Delhi District Court
Fi vs . Sunil Jain Page 1 Of 16 on 24 June, 2013
IN THE COURT OF SHRI BALWANT RAI BANSAL
ADDITIONAL CHIEF METROPOLITAN MAGISTRATEII,
PATIALA HOUSE COURTS, NEW DELHI
C.C. No. 129/04
Food Inspector
Department of PFA
Govt. of NCT of Delhi
A20, Lawrence Road, Indl. Area, Delhi - 35
................. Complainant
Versus
Sh. Sunil Jain S/o Sh. Dhanna Ram Jain
M/s Shivam Store,
Shop No. 3, Gali Arjun Mandir Wali,
Hyder Pur, Delhi 52
..................VendorcumProprietor
COMPLAINT U/S 16 OF THE PREVENTION OF FOOD
ADULTERATION ACT, 1954
Serial number of the case : 129/04
Date of the commission of the offence : 16.01.2004
Date of filing of the complaint : 30.06.2004
Name of the Complainant, if any : Shri S.B. Sharma, Food Inspector
CC No. 129/04
FI Vs. Sunil Jain Page 1 of 16
Offence complained of or proved : For violation of provision of
Section 2 (ia) (a) (b) (c) (h) (j) (l)
of PFA Act and for violation of
Rule 23 r/w Rule 28 & 29 of PFA
Rules 1955, punishable U/s 16 (1)
(a) and 16 (1A) r/w S. 7 of PFA
Act 1954.
Plea of the accused : Pleaded not guilty
Final order : Acquitted
Arguments heard on : 22.06.2013
Judgment announced on : 24.06.2013
J U D G M E N T
1. The present complaint has been filed on 30.06.2004 by the Delhi Administration through FI Sh. S.B. Sharma against the accused. It is stated in the complaint that on 16.01.2004 at about 4.00 PM, FI Sh. S.B. Sharma purchased a sample of 'Mustard Oil', a food article for analysis from accused Sunil Jain S/o Sh. Dhanna Ram Jain of M/s Shivam Store, Shop No. 3, Gali Arjun Mandir Wali, Hyder Pur, Delhi 52, where the said food article was found stored for sale and where accused was found conducting the business of the said food article at the time of sampling. The sample consisted of approximately 750 gms of 'Mustard Oil' taken from an open tin having no label declaration. The sample was taken under the supervision/direction of Shri Bansh Raj, SDM/LHA after proper mixing with the help of clean and dry measure by rotating it in all possible directions in the tin itself. The Food Inspector divided the sample then and there into three equal parts by putting them in three separate clean and dry CC No. 129/04 FI Vs. Sunil Jain Page 2 of 16 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 in Form VI was given to him and price of sample was also paid vide Vendor's Receipt dated 16.01.2004. Panchnama was also prepared at the spot. All these documents prepared by FI Sh. S.B. Sharma were signed by accused Sunil Jain, the vendor and the other witness namely Sh. J.S. Bisht, FA. It is stated that before taking the sample, efforts were made to get the public witnesses to join the proceedings, but none came forward and as such Sh. J.S. Bisht, FA joined as witness.
2. It is further stated that one counterpart of the sample bearing LHA code No. 61/LHA/7418 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 because B.R. Saponification value and unsaponification matter exceed the prescribed maximum limit of 60.5, 177 & 1.2% respectively and it is also coloured with unpermitted synthetic colouring matter and has an admixture of rice bran oil.
3. It is further stated that vendor was selling 'Mustard Oil' in unpacked condition which is banned in Delhi vide notification No. F 5 (25)/98/PFA/Enf.5034 dated 27.08.1998 issued by Food (Health) Authority in pursuance of provisions of Clause (iv) of Section 7 of PFA Act, 1954. It is also revealed that Sunil Jain S/o Sh. Dhanna Ram was the vendorcum CC No. 129/04 FI Vs. Sunil Jain Page 3 of 16 Proprietor of M/s Shivan Store at the time of sampling and he is incharge of and responsible for day to day conduct of the business of the said shop. Thereafter, 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 accused for violation of provisions of Section 2 (ia) (a) (b) (c) (h) (j) (l) & (m) of PFA Act, violation of provision of Rule 23 r/w/ Rule 28 & 29 of PFA Rules 1955 and for violation of law enumerated in Gazetted Notification dated 27.08.1998, which is punishable U/s 16 (1) (a) and 16 (1A) r/w Section 7 of the PFA Act 1954.
4. The accused was summoned vide order dated 30.06.2004. The accused appeared and moved an application U/s 13 (2) of the 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, Pune for analysis. Director, CFL on analysing the second counterpart of the sample in question opined vide his Certificate dated 26.05.2006 that "sample does not conform to the standards of Mustard (Sarson ka Tel) Oil as per PFA Rules 1955".
5. The prosecution towards precharge evidence examined Sh. S.B. Sharma, FI who conducted the sample proceedings as PW1 and precharge evidence was closed vide order dated 13.05.2009.
6. Charge for violation of provisions of Section 2 (ia) (a) (b) (c)
(h) (j) (l) of PFA Act, violation of provision of Rule 23 r/w/ Rule 28 & 29 CC No. 129/04 FI Vs. Sunil Jain Page 4 of 16 of PFA Rules 1955 and for violation of law enumerated in Gazetted Notification dated 27.08.1998, was framed against accused vide order dated 01.09.2009 to which he pleaded not guilty and claimed trial.
7. Thereafter, in order to prove its case, in post charge evidence, the prosecution examined three witnesses including Shri S.B. Sharma, FI as PW1, Shri Bansh Raj , the then SDM/LHA as PW2 and Shri J.S. Bisht as PW3 and PE was closed vide order dated 16.08.2010.
8. Statement of accused U/s 313 Cr.P.C. was recorded on 02.12.2010 wherein he claimed himself to be innocent and opted to lead evidence in his defence. However, accused did not lead any evidence in his defence and DE was closed vide order dated 06.06.2011.
9. I have heard the Ld. Counsel for the parties and perused the record carefully.
10. Ld. Counsel for accused has argued that a representative sample was not taken and it was not properly homogenized and that is why there are variations in the report of Public Analyst and Director, Central Food Laboratory (CFL) which are on the higher side and, therefore, accused is liable to be given benefit of doubt. He further argued that Director, CFL has not given his report within a month from receiving the sample as required U/s 13 (2B) of PFA Act and, therefore no reliance can be placed upon the report of Director, CFL. In support of this contention, the Ld. Counsel for accused has relied upon various judgments reported in Darshan Lal Vs. State of Punjab1982 (I) FAC 290, Syed Salim Ahmad CC No. 129/04 FI Vs. Sunil Jain Page 5 of 16 Vs. State of U.P. 1996 (II) FAC 229 and Motilal Aggarwal Vs. Delhi Administration 1988 (II) FAC 329.
11. On the contrary, Ld. SPP for complainant argued that as per report of Director, CFL the sample was found not conforming to the standards of Mustard Oil and the report of Director, CFL being conclusive and supersedes the report of the PA, therefore, the accused can not be given the benefit on account of variations in report of two experts.
12. All the PWs have deposed as per the averments made in the complaint. PW1 FI Sh. S.B. Sharma who conducted the sample proceedings has deposed in his examinationinchief that on 16.01.2004, he with FA J.S. Bisht under the supervision and direction of Sh. Bansh Raj, SDM/LHA visited the premises of M/s Shivam Store, Shop No. 3, Gali Arjun mandir Wali, Haiderpur, Delhi, where accused Sunil Jain was found conducting the business of food articles in the shop including 'Mustard Oil loose'. He further deposed that he disclosed his identity and intention for taking the sample of 'mustard oil loose', which was placed in an open tin bearing no label declaration, for analysis to which accused agreed. He further deposed at about 4.00 PM, he purchased 750 gms of Mustard Oil Loose after mixing thoroughly in the tin itself by rotating with the clean and dry measure in all possible directions on payment of Rs. 39/ vide vendor's receipt Ex. PW1/A and thereafter he divided the sample into three equal parts by putting it in three separate clean and dry sample bottles and each sample bottle containing the sample was separately packed, fastened, CC No. 129/04 FI Vs. Sunil Jain Page 6 of 16 marked and sealed according to PFA Act and Rules. He further deposed that notice in Form VI Ex. PW1/B was prepared and a copy of same was given to accused and Panchnama Ex. PW1/C was also prepared at the spot and all these documents were read over and explained to accused who after understanding the same signed the same.
13. PW1 during his deposition has also placed on record the receipt of deposition of sample counterparts with PA and LHA as Ex. PW1/D & Ex. PW1/E respectively, PA report as Ex. PW1/F, letter sent to the accused as Ex. PW1/G, its reply as Ex. PW1/G1, letter sent to STO, Ward No. 67 as Ex. PW1/H, copy of Gazette Notification as Ex. PW1/I, sanction given by Director, PFA for prosecution against the accused as Ex. PW1/J, complaint as Ex. PW1/K, intimation letter as Ex. PW1/L and photocopy of postal registration receipt as Ex. PW1/M.
14. PW2 Sh. Bansh Raj, the then SDM/LHA under whose direction and supervision, the sample proceedings were conducted has corroborated the version of PW1 and has deposed on the similar lines as deposed by PW1 in his examinationinchief.
15. PW3 Sh. J.S. Bisht who accompanied the Food Inspector and was made a witness in the sample proceedings has also more or less deposed on the similar lines as deposed by PW1 in his examinationin chief.
16. All the PWs in their crossexamination stated that there were three measure lying with the vendor at the time of sample and the capacity CC No. 129/04 FI Vs. Sunil Jain Page 7 of 16 of measure were 1 liter, 500 ml and 200 ml and only one measure of 1 liter was used for mixing and taking the sample. They further stated that sample bottles were already clean and dry and the same were not made again dry and clean at the spot. They denied the suggestion that some other oil was already lying in the sample bottles and the container before it were used.
17. The accused in his statement U/s 313 Cr.P.C. has not disputed the fact that on 16.01.2004 at about 4.00 PM, he was found conducting the business of food articles including 'Mustard Oil' at his shop at M/s Shivan Store, Shop No. 3, Gali Arjun Mandir Wali, Haidarpur, Delhii and a sample of 'Mustard Oil' was lifted by the FI Sh. S.B. Sharma for analysis from him. It is also not in dispute that sample of 'Mustard Oil' was sent to the Public Analyst for analysis and on analysis the sample was found not conforming to standard because B.R., Saponification value and unsaponification matter exceeded the prescribed maximum limit of 60.5, 177 & 1.2% respectively and it was also found coloured with unpermitted synthetic colourign matter and had an admixture of rice bran oil. The report of Public Analyst has been proved on record as Ex. PW1/F.
18. The accused exercised his right u/s 13 (2) of the PFA Act and consequently second counterpart of the sample selected by the accused was sent to the Central Food Laboratory (CFL), Pune for analyzing the sample and the report thereof in the form of Certificate of the Director, CFL, Pune dated was received, which shows that sample commodity failed on the ground that B.R., Saponification value and unsaponification matter CC No. 129/04 FI Vs. Sunil Jain Page 8 of 16 exceeded the prescribed maximum limit of 60.5, 177 & 1.2% respectively and also non permitted synthetic oil soluble colour was detected.
19. The defence of the accused from the aforesaid cross examination of PWs and in his statement U/s 313 Cr.P.C is that sample was not taken in a proper manner by the Food Inspector and that is why there is huge variations between report of Public Analyst (PA) and Director, Central Food Laboratory (CFL).
20. It is evident from PA's Report that the sample was found not conforming to standard as BR i.e. Butyro Refractometer reading, Saponification value and Unsaponification matter exceeded the prescribed maximum limit and also unpermitted synthetic colouring matter was detected. Similar view has been taken by the Director, CFL vide his report/certificate dated 26.05.2006. However, a perusal of reports of both the experts shows that most of the test results are highly divergent to each other. The results of Public Analyst vide his report dated 09.02.2004 Ex. PW1/F are as under: Quality Characteristics Result Prescribed Standard
1. Butyro Refractomerter 61.2 58 60.5 reading at 40 Deg C
2. Refractive Index at 40 Deg C Not required 1.46461.4646
3. Saponification value 184.12 168 177
4. Iodine value 104.01 96 112 CC No. 129/04 FI Vs. Sunil Jain Page 9 of 16
5. Baudoun Test Negative Negative
6. Colour Positive Nil (OilSoluble colour present)
7. Test for Caster Oil Negative Negative
8. Test of Cotton seed Negative Negative
9. Test for polybromide Negative Negative
10. Test for Mineral Negative Negative
11. Test for rice bran oil Positive Negative
12. Unsaponifiable matter 1.76% Not more than 1.2 % by weight
13. Acid value 1.09 Not more than 6.0
14. Bellier Test (Turbidity temperature Not clear 23 - 27.5 Acetic acid method
15. Test for argemone oil Negative Negative
16. Test for Hydrocyanic acid Negative Negative
17. Moisture Not required The results of Director CFL vide his report dated 26.05.2006 are as under: CC No. 129/04 FI Vs. Sunil Jain Page 10 of 16 Quality Characteristics Results Prescribed Standard
1. Butyro Refractomerter 61.9 58 60.5 reading at 40 Deg C
2. Saponification Value 189.46 168 - 177
3. Iodine Value 99.0 96 to 112
4. Unsaponifiable matter 2.97% Not more than 1.2% by weight
5. Acid value 3.85 Not more than 6.0
6. Bellier Test (Turbidity
7. temperature - Acetic Could not be 23 deg C to acid method) done 27.5 deg C
8. Specific Tests Test for Rancidity Negative Shall be negative Castor Oil Mineral Oil Hexabromide All tests All tests shall be Hydracyanic acid negative negative Argemone oil Baudouin Halphen Positive (8 red shall be positive units on lovibond with not more than scale in 1 cm scale) 10 red units on lovibond scale in 1 cm scale Colour non permitted Synthetic synthetic oil oil soluble colour soluble colour detected shall be absent CC No. 129/04 FI Vs. Sunil Jain Page 11 of 16
21. From the aforesaid reports of both the experts, it is revealed that both the reports are at variance to each other. The PA vide his report found BR value as 61.2, whereas Director, CFL found the same as 61.9 against the maximum prescribed limit of 60.5. Further, as per report of Public Analyst, Sapnoification value was 184.12 and Unsaponifiable matter was to the tune of 1.76%, while as per Director, CFL, Saponification value was 189.46 against the prescribed maximum limit of 177 and Unsaponification matter was found to the tune of 2.97% against the prescribed limit of 1.2%. Similarly, Public Analyst vide his report Ex. PW1/F gave the Iodine Value to the tune of 104.01 and Acid value to the tune of 1.09, whereas as per Director, CFL, Iodine value was 99 and Acid Value was 3.85 which again show variations in the report of two experts. As such, reports of both the experts are at higher variance to each other.
22. In State Vs. Rama Rattan Malhotra 2012 (2) FAC 398 after relying upon various judgments titled as Kanshi Nath Vs. State 2005(2) FAC 219 and State Vs. Mahender Kumar & Ors, 2008 (1) FAC 177 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." Similarly, it has been held by the Hon'ble Delhi High Court in M/s Raja Ram Seth & Sons & Anr. Vs. Delhi Administration, 2012 (2) FAC 523 that, "If the variations in the report of PA and CFL is more than 0.3 % which is stated to be CC No. 129/04 FI Vs. Sunil Jain Page 12 of 16 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 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.
23. In view of law laid down in the aforesaid authorities, since there are variations in the report of Public Analyst and Director, Central Food Laboratory which is beyond the permissible limit of .3 %, I find considerable force in the contention of the accused that sample taken by the Food Inspector was not representative one and, therefore, benefit of doubt is liable to be given to the accused.
24. It is also contended by the accused that no reliance can be placed upon the report of Director, CFL by which the sample was found not conforming to the standards of 'Mustard Oil' as the Director, CFL has not analyzed the sample within stipulated period of time.
25. In the present case, the Director, Central Food Laboratory (CFL) has analyzed the sample of Mustard Oil vide certificate dated 26.05.2006. Perusal of same would reveal that the sample was received by the Director, CFL, Pune on 20.07.2004 for the purpose of analysis and same was analyzed in the Lab from 24.05.2006 to 26.05.2006. Meaning CC No. 129/04 FI Vs. Sunil Jain Page 13 of 16 thereby, the sample remained in the Lab for about more than 1 ½ years and by that period the same might have deteriorated. The Director, CFL was required to analyze the sample and send his report to the court within thirty days from the receipt of the sample as per Section 13(2B) of PFA Act 1954. Section 13(2B) reads as under:
"On receipt of the part or parts of the sample from the Local (Health) Authority under subsection (2A), the court shall first ascertain that the mark and seal or fastening as provided in clause (b) of subsection (1) of section 11 are intact and the signature or thumb impression, as the case may be, is not tampered with, and despatch the part or, as the case may be, one of the parts of the sample under its own seal to the Director of the Central Food Laboratory who shall thereupon send a certificate to the court in the prescribed form within one month from the date of receipt of the part of the sample specifying the result of the analysis.".
26. In a case titled as Motilal Aggarwal Vs. Delhi Administration 1988 (II) FAC 329, a sample of maida was lifted from the petitioner on 13.10.1978 and the PA after analysing the same gave its report by 20.10.1978 and the prosecution was launched on 17.01.1980. Further, the second counterpart of the sample was sent to Director CFL on 14.02.1980 and he after analyzing the sample gave his report by 13.05.1980 taking almost three months in analysing the sample. In this case, after referring the case law in Darshan Lal Vs. The State of Punjab (supra), it was held by the Hon'ble Delhi High Court that because CC No. 129/04 FI Vs. Sunil Jain Page 14 of 16 of unusual delay at the level of Director CFL in analyzing the sample had prejudiced the case of the petitioner and the charge was quashed.
27. In the present case also, as stated above there is huge delay in analyzing the sample by the Director, CFL in violation of Section 13 (2B) of PFA Act and no explanation has been put forth by the prosecution for the delay in analyzing the sample on the part of the Director, CFL. Therefore, the accused is entitled to take benefit of this violation in view of law laid down in the authority cited supra.
28. It is also to be noted that in the present case, the accused has also been prosecuted for violation of Gazette Notification dated 27.08.1998 issued by Food (Health) Authority in pursuance of provisions of Clause (iv) of Section 7 of the PFA Act, by which sale of Mustard Oil in loose form has been prohibited. However, in a case titled as Godawat Pan Masala Products I.P. Ltd. & Anr. Vs. Union of India & Ors, the Hon'ble Supreme Court has held that, "The power of banning an article of food or an article used as ingredient of food, on the ground that it is injurious to health, belongs appropriately to the Central Government to be exercised in accordance with the rules made under Section 23 of the Act, particularly, subsection (1A)(f) the State Food (Health) Authority has no power to prohibit the manufacture for sale, storage, sale or distribution of any article, whether used as an article or adjunct thereto or not used as food. Such a power can only arise as a result of wide policy decision and emanate from Parliamentary legislation or, at least, by exercise of the CC No. 129/04 FI Vs. Sunil Jain Page 15 of 16 powers by the Central Government by framing rules under Section 23 of the Act".
29. Relying on the aforesaid authority, it can very well be said that the power of banning an article of food or an article used as ingredient of food belongs appropriately to the Central Government and such a power can only arise as a result of wide policy decision and emanate from Parliamentary Legislation or at least by exercise of the powers by the Central Government.
30. In view of the law laid down by the Hon'ble Apex Court supra, the Notification issued by Director PFA vide Gazette Notification dated 27.08.1998 has no legal force and the accused can not be said to have violated the said Notification.
31. In view of above reasons and discussions, I am of the considered opinion that the prosecution has failed to prove its case against the accused beyond reasonable doubt, benefit of which must go in favour of accused. Accordingly, benefit of doubt is given to the accused and the accused is acquitted of the charges leveled against him.
File be consigned to Record Room.
Announced in the open Court (Balwant Rai Bansal)
on 24th June, 2013 ACMMII/ PHC/ New Delhi
CC No. 129/04
FI Vs. Sunil Jain Page 16 of 16
CC No.129/04
DA Vs. Sunil Jain
24.06.2013
Present: Sh. Masood Ahmad, Ld. SPP for complainant.
Accused with the counsel.
Vide my separate Judgment of even date dictated and announced in the open court, accused stands 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 is directed to furnish fresh bail bonds in compliance of Section 437A Cr.P.C. He has furnished B/B & S/B in the sum of Rs. 20,000/. Same are accepted.
File be consigned to Record Room.
(Balwant Rai Bansal) ACMMII/PHC/ND/24.06.2013 CC No. 129/04 FI Vs. Sunil Jain Page 17 of 16