Delhi District Court
Delhi Administration / Food Inspector vs Vipender Kumar on 24 October, 2016
IN THE COURT OF SH. ASHU GARG,
Addl. Chief Metropolitan Magistrate - II (New Delhi),
Patiala House Courts, New Delhi
CC No. 2015/09
Unique Case ID No. 02403R0411492009 (new no.43458/2016)
Date of Institution: 04.12.2009
Date of reserving judgement: 24.10.2016
Date of pronouncement: 24.10.2016
In re:
Delhi Administration / Food Inspector
Department of PFA,
Govt. of NCT of Delhi
A-20, Lawrence Road Industrial Area,
Delhi-110035 ... Complainant
versus
Vipender Kumar
S/o. Late Sh.Raj Kumar
R/o. S-7, Shivaji Park,
West Punjabi Bagh,
New Delhi-110026. ... Accused
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 has violated the provisions of the PFA Act and Rules. The accused Vipender CC No. 2015/09 Page 1 of 12 Kumar is stated to be the vendor-cum-proprietor of M/s. Raj General Store, from where the food article, that is, 'ghee' was lifted for sampling.
2. As per the complaint, on 09.08.2007, the food officials consisting of Food Inspector (FI) R.K.Bhaskar and Field Assistant (FA) Om Prakash under the supervision of Local Health Authority (LHA)/SDM Sh. Pravesh Ranjan Jha reached along with their staff at the premises of M/s. Raj General Store at S-21, Shivaji Park, West Punjabi Bagh, New Delhi- 110026, where the accused 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 ghee from the vendor lying in sealed tetra packs of 1 litre each, bearing identical label declaration, to which he agreed. The sample of 3 such sealed tetra packs of 1 litre each 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 24.08.2007, the PA found the sample to be not conforming to the standards on the ground that the BR exceeded the prescribed maximum limit, that the Reichert value was less than the prescribed minimum limit and that the sample tested positive for BT Test. Upon receipt of report, the SDM/LHA ordered investigation which was carried out by FI. After completion of investigation, sanction under section 20 of the PFA Act was CC No. 2015/09 Page 2 of 12 obtained from the Director PFA. The complaint was then filed in the court on 04.12.2009 alleging violation of section 2(ia)(a),(b),(c) and (m) of PFA Act, violation of Rules 37 & 44 (c) of PFA Rules violation of Section 2(ix)
(b),(e) & (g) of PFA Act and also violation of Section 14A of PFA Act as punishable section 7/16(1A) and 16(1C) 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 was summoned vide order dated 04.12.2009. The accused appeared and filed an application under section 13(2) of PFA Act thereby exercising his 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 14.01.2010, opining the sample to be not conforming to the PFA Rules because the sample tested positive for rancidity and the free fatty acids were found more than the prescribed maximum limit.
4. Based on the report of the CFL, notice of accusation under section 251 CrPC was framed against the accused on 10.03.2010 for commission of the offence punishable under section 7/16(1)(a) PFA Act, being violation of section 2(ia)(a) and (m) of PFA Act, to which he pleaded not guilty and claimed trial.
5. At the trial, prosecution examined five witnesses in support of its case. PW-1 FI Arun Kumar, PW-4 FA Om Prakash and PW-5 Sh.
CC No. 2015/09 Page 3 of 12S.C.Bhardwaj (the then LHA/SDM) were part of the team that had visited the spot for sample proceedings. All these witnesses deposed about the proceedings conducted by them on 09.08.2007 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 'ghee' in 3 sealed tetra packs of one litre each, bearing identical label declaration, dividing it in three parts by converting one tetrapack as one counterpart, and separately fastening, sealing, marking the sample 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-4/A, PA Receipt Ex. PW-1/D and LHA receipt Ex. PW-1/E. PA report Ex. PW-1/F was received and investigation was started. Letter Ex. PW-1/G was written to the STO, Ward no. 56 and its reply sought. Further investigation was done by PW-3 FI R.K.Bhaskar. Letters Ex.PW-3/A to Ex. PW-3/A-4 were written to the accused and reply sought. Letter Ex. PW-3/B was written to M/s Shankar Lal Tara Chand and its reply sought . Letter Ex. PW-3/C was written to Sr. Marketing Officer (NR), Agmark Office, 4/20, Asaf Ali Road, Delhi regarding the Agmark status of the sample commodity and its reply is Ex. PW-3/C-1 was sought. Letters Ex. PW-3/D and Ex. PW-3/E were written to Deputy Agricultural Marketing Advisor, Chandigarh and Milk Food Ltd. and their replies sought. After completion of investigation, sanction Ex. PW-3/F was taken from the Director PFA and the complaint Ex. PW-3/G was filed in the court. A copy of PA report with intimation letter Ex. PW-2/A was sent to the accused through PW-2 Sh. Pravesh Ranjan Jha, the then SDM, through CC No. 2015/09 Page 4 of 12 post. These witnesses were duly cross-examined by Ld. Defence Counsel wherein they denied that the sampling method was not proper or that the accused had been falsely implicated.
6. Statement of the accused under section 313 CrPC was recorded on 04.03.2013 wherein he denied the allegations and pleaded innocence. Though he admitted the proceedings dated 09.08.2007, yet he questioned the reports on PA and CFL. He claimed that sample was not adulterated. He chose to lead evidence in defence.
7. The defence examined one Dr. O.P.Singhal as DW-1, who was a Principal Scientist and Head of the Dairy Chemistry Division, who opined that the two reports were at huge variation. He deposed that sample with PA was not of ghee but the sample with CFL was not adulterated, because the deficiencies in the same were on account of lapse of time which is a natural phenomenon in case of ghee.
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 beyond reasonable doubt, on the ground that the accused has not been able to rebut the findings of the CFL report dated 14.01.2010 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.
CC No. 2015/09 Page 5 of 129. 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 same 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 and have carefully perused the material available on record.
11. It is to be understood that the notice framed against the accused is for violation of section 2(ia)(a) 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. 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.
CC No. 2015/09 Page 6 of 1212. 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.11.02.15 of Appendix-B of the PFA Rules. Specific standards have been prescribed for this food product under this provision.
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 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 CC No. 2015/09 Page 7 of 12 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 all the counts. The BR Reading shown to be at 51.9 by PA was found to be 42.4 by CFL (within minimum and maximum prescribed limits); and the RM Value shown to be 7.01 by the PA was found to be 28.50 by CFL (more than minimum prescribed). The BT Test shown positive by the PA was found negative by the CFL. On the contrary, the sample was opined to be not conforming to the standards by the CFL only on the count of rancidity being positive and free fatty acids to be 3.64% which was more than the prescribed maximum limit of 3.0%. As such, the matter has to be determined only on the basis of report of CFL.
17. 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 CC No. 2015/09 Page 8 of 12 [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.
18. 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.
19. 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.
CC No. 2015/09 Page 9 of 1220. 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 BR reading, RM value and BT Test by the two analysts. The entire incriminating matter on the basis of which prosecution was launched, stood negated by CFL. All the three parameters on which PA had failed the sample, were reversed by the CFL.
21. As far as the ground on which CFL failed the sample is concerned, it is important to understand that ghee as a food article is prone to natural variations. 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 CFL report is so considered showing test for rancidity and increased free fatty acids, it can be said that the sample had undergone a natural change beyond the control of the accused. The deposition of DW-1 who is a food chemical expert, has remained unblemished trustworthy. The CFL had examined the sample from 11.01.2010 to 14.01.2010. Thus, it was so analysed after about 28 months when it was lifted from the possession of the accused. The nature of ghee as a food product is such that some changes are bound to happen if sample is kept for a long period. The effect of presence of moisture, temperature, external environment, internal heat etc. cannot be ignored on such article, particularly when no preservative as such was used in the sample. Such changes would be natural changes beyond human control. Rancidity and free fatty acids increase in sample of ghee with passage of time. Reliance can be placed on the judgement titled as National Diary Development Board v. State CC No. 2015/09 Page 10 of 12 of Haryana [1997(I) PFA Cases 95]. In the present case, such development of rancidity and increase in fatty acids cannot be ruled out after 28 months of lifting of the sample. Thus, there is possibility that such changes were natural changes. The burden would be on prosecution to rule out possibility of such natural changes before the accused can be convicted, particularly in view of such substantive variations in the two reports. The only conclusion would be that it underwent a natural change during the intervening period which was beyond human control. In any case, the accused would get a benefit of doubt.
22. Thus, the matter would not be covered under section 2(ia)(a) of PFA Act. There is no evidence to show that any particular nature, quality or substance of ghee was demanded by the FI which was not supplied to him to his prejudice, or that it was not of nature, quality or substance represented or purported to be so as to bring the case within section 2(ia)
(a) of PFA Act.
23. As far as section 2(ia)(m) is concerned, the accused is 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 and thus, no case would be made out against the accused for commission of offences punishable under section 7/16 of the PFA Act.
CC No. 2015/09 Page 11 of 1224. Having said so, the accused is acquitted of the charges. However, his bail bonds shall remain in force for the next six months in terms of section 437-A. CrPC.
25. File be consigned to record room.
Announced in the open court this 24th day of October 2016 ASHU GARG ACMM-II (New Delhi), PHC CC No. 2015/09 Page 12 of 12