dal Masoor (Malka Dal)" were adulterated. It was further argued that the very fact that an application u/s 13 (2) of the Act was filed on behalf of the appellants but was withdrawn, shows that they did not question the findings of the report of the Public Analyst. It also shows that they admitted their guilt of selling adulterated "Dal Masoor (Malka Dal)".
11. It is, therefore, argued that the appellants have been rightly convicted and the present appeal is without merit.
12. I have heard the arguments and perused the record. My observations are as under :
13. To appreciate the arguments addressed on behalf of the appellants, it is pertinent to reproduce the relevant part CA No. 06/12 Page No. 4 of 11 -5- of the report of the Public Analyst, dated 29.09.2004 :
14. The analysis was started on 22.09.2004 and was completed on 29.09.2004.
1. Physical Appearance : Dark Pink coloured sample of Dal Masoor.
2. Artificial colouring matter : Positive (Sunset Yellow)-
Chromatographer Method
3. Moisture : 11.89%
4. Extraneous Matter : Nil
5. Other Edible grains : 1.03%
6. Damaged grains : Nil
7. Weevilled grains : 0.01%
8. Uric acid content : Nil
9. Mycotoxin : Not detected
10. Insect : Nil Opinion : The sample is adulterated because it is coloured with synthetic colouring matter viz. Sunset yellow fcf. The sample is also misbranded because there is violation of Rule-32 (a)(c)(d)(e)(f) and (i) and Rule 36 (2)(a) of PFA Act.
15. The Public Analyst, to find that there was a synthetic colour present in the sample, had used the chromatography method.
16. The first argument of the ld. counsel for the appellants is that the test applied by the Public Analyst for detecting the adulteration was the chromatography test. The Public Analyst report Ex.PW1/F has given a finding that the CA No. 06/12 Page No. 5 of 11 -6- sample of "Rai Whole" was found to be positive for oil soluble synthetic colour which was not permitted and the methodology used was the chromatography method. The Public Analyst has not been examined by the prosecution to explain why this test was applied to come to the conclusion that the colour detected was not permissible. Again this point was considered in the case of "Maya Ram v. State of Punjab, 1987 (II) Prevention of Food Adulteration Cases 320", wherein it was observed as under :
"The ordinary dictionary meaning of chromatography is that it is a method of separating substances in a mixture which depend on selective absorption, partition between non-mixing solvents, etc., and which present the substances as a chromatogram, such as a series of visible bands in a vertical tube. And the word 'Chromatic' is meant to pertain to, or consisting of, colours. Thus, paper chromatography would reveal that there is present food colouring on coal tar dye. But on that test to conclude that it was permitted or non-permitted is rather begging the question. No other data is available on the Public Analyst's report as to how he had come to the conclusion that the coal tar dye was non-permitted. It has already been noticed that rule 28permits use of coal tar dye. The Public Analyst should have excluded in this opinion the possibility of all the five permitted coal tar dyes pertaining to red colour. As is plain, no such effort was made. Thus, the report of the Public Analyst cannot be taken as the gospel CA No. 06/12 Page No. 6 of 11 -7- truth outweigh normal judicial balancing. If the courts were to blindly follow the report of the Public Analyst, then to my mind it would be in the nature of abdication of judicial functions. It is to be borne in mind that the Public Analyst is just an expert and his opinion evidence should normally be clear and unambiguous so that it is understandable, if not to all, at least a sizeable section of the people who are non-experts."
17. The reliability of this paper chromatography test was considered in the case of "Charanjeet Ahuja v. Senior Health Inspector, Northern Railways, Ambala Cantt, 1999 (2) RCR (Criminal) Punjab & Haryana", wherein the paper chromatography test had been applied for testing sample of "Chilly Powder", it was held that the said test was not a sure test. Reliance was placed upon the similar observations made by the Division Bench of Punjab & Haryana High Court in the case of "State of Haryana v. Ratan Lal (1993) XX CR.L.T. 79", wherein also it was held that this test was not sufficient to conclude whether permitted or non- permitted coal tar dye had been used.
18. The question here is whether the colour as observed in PA report was an artificial colour or could it be a natural colour. The test applied could have only detected presence of colour but not whether the colour was inherent or an added one. To distinguish between the two, further chemical tests would have to be performed. The PA report CA No. 06/12 Page No. 7 of 11 -8- does not show what test was conducted to know whether the whole soluble colour present in the sample was natural or added one. In these circumstances, the sample could not be conclusively stated to be adulterated.
19. The second argument of the appellants is that mere presence of "sunset yellow" colour, would not make the sample adulterated.
20. Admittedly, the sample article "Dal Masoor (Malka Dal)" collected by the Food Inspector, as per the certificate of Public Analyst was found confirming to all the standards as prescribed in the Rule A.18.06.09 except on account of presence of extraneous synthetic food colour which was identified as Sunset yellow. This food colour is one of the permitted food colour provided under Rule 28 and its use is permitted in food articles specified in Rule 29. Even though "Dal Masoor (Malka Dal)" split is not covered by food articles described under Rule 29, the question, which arises is whether the mere presence of this colour would render its nature, substance or quality as one not demanded by the buyer as well as to the prejudice of the buyer and it is to be further considered whether the presence of such colour would render it injurious for the buyer.
21. To appreciate the nature of adulterant present in the food article, it would be worthwhile to reproduce the relevant part of the definition of the "adulterated" as contained in sub-clause (a) and (b) of Section 2 (ia) of the Act, which reads as follows :
CA No. 06/12 Page No. 8 of 11 -9-"2(ia) "adulterated" - an article of food shall be deemed to be adulterated -
(a) 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;
(b) if the article contains any other substance which affects, or if the article is so processed as to affect, injuriously the nature, substance or quality thereof;"
22. In the present case, the relevant Section would be sub-clause (a) and sub-clause (b). This aspect was analyzed by Hon'ble Delhi High Court in the case of "Khushi Ram v.
The State and Anr., 1984 (II) FAC 256". In Khushi Ram's case sample was of "Bari Ilaichi" and the sample was held to be adulterated on account of presence of mineral oil as reported by the Public Analyst as the standard for "Bari Ilaichi" as provided at A.05.04.02 specified that article should be free from added colouring matter. It was observed that though the report of the Director, test for mineral oil was stated to be positive but it nowhere gave the quantity, weight or proportion by way of percentage of the mineral oil present in the sample "Bari Ilaichi". In the absence of quantity, weight and proportion, it was possible that the presence of mineral oil in the sample may be just negligible so as to cause no prejudice to the purchaser as contemplated in Section 2 (ia) (a) of the Act nor was there any evidence whatsoever to show that CA No. 06/12 Page No. 9 of 11
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the presence of mineral oil in the sample could affect injuriously the nature, substance or quality of the sample of "Bari Ilaichi" as contemplated in Section 2(ia) (b) of the Act. It was, therefore, held that in the absence of any evidence in regard to the prejudice or injurious affect of the presence of mineral oil on the sample, the petitioner was entitled to be exonerated.
23. The Khushi Ram's case was relied upon in recent judgment by Hon'ble Delhi High Court in the matter of "State v. Dwarka Dass, 2007 (1) FAC 229". It was a case in regard to the presence of mineral oil in the sample of "Kali Mirchi". After making a reference to the case of Khushi Ram and observing that there was no evidence to show the prejudice or the injury that could be caused to the purchaser on account of presence of mineral oil in "Kali Mirchi", the petitioner was acquitted.
24. The case of presence of Tartrazine (permitted coal tar dye) in sweet drops was considered in the case of "Shiv Narayan v. State of Haryana, 1996 (2) FAC 313 (Punjab & Haryana)" and it was held that mere presence of Tartrazine, which is a permitted colour for foods mentioned in Rule 29, cannot be said to be injurious to health as the use of prohibited colours, the petitioner was accordingly acquitted.
Similar matter was considered in "K.B. Devassi Kutti v. Food Inspector, Criminal Revision No. 742/2001 dated 05.12.2008", wherein the petitioner had been convicted for sample of de-husked split guine green daal, which was CA No. 06/12 Page No. 10 of 11
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reported to be not confirming to standard under the Act and Rules as cold tar colour Tartrazine was found to be present. The conviction was set aside.
25. The facts involved in the present case are similar to those discussed above. The Public Analyst's report merely gives the presence of colour Sunset yellow, which is not permissible for "Dal Masoor (Malka Dal)". However, Sunset yellow is a permitted colour for the category of foods specified in Rule 29, which shows that per se it is not a prohibited colour. For the food to be considered as adulterated, it has to be further shown that its presence was injurious or prejudicial to the purchaser. However, there is no weight, quantity or proportion of Sunset yellow specified in the collected sample from where the injurious effect of the presence of Sunset yellow could be inferred. It is possible that it may be present in negligible amount. The prosecution, therefore, has not been able to establish that the sample of "Dal Masoor (Malka Dal)" came within the definition of adulterated as provided u/s 2 (ia) of the Act.
26. The appeal is accordingly allowed. Conviction is hereby set aside and the appellants are acquitted.
27. Trial Court Record be sent back along with the copy of this order.
28. Appeal file be consigned to the Record Room. Announced in the open Court on 06th Day of February,2012.
(Neena Bansal Krishna) ASJ-01/PHC/New Delhi CA No. 06/12 Page No. 11 of 11