Delhi District Court
19.In An Authority Reported As State Of ... vs . Bhagirath , 1999 on 3 August, 2010
IN THE COURT OF SHRI SANJEEV KUMAR MALHOTRA,
ADDITIONAL CHIEF METROPOLITAN MAGISTRATE-II,
NEWDELHI
C.C. N0. 85/93
Food Inspector
Department of PFA
Govt of NCT of Delhi
A-20, Lawrence Road,
Indl. Area, Delhi-35
Versus
Shiv Shankar S/o Late Sh. Hargu Lal
M/s Kumar Dairy, 6/33, Moti Nagar,
New Delhi.
R/o A-221, Sudershan Park, New Delhi.
JUDGMENT
Date of Institution : 20.04.93 Date of reserving judgment : 09.07.10 Date of Pronouncement : 03.08.10 U/S: Section 2 (ia) (a) & (m) punishable U/s 16(1) read with Section 7 of the PFA Act The final order : Convicted Brief statement of the reasons for such decision-
1. The present complaint is filed by the Delhi Administration through C.C. N0. 85/93 1 LHA Sh. R.K Ahuja 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)
2. The complainant has submitted that on 31.12.92 at about 7:30 p.m., Food Inspector, Surender Kumar Sharma purchased a sample of 'Paneer', a food article for analysis from Sh. Shiv Shankar S/o Late Sh. Hargu Lal at M/s Kumar Dairy, 6/33, Moti Nagar, New Delhi, where it was found stored for for sale. Sh. Shiv Shankar was found conducting the business of the shop at the time of sampling. The sample consisted of a brick of 750 gms of Paneer which was taken from an open Refrigerator kept at the shop. The Paneer brick was cut into small pieces with the help of clean and dry knife in a clean and dry aluminium tray and mixed with the help of clean and dry steel spoon. The Food Inspector divided the sample then and there into three equal parts and put them in separate clean and dry bottles and 20 drops of formalin were added to each bottle. 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 paper slip and wrapper of the sample bottles. Notice was given to Sh. Shiv Shankar and the price of sample was also given to him. Panchnama too was prepared at the spot. All the documents prepared by FI Surender Kumar Sharma were signed by Sh. Shiv Shankar and the other witness Sh. Rajesh Kumar , F.I. Before starting sample proceedings efforts were C.C. N0. 85/93 2 made to join pubic witnesses but none came forward. The sample was taken under the supervision of LHA. That one counter part of the sample was also sent to the Public Analyst in intact condition and two counter parts were deposited with the LHA in intact conditions. Public Analyst analysed the sample on 06.01.93 and opined that the sample does not conform to standard because milk fat of dry matter is less than the prescribed minimum limit of 50%.
3. 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 accorded consent under Section 20 of PFA Act for institution of the case and authorised Sh. R.K. Ahuja, LHA to file the present complaint.
4. The accused is allegedly to have violated the provisions of Section 2 (ia)(a) & (m) punishable U/s 16(1) 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 6.5.93 accused Shiv Shankar moved the 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 C.C. N0. 85/93 3 No. 185/PFA/93 dated 10.06.93 and opined that the sample does not conform to the standards laid down for paneer under the provisions of PFA Act, 1954 and Rules thereof (a) milk fat content falls below the minimum specified limit of 50.0% on dry weight basis.
6. Notice under Section 251 Cr.P.C for contravention of provisions of Section 2 (ia) (a) & (m) punishable U/s 16(1) read with Section 7 of the PFA Act was framed against the accused separately on 02.09.93 to which he pleaded not guilty.
7. In support of its case, complainant examined PW-1 Sh. R.K. Ahuja, LHA; PW-2 F.I. Rajesh Kumar & PW-3 F.I. S.K. Sharma.
8. Statement of accused was recorded under Section 313 Cr.P.C on 20.04.98 wherein he had controverted and rebutted the entire evidence against him while submitting that he innocent and examined Dr. B.N. Mathur as DW-1.
9. It is pertinent to mention over here that present complaint was decided by Ld. Predecessor of this court vide judgment dated 02.04.2004 thereby accused was given benefit of doubt and was acquitted of the charge.
C.C. N0. 85/93 410.Aggrieved by the judgment of Ld. Predecessor, complainant filed Criminal Appeal No. 436/05 before Hon'ble High Court and matter was remanded back to this court by Hon'ble High Court vide judgment dated 22 March, 2010 while issuing directions in Para No.21 and I quote .... ''For the reasons given in the preceding paragraphs, the impugned order is, hereby set aside and the trial court is directed to summon and examine the Director, Central Food Laboratory as a court witness and obtain his opinion, on the question as to whether a sample of paneer, to which formalin has been added in the quantity that was used in this case, will lose its fat contents with the passage of time and if so, what would be the percentage of decrease in the fat content, between 31st December, 1992 when the sample was taken and the date on which the sample was examined by the Central Food Laboratory. While examining the Director, Central Food Laboratory, it will also be open to the trial court to obtain his opinion as to whether the method of taking sample adopted in this case, which comprised cutting the brick of paneer into smallest pieces with a clean and dry knife and then mixing them with the help of a clean and dry spoon, followed by rotating them in all possible directions, was a proper method of taking sample, for the purpose of analysis, or not.
C.C. N0. 85/93 5Para 22. The parties are directed to appear before the trial court at 10.00 a.m on 22nd of March, 2010. The trial court will examine Director, Central Food Laboratory within two months of the parties appearing before it and will decide the matter afresh within in one month thereafter after hearing both the parties. Both the parties will be given opportunity to cross examine the Director of Central Food Laboratory, Trial Court record be sent back, with a copy of this judgment, for compliance.''
11. In compliance of direction of the Hon'ble High Court, Dr. Dhir Singh, Director, Central Food Laboratory , was examined as a court witness on 31.05.10. Hon'ble High Court vide order dated 03.06.10, extended the period of two months for compliance of the judgment dated 09.03.10.
12.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.
13.As per section 2 (ia)(m) of PFA Act, an article of food is said to be adulterated if the quality or purity of the article falls below the prescribed standard or its constituents are present in quantities not C.C. N0. 85/93 6 within the prescribed limits of variability but which does not render it injurious to health.
14. 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.
15.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 is liable to be convicted. Ld. Defence counsel, on the other hand, has vehemently argued that the testimony of Dr. B.N. Mathur , who conducted the research in milk and milk products , is more reliable than the testimony of court witness Dr. Dhir Singh, Director, Central Food Laboratory, as he is only a Chemist and not conducted any research. Ld. Defence counsel further argued that proper procedure of lifting the sample of paneer, is to draw chucks from portions of the brick with the help of cheese drawer and a representative sample C.C. N0. 85/93 7 was not drawn by Food Inspector. Ld. Defence counsel further argued that sanction to prosecute was not duly proved, and drawn my attention in respect of the authorities reported as 1988 (II) PFA Cases 219 ; 1975 PFA Cases 186 ; 2008 (1) FAC 191; 1972 PFA Cases 292.
Whether the procedure of lifting the sample of paneer as adopted by the Food Inspector was also correct method.
16.Ld. Defence counsel vehemently argued that Food Inspector adopted the wrong procedure of lifting the sample of paneer and the correct procedure was to draw chucks from portions of the brick with the help of cheese drawer or paneer should have been meshed. Similar arguments were addressed by the Ld. Defence counsel before the Hon'ble High Court and as there was no expert opinion in respect of method of taking the sample, Hon'ble High Court vide judgment dated March 9, 2010 directing this court to examine Director, Central Food Laboratory as court witness and also left open for this court to obtain the opinion of the Director, CFL as to whether the method of taking the sample adopted in this case which comprised the cutting the brick of the paneer into smallest pieces with a clean and dry knife and then mixing them with the help of a clean and dry spoon followed by rotating them in all possible directions, was a proper method for taking the sample, for the purpose of analysis, or not.
C.C. N0. 85/93 817.Court witness Dr. Dhir Singh, Director, Central Food Laboratory , deposed that he is Ph.D in Chemistry and there is no specific method as such given in the PFA Act and Rules for lifting the sample of paneer and the method that cutting of the paneer into smallest pieces with a clean and dry knife and then mixing with the help of a clean and dry spoon, followed by rotating in all possible directions, is a proper method for lifting the sample of paneer. The testimony of Dr. Dhir Singh in respect of procedure for lifting the sample of paneer remained unrebutted, although, he was cross- examined by the Ld. Defence counsel at a length. Even a suggestion was not given to the Director, CFL by the Ld. Defence counsel that procedure of lifting the sample as adopted by the Food Inspector in the present case , was not a proper method or that the procedure of drawing chucks from the brick of paneer with the help of cheese drawer is only proper procedure. Therefore, I am of the considered opinion that the procedure as adopted by the Food Inspector in the present case for taking the sample of paneer i.e to cut the paneer into smallest pieces with the help of a clean and dry knife and in the clean and dry aluminium tray and then followed by properly mixing with the help of clean and dry spoon by rotating in all possible directions, was also a proper method for lifting the sample of paneer.
Whether formalin can preserve the sample of paneer properly and for what period.
C.C. N0. 85/93 918.The main contention of the Ld. Defence counsel was that formalin cannot preserve the sample of paneer for about six months, and paneer looses its fat contents with the passage of time and drawn my attention in respect of testimony of DW-1 Dr. B.N. Mathur, who relied upon the research of one Dr. K.B. Haridas to the effect that even after addition of formalin chemical changes started in paneer after six days. On the other hand, Ld. SPP for the complainant argued that formalin as provided in the PFA Act and Rules as a preservative for milk and milk products can preserve the paneer properly and if the sample is found fit for analysis by the Director, CFL as in the present case, it is indicative of the fact that the sample was properly preserved and fit for analysis, and drawn my attention in respect of the testimony of Dr. Dhir Singh, Director, CFL, who appeared as a court witness.
19.In an authority reported as State of Haryana Vs. Bhagirath , 1999 AIR ( SC) Page 2005 wherein it is held by Hon'ble Supreme Court as under :-
''The opinion given by a medical witness need not be the last word on the subject. Such opinion shall be tested by the court. If the opinion is bereft of logic or objectivity, court is not obliged to go by that opinion. After all opinion is what is formed in the mind of a person regarding a fact C.C. N0. 85/93 10 situation. If one doctor forms one opinion and another doctor forms a different opinion on the same facts it is open to the judge to adopt the view which is more objective or probable.
Similarly, if the opinion given by one doctor is not consistent with probability the court has no liability to go by that opinion merely because it is said by the doctor. Of course, due weight must be given to opinions given by persons who are experts in the particular subject. ''
19. In the present case, there are opinions of two Experts before the court in respect of shelf life of paneer and in respect of capacity of preservative i.e formalin to preserve the sample of paneer and court has to adopt the view which is more objective or probable.
20.Rule 20 of PFA Rules provides that the preservative used in the case of sample of any milk, cream , dahi, khoya or khoya based and paneer based sweets shall be the liquid commonly known as formalin that is to say a liquid containing about 40% of formaldehyde in acqueous solution.
21. It is not in dispute that the sample of 750 gms of paneer was lifted from accused and was divided into three equal parts and in each counterpart, 20 drops of formalin were added as also mentioned on C.C. N0. 85/93 11 Notice in form VI Ex.PW1/B which was prepared at the spot. The Hon'ble High Court while remanding the matter to this court also directed this court to examine the Director, CFL as a court witness and to obtain his opinion on the question as to whether a sample of paneer to which formalin has been added in the quantity that was used in this case will lose its fat contents with the passage of time and if so, what would be the percentage of decrease in the fat contents between 31.12.1992 when the sample was taken and the date on which the sample was examined by the Central Food Laboratory. In this respect, accused examined Dr. B.N. Mathur, Joint Director, Research , N.D.R.I. Karnal, who relied upon the research of one Dr. K.B. Haridas in respect of shelf life of paneer to which formalin had been added as a preservative, and deposed that it was found in the research by Dr. K.B. Haridas that even after addition of formalin, chemical changes started in paneer after six days and it was found to become mouldy and decrease in fat and total nytrozen content and increased in water soluble nytrozen, tyrosiene and acidity. The changes were more specific after about a month. Fat reduction is one of the changes which takes place besides other chemical changes in the chemical parameters of fat.
On the other hand, Dr. Dhir Singh , Director, Central Food Laboratory, who was examined as a court witness, deposed that if the sample of paneer is preserved with the help of formalin, there would be no chance for decreasing the fat contents and the sample would remain fit for analysis without any decrease of contents i.e C.C. N0. 85/93 12 milk fat and other constituents for a period of two or more years. He further deposed that he stated this fact on the basis of his experience as he is working for more than last 33 years on a higher different capacities in various laboratories i.e C.F.L. Calcutta, C.F.L. Ghaziabad. Dr. Dhir Singh, Director, CFL , further deposed that if a sample of paneer is properly preserved with formalin, there is no chance that its fat contents would decrease 16% in six months. After adding formalin in the sample of paneer, it is not required that sample should be kept under refrigeration, and sample can remain fit for analysis at room temperature. The purpose of addition formalin in the sample of paneer or milk products is to preserve them at room temperature without loss of their contents for analysis. He further deposed that if the sample of 750 gms of paneer is taken and it is divided into three counterparts then 20 drops of formalin in each counterpart would be sufficient amount of preservative as also given in the PFA Rules. In his cross-examination by Ld. Defence counsel, court witness Dr. Dhir Singh denied the suggestion that formalin only controls bectaria and has no effect on controlling enzymes present in the milk products. To a specific question as put by the Ld. Defence counsel that formalin reacts the protein parts of the paneer and formalin available for proper preservation of paneer will reduce with the passage of time after about six months and available formalin will not be sufficient for preservation and accurate analysis, the witness denied the suggestion and clarified that if the paneer is fit for analysis, it means there was no loss of formalin in the passage of C.C. N0. 85/93 13 time i.e about six months. He further confirmed in his cross- examination that the shelf life of paneer after adding preservative i.e formalin same can be preserved fit for analysis for a period of two years or more on the basis of his personal experience as well as on the basis of literature. The testimony of Director, Central Food Laboratory appears to be more reliable due to two reasons, firstly, had it been as per research of Dr. K.B. Haridas that chemical changes started taking place after six days in paneer after adding formalin, and as per defence of the Ld. Defence counsel that formalin only controls Bacteria, it has no effect on controlling enzymes present in the milk products i.e milk fat, then formalin cannot be termed as preservative and there was no purpose for providing formalin as preservative by PFA Rules. Secondly, the defence witness, DW-1 only relied upon the research of other scientist , who was not subjected to cross-examination and his research was in the year 1976 and there is no material on record in respect of authenticity of his research by high authorities in this regard. On the other hand, the court witness i.e Director, CFL had 33 years experience in the different capacities in various laboratories and deposed on the basis of his personal experience , and is also a member of the Central Committee for Food Standards, as constituted under Section 3 of PFA Act. Therefore, relying upon the testimony of Dr. Dhir Singh, Director, Central Food Laboratory, I am of the considered opinion that formalin can preserve the sample of paneer properly and if sample is found fit for analysis, there C.C. N0. 85/93 14 cannot be loss of 16% of the fat in sample of paneer within six months which was properly taken and preserved.
Whether the sanction to prosecute was duly proved .
22.Ld. Defence counsel vehemently argued that sanction to prosecute the accused was not duly proved as the Sanctioning Authority did not appear before the court. On the other hand, Ld. SPP for the complainant argued that this issue has already been decided by the Hon'ble High Court, therefore, same cannot be raised again before this court. Similar arguments were raised by the Ld. Defence counsel before the Hon'ble High Court and it was held in the Para No. 15 of the Judgment dated 09.03.2010 of Hon'ble High Court and I quote , '' it was contended by the learned counsel for the respondent that the consent has not been duly proved by the complainant as neither the Consenting Authority has been produced in the witness box nor does PW-1 say that he was conversant with the signature of Consenting Authority, Shri M.P. Tyagi. I find that the consent Ex. PW-1/F was exhibited in the deposition of PW-1 without any objection from the respondent. Had the respondent objected to the consent being exhibited in the depositing of PW-1 without his claiming that he was conversant with the signature of Shri M.P. Tyagi, the complainant could have produced either the Consenting Authority himself or some other person conversant with his signature to prove the signature on the consent Ex. PW-1/F . By C.C. N0. 85/93 15 not objecting to the consent being exhibited in the deposition of PW-1, the respondent is deemed to have dispensed with the requirement of proving the signature of Shri M.P. Tyagi either by summoning him or by producing a person who would be conversant with his signature. Hence, no benefit, at this stage, accrues to the respondent on this ground. ''
23. PW-1 Sh. R.K. Ahuja, LHA proved the consent as Ex. PW1/F on the basis of which he filed the complaint and the same was not objected by the Ld. Defence counsel when PW-1 was in witness box. Therefore, I am of the considered opinion that sanction was duly proved by the testimony of PW-1 Sh. R.K. Ahuja, LHA.
Opinion of Director, CFL
24.On 6.5.93 accused Shiv Shankar moved the 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. 185/PFA/93 dated 10.06.93 and opined that the sample does not conform to the standards laid down for paneer under the provisions of PFA Act, 1954 and Rules thereof (a) milk fat content falls below the minimum specified limit of 50.0% on dry weight basis.
C.C. N0. 85/93 1625. 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.
26. In an authority reported as 1991 (1) FAC 8 titled as ' Calcutta Municipal Corporation Vs. Pawan Kumar Saraf & Others , it was held by the Hon'ble Supreme Court as under :-
'' 14. If a fact is declared by a statute as final and conclusive, its impact is crucial because no party can then give evidence for the purpose of disproving that fact. This is the import of Section 4 of the Evidence Act which defines three kinds of presumptions among which the last is '' conclusive proof''. '' When one fact is declared by this Act to be conclusive proof of another the court shall, on proof of the one fact regard the other as proved and shall not allow evidence to be given for the purpose of disproving it.''
15.Thus the legal impact of a Certificate of the Director of Central Food Laboratory is three-fold. 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. ''
27. In the present case, Director, CFL vide his report Ex. PX mentioned that sample was received in a condition fit for analysis C.C. N0. 85/93 17 and as per analysis gave his opinion that sample does not conform to standard laid down for paneer as the milk fat content falls below the minimum specified limit of 50% on dry weight basis. Dr. Dhir Singh, Director, Central Food Laboratory also deposed that if the sample is decomposed then it can be known visually and by odour and if it is fit for analysis then only it is analysed and even during analysis, we can know that sample is fit for analysis or had become unfit for analysis. The facts of authority reported as Chanan Lal Vs State , 1972 PFA Cases are different as in that case the sample was received by the Director, CFL , Calcutta in decomposed condition and the major portion of the sample had leaked out. Dr. Dhir Singh, Director, CFL further deposed that if a representative sample is analysed by two Analysts, the analytic data should be almost similar. He further clarified that there is a technical term of measurement uncertainty and there is separate measurement uncertainty for every parameter, and there are different method for estimation of milk fat in different laboratories. In this respect, the defence witness i.e DW-1 Dr. B.M. Mathur deposed that if two Analysts examined the sample of same paneer with the time gap of about five months then even if the latter has found it fit for analysis still the analysis which is nearer to the date of sampling is to be preferred. In the present case, the Public Analyst examined the sample of paneer on sixth day from the date of sampling and even he found sample non-conforming to standard as the milk fat on dry matter basis was found 37.56% i.e below approximate 14% from the C.C. N0. 85/93 18 prescribed standards, and if a representative sample is taken with proper method and preserved properly as in the present case, there is no reason how the milk fat will go 14% below the prescribed standards on the sixth day from lifting the sample. Therefore, I am of the considered opinion that the sample of paneer as lifted by F.I. S.K. Sharma from the premises of the accused on 31.12.92 was not of the nature as represented to be and was not conforming to the standard of paneer as given it item No. A.11.02.05 of Appendix 'B' of PFA Rules, 1955. Therefore, I held the accused guilty for violation of Section 2 (ia) (a ) (m) punishable under Section 16 (1) read with Section 7 of PFA Act and stands convicted thereunder.
Announced in the open court. ( S.K. MALHOTRA )
Dated: 03.08.10 ACMM-II/NEW DELHI.
C.C. N0. 85/93 19