Delhi District Court
16. In A Judgment Titled As Kanshi Nath vs . State, 2005(2) Fac on 11 August, 2010
IN THE COURT OF SHRI SANJEEV KUMAR MALHOTRA,
ADDITIONAL CHIEF METROPOLITAN MAGISTRATE-II,
NEWDELHI
C.C. N0. 86/98
Local Health Authority
Department of PFA
Govt of NCT of Delhi
Versus
2. M/s Sobhag Chand Shyam Lal
2740, Naya Bazar, Delhi-06
3. Shri Bajrang Lal Sharma
S/o Sh. Suraj Mal Sharma
Nominee of M/s Vijay Oil Mills, Alwar.
4. M/s Vijay Oil Mills,
Old Station Road, Alwar
Rajasthan.
JUDGMENT
Date of Institution : 31.8.98 Date of reserving judgment : 11.08.10 Dated of Pronouncement :11.08.10 U/S: 2 (ia) (a) (m) of PFA Act punishable U/s 16 (1) read with Section 7 of the PFA Act The final order : Acquitted C.C. N0. 86/98 1 Brief statement of the reasons for such decision-
1. The present complaint is filed by the Delhi Administration through LHA S.K. Nagpal against the above said accused persons alongwith accused No. 1 Chandu Lal S/o Debi Sahai, M/s Sobhag Chand Shyam Lal, 2740, Naya Bazar, Delhi-6 ( since expired and proceedings against him were abated ), 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 6.8.98 about 1.00 p.m., Food Inspector, Ashok Kumar Singh purchased a sample of Mustard Oil, a food article, for analysis from Sh. Chandu Lal S/o Debi Sahai at M/s Sobhag Chand Shyam Lal, 2740, Naya Bazar, Delhi-6, where the said food article was found stored for sale and accused Chandu Lal was found conducting the business of the said food article at the time of sampling. The sample consisted of approximate 375 gms of Mustard Oil (Agmark) taken out of originally sealed tin having declaration as Scooter Brand ( Ready for sale for human consumption ). The sample was taken by opining the tin from one corner after shaking the whole quantity of oil in the tin by pouring into a clean and dry jug and transferring the same into clean and dry glass bottles after properly mixing the contents by shaking the contents in all direction several times. The Food Inspector divided C.C. N0. 86/98 2 the sample then and there into three equal parts by putting them in three separate clean and dry bottles. Each bottle containing the sample was separately packed, fastened, marked and sealed according to the PFA Act and Rules. Vendor's signatures were obtained on the LHA slip and the wrapper of the sample bottles. Notice was given to Chandu Lal and the price of the sample was also given to him. The Panchnama was prepared at the spot. All the documents prepared by Sh. Ashok Kumar Singh, Food Inspector were signed by the accused Chandu Lal and the other witness Sh. Hukam Singh Meena, F.I. Before starting the sample proceedings efforts were made to join the pubic witnesses but none came forward. The sample was taken under supervision of LHA . One counter part of the sample was sent to the Public Analyst in intact condition and two counter parts were deposited with the LHA in intact condition. The Public Analyst analysed the sample on 13.8.98 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 polybromide test is positive.
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. S.K. Nagpal, LHA to file the present complaint.
C.C. N0. 86/98 34. The accused are allegedly to have violated the provisions of Section 2 (ia) (a) (m) & Rule 42 (zz), 44 ( c) of PFA Act punishable U/s 16(1) read with Section 7 of the PFA Act.
5. Summons of the case were served upon the accused persons and pursuant thereto they had appeared before the court. On 3.9.98, accused No.1 Chandu Lal moved an 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, Calcutta vide Certificate No. G.14-4/98 -331 dated 20.10.98, according to which, the sample of Mustard Oil is adulterated.
6. Notice under Section 251 Cr.P.C for contravention of provision of Section 2 (ia) (a) (m) of PFA Act punishable U/s 16 (1) read with Section 7 of the PFA Act was framed against the accused persons separately on 28.9.99 to which they pleaded not guilty.
7. In support of its case, complainant examined PW-1 Sh. S.K. Nagpal, LHA ; PW-2 Sh. Lakhmi Singh, Lab Assistant ; PW-3 F.I. A.K. Singh & PW-4 F.I. Hukam Singh.
8. Statements of accused persons were recorded on 04.03.10 under Section 313 Cr.P.C wherein they have controverted and rebutted the entire evidence against them while submitting that they are innocent.
C.C. N0. 86/98 4Accused preferred to lead evidence in their defence and examined Sh. S.N. Mahendroo as DW-1.
9. 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 misbranded 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.
10. 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.
11. 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 within the prescribed limits of variability but which does not render it injurious to health.
ARGUMENTS AND FINDINGS.
C.C. N0. 86/98 512.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 , the accused are liable to be convicted. On the other hand, Ld. Defence counsel on behalf of accused No. 2 argued that accused No.2 firm is entitled for benefit of warranty of Bill mark 'D-1' under Section 19 (2) of PFA Act. Ld. Defence counsel further argued that the sample was not representative as to why the reports of the two Analysts are divergent to a great extent.
Benefit of Warranty u/S 19 (2) of PFA Act.
13.Section 19 (2) of PFA Act provides that a vendor shall not be deemed to have committed an offence pertaining to the sale of any adulterated of misbranded article of food, if he proves that he purchased the article of food from any manufacturer, distributor or dealer with a written warranty in the prescribed form and the article of food while in his possession was properly stored and that he sold it in the same state as he purchased.
14. Ld. Counsel for accused No. 2 vehemently argued that accused No.2 firm is entitled for benefit of warranty i.e Bill mark D-1 issued by accused No.4 company. PW-1 Sh. S.K. Nagpal, LHA confirmed in his cross-examination that the sample was taken from the sealed tin and C.C. N0. 86/98 6 label declaration was reproduced in Notice in form VI. He further confirmed that he was satisfied that the tin from which the sample was taken was not tempered with in any manner and that a Notice under Section 14A addressing to Vijay Oil Mills i.e Ex.PW1/D was prepared at the spot. PW-4 F.I. Hukam Singh also confirmed that the tin was in intact condition and there was no tempering in any manner. On perusal of Notice in form VI which was prepared by the Food Inspector at the spot, wherein it was mentioned by the vendor that he purchased the sealed tins from M/s Vijay Oil Mills, Old Station Road, Alwar, Rajasthan. I have perused the Bill mark 'D-1' which is in respect of sale of 15 tins of mustard oil 'Scooter Brand''. The fact that the sample commodity was supplied by Bill mark 'D-1' is not disputed by accused No. 4 Company during trial. Therefore, I am of the considered view that the accused No. 2 firm is entitled for benefit of warranty of Bill mark 'D-1' issued by accused No. 4 Company under Section 19 (2) of PFA Act.
Whether sample is representative:
15.Ld. SPP for the complainant has submitted that the sample is representative but the Ld. Counsel for the accused has submitted that the sample was not representative sample. Ld. Defence counsel further argued that as per the report of the Public Analyst, sample was found non-conforming to standard only as polybromide test was found 'positive' but in the second counterpart of same sample, polybromide test was found 'negative' by the Director, CFL. On the other hand, Ld. C.C. N0. 86/98 7 SPP argued that the accused challenged the report of Public Analyst after considering the same as erroneous and moved an application for getting analysed the second counterpart by the Director, CFL. Therefore, he cannot again rely upon the report of the Public Analyst and as such report of Public Analyst cannot be looked into for deciding whether the sample was representative or not.
16. In a judgment titled as Kanshi Nath Vs. State, 2005(2) FAC 219, Delhi High Court , it was held by Hon'ble Mr. Justice Badar Durrez Ahmed, as under;-
''............To this extent, the argument raised by Mr. Sharma that once the certificate of the Director, CFL is obtained, then that is final and conclusive and the Public Analyst's report cannot be looked into at all for any purpose whatsoever, is not quite tenable. If the variation in the two reports is substantial enough, then the Public Analyst's report can certainly be looked into to establish this variation so as to support the contention of the petitioner that the sample was not representative. As indicated above, the Director, CFL who was examined as CW-1 in cross-examination, has clearly stated that if the content of common salt as quantified by the two experts would have a variation of more than- Y.3% then the samples would not be representative. This is an opinion of an expert and one has to go by it. In the facts of the present case, we find that the variation, as indicated above, is more than-Y.3%. Therefore, on the facts of the present case, it can be said that the variation is beyond C.C. N0. 86/98 8 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. ''
17. In view of above judgment of the Hon'ble Delhi High Court, I find no force in the contention of the Ld. SPP that the report of the Public Analyst and the Director, CFL cannot be looked into to ascertain whether the sample was representative or not. In the present case, as per report of the Public Analyst dated 13.8.98 wherein the opinion given by the Public Analyst, Delhi was that the sample does not conform to the standards and the result of the Public Analyst was as follows:-
B.R at 40 Deg. C. : 60.5
Iodine value : 111.60
Saponification value : 172.58
Acid value : 0.90
Polybromide Test : Positive
B.T.T ( Acetic Acid Method ) : 27 Deg. C.
18. The second counterpart of the same sample was analysed by the Director, Central Food Laboratory, Calcutta on dated 20.10.98 , the result of analysis of second counterpart of the sample commodity is as under :
B.R at 40 Deg. C. : 59.8
C.C. N0. 86/98 9
Iodine value : 116.7
Saponification value : 190.3
Acid value : 1.35
Polybromide Test : Negative
B.T.T ( Acetic Acid Method ) : 26 Deg. C.
19. The two analytic reports of the Public Analyst and the Director, CFL in respect of the counterpart of the same sample commodity are divergent to a great extent. One counterpart of the sample commodity shows polybromide test 'positive' and other parameters as per standards of mustard oil, while another counterpart of the same sample when examined by the Director, CFL shows polybromide test 'negative' but other parameters such as Iodine Value, Saponification Value more than the prescribed standards. No explanation has come on record on behalf of the complainant in respect of divergent reports of two Analysts in respect of counterpart of same sample. DW-1 Sh.S.N. Mahendroo, Retd. Chief Chemist, Regional Agmark Laboratories, Govt of India, deposed that if a representative sample of mustard oil is analysed by two Analysts, the analytic results should be concorded. Poly Bromide Test is modified test of Hexa Bromide to identify the linside oil. DW-1 further deposed that as per report of the PA, Polybromide test was found 'Positive' and report of the Director, CFL , same was found 'Negative'. The differences in B.R. Reading is 0.7 and it should not be more than 0.1. The differences between saponification value of C.C. N0. 86/98 10 two reports is about 17.72 Deg. C and in iodine value is 5.10 which is indicative of the fact that the sample was not representative or two different samples. These variations are not acceptable in our analytic domain. The testimony of DW-1 appears to be reliable and trustworthy and there is no reason to disbelieve the same. Thereby relying upon Kanshi Nath versus State (supra), I am of the considered view that the sample was not representative as to why divergent reports have been given by two Analysts.
20.In view of the above discussion and reasons, I am of the considered opinion that a representative sample was not taken by the Food Inspector and the complainant has failed to prove its case against the accused persons. In result, complaint stands dismissed and all the accused are acquitted. Their previous bail bonds furnished at the time of appearance stand cancelled. Earlier Sureties discharged. Bail bonds as per Section 437A Cr.P.C are furnished and accepted which shall remain in force for a period of six months. File be consigned to the record room.
Announced in the open court. ( S.K. MALHOTRA )
Dated: 11.08.2010 ACMM-II/NEW DELHI.
C.C. N0. 86/98 11