Delhi District Court
Fi vs . Rakesh Gupta Page 1 Of 14 on 23 August, 2013
IN THE COURT OF SHRI BALWANT RAI BANSAL
ADDITIONAL CHIEF METROPOLITAN MAGISTRATEII,
PATIALA HOUSE COURTS, NEW DELHI
C.C. No. 79/98
Local Health Authority
Department of PFA
Govt. of Delhi.
...........................Complainant
Versus
Sh. Rakesh Gupta
S/o Sh. Musadi Lal
M/s Ram Niranjan Rakesh Kumar
Provision & General Merchant,
8, Jain Mandir Raja Bazar,
New Delhi1.
R/o 2/45, Hauz Khas, New Delhi.
........ VendorcumProprietor
COMPLAINT U/S 16 OF THE PREVENTION OF FOOD
ADULTERATION ACT, 1954
Serial number of the case : 79/98
Date of the commission of the offence : 12.08.1998
Date of filing of the complaint : 31.08.1998
Name of the Complainant, if any : Shri S.K. Nanda, LHA.
CC No.79/98
FI Vs. Rakesh Gupta Page 1 of 14
Offence complained of or proved : Violation of Section 2 (ia) (a) &
(I) of PFA Act 1954, punishable
U/s 16 (1A) r/w S. 7 of PFA Act
1954.
Plea of the accused : Pleaded not guilty
Final order : Acquitted.
Arguments heard on : 08.08.2013
Judgment announced on : 23.08.2013
J U D G M E N T
1. The present complaint has been filed on 31.08.1998 by LHA Sh. S.K. Nanda against accused Sh. Rakesh Gupta. It is stated in the complaint that on 12.08.1998 at about 3:40 PM, FI Sh. Rajesh Kumar purchased a sample of Mustard Oil, a food article for analysis from accused Rakesh Gupta, S/o Shri Musadi Lal, VendorcumProprietor of M/s Ram Niranjan Rakesh Kumar Provision & General Merchant, 8, Jain Mandir Raja Bazar, New Delhi1, where Mustard Oil was found stored for sale for human consumption, lying in an open tin, bearing no label or declaration. It is further stated in the complaint that FI Sh. Rajesh Kumar purchased 375 gms of Mustard Oil from the said tin. The sample was taken after proper mixing it with the help of a clean and dry measure, under the supervision and direction of Shri S.K. Nanda, SDM/LHA. Thereafter, the sample was divided into three equal parts by putting it in three clean and dry bottles and thereafter each bottle containing the sample was separately packed, fastened CC No.79/98 FI Vs. Rakesh Gupta Page 2 of 14 and sealed according to PFA Act and Rules. The signatures of vendor were obtained on LHA slip and the wrapper of the bottles containing the sample. Notice in Form VI was given to accused and price of sample was also paid to the accused. Panchnama was also prepared at the spot. All these documents prepared by FI Sh. Rajesh Kumar were signed by accused Sh. Rakesh Gupta, the vendor and the other witness namely Sh. Sanjeev Gupta, FI. It is stated that before taking the sample, efforts were made to get the public witnesses to join the sample 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 conditions were deposited with LHA. The Public Analyst analysed the sample and opined that "the sample does not conform to the standards laid down under item no. A.17.06 of Appendix 'B' of PFA Rules, 1955, because sample shows presence of Argemone Oil".
3. It is further stated in the complaint that during investigations accused Rakesh Gupta was found to be VendorcumProprietor of M/s Ram Niranjan Rakesh Kumar Provision & General Merchant,8, Jain Mandir Raja Bazar, New Delhi1 and he being the incharge of the said shop was responsible for the 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 for violation of provisions of Section 2 (ia) (a) (b)(c) CC No.79/98 FI Vs. Rakesh Gupta Page 3 of 14
(f)(h) & (I) of PFA Act, 1954, provision of Section 2(ix) (k) of PFA Act and Rule 32 of PFA Rules 1955; punishable U/s 16 (1) (1A) r/w S. 7 of the Act.
4. The accused was summoned vide order dated 31.08.1998.
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 CFL, Calcutta for analysis. The Director, CFL on analysing the second counterpart of the sample in question opined vide his Certificate dated 06.11.1998 that "the sample of Mustard Oil is adulterated".
5. Thereafter, one witness namely Shri S.K. Nanda, the then LHA as PW1 was examined in pre charge evidence and pre charge evidence was closed vide order dated 06.12.2000.
6. Thereafter, Charge for violation of provisions of Section 2 (ia)
(a) & (I) of PFA Act, 1954, punishable U/s 16 (1A) r/w S. 7 of the Act was framed upon the accused vide order dated 04.08.2008 to which the accused pleaded not guilty and claimed trial.
7. In post charge evidence, the prosecution examined two witnesses including Shri S.K. Nanda, the then LHA as PW1 and Shri Sanjeev Kumar Gupta, Food Inspector as PW2 and the PE was closed vide order dated 16.05.2009.
8. Statement of accused U/s 313 Cr.P.C. was recorded on CC No.79/98 FI Vs. Rakesh Gupta Page 4 of 14 04.08.2009 wherein accused claimed himself to be innocent and opted to lead evidence in his defence.
9. In defence the accused got examined three witnesses Dr. Dhir Singh, Director CFL, Ghaziabad, U.P as DW1, Dr. Ram Prashad, Jr. Analyst, Central Food Laboratory, Kolkata as DW2 and Dr. Geetanjali, Director PFA, Central Food Laboratory, Kolkata as DW3 and DE was finally closed vide order dated 02.02.2011.
10. I have heard the Ld. Counsel for the parties and perused the record carefully.
11. The Ld. Counsel for the accused has argued that no public witness has been joined by FI in sample proceedings which is in violation of Section 10 (7) of PFA Act. He has further argued that there are variations in the reports of PA & CFL, which shows that a representative sample was not taken by the FI and therefore, benefit of doubt is liable to be given to the accused. He has further argued that both the experts have not mentioned the quantity of Argemone Oil, present in the sample commodity and as per Modi's Medical Jurisprudence & Toxicology at least 1% of Argemone Oil is necessary to cause epidemic dropsy and therefore, without quantifying the percentage of Argemone Oil in the sample commodity it can not be said that the mustard oil was injurious to health. He has further argued that there is violation of Rule 23(1) (hh) of PFA Act as PA has not disclosed the procedure adopted in arriving at a conclusion that Argemone Oil was present in the sample commodity. He has further argued that the CC No.79/98 FI Vs. Rakesh Gupta Page 5 of 14 standard that the Argemone Oil shall not be present in the Mustard Oil came in force on 11.12.2001 whereas the sample in question was lifted on 12.08.1998. In support of its case, he has placed reliance on various case law titled as Kanshi Nath Vs. State 2005(2) FAC 219, M/s Raja Ram Seth & Sons & Anr. Vs. Delhi Administration, 2012 (2) FAC 52 and Khushi Ram Vs. The State & Anr. Crl. Rev. No. 252 of 1978, Pepsico India Holdings Pvt. Ltd. Vs. Food Inspector, Criminal Appeal No. 836 of 2010 by the Hon'ble Apex Court, State Vs. Mahender Kumar & Anr., 2008 (1) JCC 582 of the Hon'ble High Court of Delhi.
12. On the other hand, the Ld. SPP for complainant has argued that there is no dent in the case of prosecution even if no independent public witness has been joined in sample proceedings and PWs have given explanation for not joining any independent public witness in sample proceedings. He has further argued that sample is adulterated because it was containing Argemone Oil which is injurious to health and even if no standard was prescribed for Mustard Oil at the time of lifting the sample then too the accused is liable to be convicted. He has further argued that the accused has exercised his right under section 13(2) of PFA Act and got analysed the second counterpart of the sample from Central Food Laboratory, Calcutta and the report of Director, CFL being conclusive and supersedes the report of Public Analyst, no benefit can be given to accused on the ground of variations in the reports of PA & CFL. He vehemently argued that the prosecution has proved its case beyond reasonable doubt CC No.79/98 FI Vs. Rakesh Gupta Page 6 of 14 and therefore, the accused is liable to be convicted.
13. Both the prosecution witnesses have deposed more or less as per the averments made in the complaint and substantiated the averments.
14. PW1 Sh. S.K. Nanda, the then LHA, under whom supervision the sample proceedings were conducted had deposed in his examination in chief that on 12.08.1998, under his supervision and directions a PFA team consisting of two FIs viz. Rajesh Kumar and Sanjiv Gupta had visited the premises of M/s Ram Niranjan Rakesh Kumar, Provision & General Merchant, 8, Jain Mandir Raja Bazar, New Delhi01, where accused Rakesh Guputa was found present and conducting the business of the said shop having stored various food articles including Mustard Oil for sale for human consumption. He has further deposed that he purchased 375 gms of Mustard Oil, taken from an open tin, bearing no label or declaration on payment of Rs. 20/ vide vendor's receipt Ex. PW1/A. He has further deposed that sample was taken after proper homogenizing the Mustard Oil with the help of a measure by rotating it in all possible directions in several times and then he divided the same into three equal parts by putting them in three clean and dry glass bottles. He further deposed that notice was prepared at the spot vide Ex. PW 1/B and a copy of the same was given to accused. Panchnama was also prepared at the spot which is Ex. PW 1/C. He further deposed that all the documents Ex. PW 1/A to Ex. PW 1/C prepared on the spot were read over and explained to the accused who after understanding the same signed the same. He has further deposed that two CC No.79/98 FI Vs. Rakesh Gupta Page 7 of 14 counterparts of the sample in a sealed packet were deposited in intact condition with him on 13.08.1998 vide receipt Ex. PW 1/D and one counterpart of the sample was deposited in intact condition with PA vide PA receipt Ex. PW 1/E and PA's report Ex. PW 1/F was received, according to which the sample did not conform to the standards because sample showed presence of Argemone Oil.
15. PW2 FI Sanjeev Kumar Gupta has also deposed on similar lines as deposed by PW1 in his examination in chief.
16. In the statement U/s 313 Cr.P.C, the accused has taken a defence that no efforts were made to join public witnesses in sample proceedings. He has further taken a defence that PA's report is based on nonrepresentative sample and that PA has not mentioned the quantity of the Argemone Oil.
17. First of all, I shall deal with the contention of Ld. Counsel for accused that there is violation of Section 10 (7) of PFA Act as the FI did not join any independent public witness in sample proceedings. As per Section 10(7) of PFA Act, at the time of sample proceedings, the FI is required to join public witnesses in sample proceedings. PW1 has stated in the cross examination that no public person accompanied them when they left their office. He also admitted that it was in his knowledge that they were going for lifting the sample. Similarly, PW2 in his crossexamination has categorically stated that he did not go outside the shop alongwith the FI Rajsh Kumar to request the public witnesses. This statement categorically CC No.79/98 FI Vs. Rakesh Gupta Page 8 of 14 shows that no sincere and genuine efforts have been made by the FI to join any independent public witness in sample proceedings. In as much as, FI did not call the public witnesses from the outside of the shop to join the sample proceedings and therefore, the same is in violation of Section 10(7) of PFA Act 1954.
18. It is not in dispute that on 12.08.1998, a sample of Mustard Oil was lifted from the premises of the accused and the same on being analyzed by the PA was found not conforming to the standards because sample showed presence of Argemone Oil. It is also not in dispute that the accused got analyzed the second counterpart of the sample from CFL, Calcutta, who after analyzing the same also found the sample to be adulterated because of presence of Argemone Oil 'positive'.
19. Now the contention of the accused is that a representative sample was not taken by the FI and that is why there are variations in the report of PA & CFL. A perusal of the report of PA and CFL would reveal that there are variations in the reports of both the experts. As per PA's opinion, Iodine Value is 111.56 whereas, the Director CFL has found the same to be 105.4. Further, in PA's Report, Saponification value is to the tune of 170.99 whereas, the Director CFL adjudged the same to be 176.5. Furthermore, Acid Value is to the tune of 0.94 in PA's Report whereas, the Director CFL has adjudged the same to be 1.82. Likewise, the PA has found B.T.T / Bellier Test to the tune of 27.2 Deg. C. whereas, the Director CFL has found the same to the tune of 29.8 Deg. C. Thus, there are CC No.79/98 FI Vs. Rakesh Gupta Page 9 of 14 variations to some extent which are more than 0.3%.
20. In this regard, PW1 could not comment that if the representative sample is taken, all the counterparts will give identical/similar result. He further could not comment that if the two reports are not identical then either the sample procedure or testing procedure is faulty.
21. In support of its contention that the sample was not representative one and therefore there are variations in both the reports of experts, the accused has also examined expert from CFL as DW2 Dr. Ram Prashad, Jr. Analyst, Central Food Laboratory who was deputed by the Director CFL, Kolkata and has filed the report Ex. DW 2/A. He stated in his evidence that 0.5% to 1% variations of data between two reports is permissible. He further stated that difference of 5 units in saponification value should not be in a representative sample and same is his reply in respect of other values. He further stated that if the Argemone Oil contamination is below 50 PPM in Mustard Oil, same can not be detected from TLC Method. In crossexamination he stated that Argemone Oil is injurious to health and it can cause a dropsy and even can cause the death of human being. He further stated that if Argemone Oil is found by two analysts in counterpart of same sample, it shows that the sample is representative.
22. This testimony of DW2 shows that if difference between two reports is of 5 units in Saponificatioin value it can not be said to be a CC No.79/98 FI Vs. Rakesh Gupta Page 10 of 14 representative sample. Perusal of the report of PA would reveal that there is variations of more than 5 units in Saponification value and other parameters.
23. DW 3 Dr. Geetanjali is the Director PFA, Kolkata and she stated that the time between both the reports is about 3 months and the variation in the saponification value, iodine value and acid value in both the reports is possible in case, if the two sample counterparts of the same sample are got analysed from two different laboratories and two different experts. Voluntarily she stated that the same has to be in a definite range. She further stated the difference shown in the two reports is quite possible and is within the definite range. She further stated that at the time when the sample counterparts in question were got analysed, the difference / variation in two Reports, the variation range of upto 5% would be reckoned as possible and reasonable range. As per this witness, variations range upto 5% is permissible but this is in contrast to the evidence of another expert DW1. Furthermore, as per the Hon'ble High Court of Delhi in M/s Raja Ram Seth & Sons & Anr. Vs. Delhi Administration, 2012 (2) FAC 523 it has been held 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 liable to be given to the accused.". Similarly in CC No.79/98 FI Vs. Rakesh Gupta Page 11 of 14 Kanshi Nath Vs. State 2005(2) FAC 219 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 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".
24. In the present case also there are variations more than .3% in both the reports of experts which shows that a representative sample was not taken and in view of law laid down in the authorities as above, the sample in question can not be said to be a representative sample and the benefit of the same must go in favour of accused.
25. The next contention of the accused is that both the experts have not disclosed the quantity of Argemone Oil found present in the respective sample counterparts and merely because of presence of Argemone Oil in the sample commodity, the sample can not be said to be injurious to health. In this regard, a reference was made to Modi's Medical Jurisprudence & Toxicology literature where it is mentioned that for causing epidemic dropsy at least 1% of argemone oil is necessary. Here, it is not the case of CC No.79/98 FI Vs. Rakesh Gupta Page 12 of 14 the prosecution that from the use of sample commodity any casualty has happened. Therefore, in the absence of any finding of both the experts on quantity / percentage of Argemone Oil in the sample commodity, the possibility of argemone oil less than 1% in the sample commodity can not be ruled out and it can not be said that the sample was unfit for human consumption.
26. In Khushi Ram Vs. The State & Anr. Crl. Rev. No. 252 of 1978, a sample of Bari Elaichi was lifted from the shop of the accused / petitioner. The second counterpart of the sample on being got analyzed from the CFL, The Director CFL found the mineral oil 'positive'. But the Director CFL nowhere mentioned the quantity, weight or proportion by way of percentage of the mineral oil in the sample of Bari Elaichi so that it could be presumed to be injurious to health, nor any evidence whatsoever was brought on record to show that its presence in the sample could affect injuriously the nature, substance or quality of the sample and, therefore, on these facts and circumstances, the revision petition was allowed and the petitioner / accused was acquitted.
27. The Ld. Counsel for the accused during the course of arguments also argued that the PA's report on the basis of which the present case was initiated against the accused is silent about the procedure being adopted in arriving at a conclusion of argemone oil and thus the present case is a case of faulty examination of alleged sample. In this regard, it is to noted that experts acknowledge various tests for deduction of argemone CC No.79/98 FI Vs. Rakesh Gupta Page 13 of 14 oil but in this case PA's report do not find mention any of the method to deduct the presence of argemone oil. Therefore, the accused can not be held responsible for the lacuna left by the prosecution and deserves an acquittal.
28. The next contention of the accused is that the presence of Argemone Oil should be absent / negative, this standard came in force on 11.12.2001 and the same was incorporated in the PFA Act, 1954 vide GSR 895 (E), dated 11.12.2001. The sample in this case was taken on 12.08.1998 i.e. before this amendment came into force. Therefore, the percentage of Argemone Oil to determine whether the sample commodity was injurious to health was essential.
29. In view of aforesaid discussion and observation, I am of the considered view that the prosecution has not been able to prove its case beyond reasonable doubt and therefore, the benefit of the same is liable to be given to the accused. Accordingly, 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 23rd August, 2013 ACMMII/ PHC/ New Delhi
CC No.79/98
FI Vs. Rakesh Gupta Page 14 of 14
CC No. 79/98
DA Vs. Rakesh Gupta
23.08.2013
Present: Sh. Masood Ahmad, Ld. SPP for complainant.
Accused with the counsel Sh. Puneet Mittal.
Vide my separate Judgment of even date dictated and announced in the open court, accused stands acquitted of the charges leveled against him. Previous Bail Bond / Surety Bond 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. Accused has furnished B/B & S/B in the sum of Rs. 15,000/. The same is accepted.
File be consigned to Record Room.
(Balwant Rai Bansal) ACMMII/PHC/ND/23.08.2013 CC No.79/98 FI Vs. Rakesh Gupta Page 15 of 14