Delhi District Court
Fi vs . Hari Ram Etc. Page 1 Of 22 on 18 September, 2013
IN THE COURT OF SHRI BALWANT RAI BANSAL
ADDITIONAL CHIEF METROPOLITAN MAGISTRATEII,
PATIALA HOUSE COURTS, NEW DELHI
C.C. No. 07/2001
Food Inspector
Department of PFA
Govt. of NCT of Delhi
A20, Lawrence Road
Indl. Area, Delhi - 35
........ Complainant
Versus
1. Sh. Hari Ram S/o Sh. Shri Ram
M/s Kandhar Restaurant,
42, DDA Commercial Complex,
Rajinder Bhawan, Rajinder Place,
New Delhi8
........ VendorcumSupervisor
2. M/s Kandhar Restaurant,
42, DDA Commercial Complex,
Rajinder Bhawan, Rajinder Place,
New Delhi8
........ Firm
3. Sh. Ajit Singh Pahwa
M/s Kandhar Restaurant,
42, DDA Commercial Complex,
Rajinder Bhawan, Rajinder Place,
New Delhi8
........ Partner of Accused No. 2
CC No.07/01
FI Vs. Hari Ram Etc. Page 1 of 22
4. Sh. Tajinder Singh Pahwa
M/s Kandahr Restaurant,
42, DDA Commercial Complex,
Rajinder Bhawan, Rajinder Place,
New Delhi8
........ Partner of Accused No. 2
COMPLAINT U/S 16 OF THE PREVENTION OF FOOD
ADULTERATION ACT, 1954
Serial number of the case : 07/01
Date of the commission of the offence : 25.07.2000
Date of filing of the complaint : 30.01.2001
Name of the Complainant, if any : Sh. V.P.S. Chaudhary, Food
Inspector
Offence complained of or proved : For violation of Section 2 (ia) (a) &
(m) of PFA Act 1954; punishable
U/s 16 (1) (a) r/w Section 7 of PFA
Act
Plea of the accused : Pleaded not guilty
Final order : Acquitted
Arguments heard on : 17.08.2013
Judgment announced on : 18.09.2013
J U D G M E N T
1. The present complaint has been filed on 30.01.2001 by the Delhi Administration through FI Sh. V.P.S. Chaudhary against the accused persons. It is stated in the complaint that on 25.07.2000 at about 7.20 PM, FI Sh. V.P.S. Chaudhary purchased a sample of Paneer, a food article for analysis from Sh. Hari Ram S/o Sh. Shri Ram at M/s Kandhar Restaurant, CC No.07/01 FI Vs. Hari Ram Etc. Page 2 of 22 42DDA Commercial Complex, Rajinder Bhawan, Rajinder Place, New Delhi, where the said food article was found stored for use in preparation of vegetables and where the accused Hari Ram was found conducting the business of said restaurant at the time of sampling. The sample was taken under the supervision and direction of Shri Lal Singh, SDM/LHA. The sample consisted of 750 gms. of Paneer taken from an open container bearing no label declaration and was cut into smallest pieces with the help of clean and dry knife in a clean and dry tray and mixed properly with the same knife. Thereafter, the sample was divided into three equal parts by FI by putting it in three clean and dry bottles and 20 drops of formalin were added to each bottle with a dropper and thereafter each bottle containing the sample was separately packed, fastened and sealed according to the PFA Act and Rules. Notice was given to the vendor and price of sample was also offered to him but the same was not accepted by the vendor stating that Paneer was not for sale and was to be used in preparation of vegetables. Panchnama was also prepared at the spot. All these documents prepared by FI Sh. V.P.S. Chaudhary were signed by accused Hari Ram, the vendor and the other witness namely Sh. R.K. Bhaskar, FI. It is stated that before taking the sample, efforts were made to get the public witnesses to join the 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 CC No.07/01 FI Vs. Hari Ram Etc. Page 3 of 22 analysed the sample and opined that "the sample does not conform to standards because milk fat content of dried matter is less than the prescribed minimum limit of 50%".
3. It is further stated that during investigation it is revealed that Hari Ram S/o Sh. Shri Ram is the VendorcumSupervisor of M/s Kandhar Restaurant, 42DDA Commercial Complex, Rajinder Bhawan, Rajinder Place, New Delhi8. It is also revealed that M/s Kandhar Restaurant is a partnership firm having two partners namely Sh. Ajit Singh Pahwa and Sh. Tajinder Singh Pahwa. Both the partners are found to be incharge of and responsible for the conduct of the day to day business of the firm M/s Kandhar Restaurant. After conclusion of the investigation, 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 aforesaid accused persons for violation of provisions of section 2 ((ia) (a) & (m) of the PFA Act, 1954 which is punishable U/s 16 (1) (a) r/w Section 7 of the PFA Act 1954.
4. The accused were summoned vide order dated 30.01.2001. All the accused appeared and an application U/s 13 (2) of the Act was moved by accused no. 1 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. Director, CFL, Calcutta on analysing the second counterpart of the sample in question opined vide his Certificate dated 09.04.2001 that CC No.07/01 FI Vs. Hari Ram Etc. Page 4 of 22 "Sample of Paneer is adulterated."
5. The prosecution examined Sh. V.P.S. Chaudhary, FI who conducted the sample proceedings as PW1 towards precharge evidence and vide order dated 18.08.2009, precharge evidence was closed.
6. Notice U/s 251 Cr.P.C. for violation of Section 2 (ia) (a) &
(m) of the PFA Act, punishable U/s 16 (1) (a) r/w section 7 of the PFA Act were framed against the accused persons including accused no. 2 M/s Kandhar Restaurant of which accused no. 3 and 4 are partners and accused no.1 being vendorcumsupervisor, vide order dated 24.09.2002 to which they pleaded not guilty and claimed trial.
7. Thereafter, in order to prove its case, the prosecution examined two witnesses namely FI V.P.S. Chaudhary, who conducted the sample proceedings as PW1 and FI R.K. Bhaskar, who was made a witness in the sample proceedings as PW2 and PE was closed vide order dated 23.10.2009.
8. Statement of all the accused persons U/s 313 Cr.P.C. were recorded on 12.01.2010 wherein they claimed themselves to be innocent, however they opted for not to lead evidence in their defence and accordingly DE was closed vide order dated 12.01.2010.
9. I have heard the Ld. Counsel for the parties and perused the record carefully.
10. Ld. Counsel for accused no. 1 argued that accused no. 1 has been falsely implicated in the present case and he was only an employee of CC No.07/01 FI Vs. Hari Ram Etc. Page 5 of 22 accused no. 2 of which accused no. 3 and 4 are the partners and was looking after the work of cleanliness and, therefore, he cannot be held liable for adulteration found in the sample commodity and is liable to be acquitted.
11. While, Ld. Counsel for accused no. 2 to 4 denied that accused no. 1 was employee of accused no. 2 of which accused no. 3 and 4 are the partners and argued that sample commodity does not belong to accused no. 2 and in fact sample commodity was lifted from accused no. 1 who was the exclusive owner of the sample commodity and was running a stall in front of M/s Kandhar Restaurant. He further argued that on the day of sampling, the restaurant was closed being Tuesday and also due to Guru Parv and both the partners of restaurant had gone to Amritsar at Golden Temple to pay homage. He vehemently argued that accused no. 2 to 4 have nothing to do with the sample commodity and they have been falsely implicated in the present case and are liable to be acquitted. Ld. Counsel for accused no. 2 to 4 further argued that even otherwise Food Inspector did not apply correct procedure for lifting the sample and he cut the sample of Paneer into smallest pieces with the help of knife which is not a scientific method and Paneer should have been cut with the help of cheese wire. He contended that due to defective method applied by the Food Inspector, the water from the Paneer oozed out while cutting the Paneer which resulted into reduction of fat as reported by the Public Analyst. He further argued that there are variations in the report of Public Analyst and Director, CFL, CC No.07/01 FI Vs. Hari Ram Etc. Page 6 of 22 which suggests that sample lifted by the Food Inspector was not properly homogenized and representative one, for which benefit of doubt is liable to be given to the accused persons. Ld. Counsel for accused no. 2 to 4 further vehemently argued that there is huge delay in filing the complaint and the delay in filing the complaint has caused a great prejudice to the accused as he could not get correct analysis from Director, CFL and his valuable right U/s 13 (2) of PFA Act stood frustrated. He contended that sample of Paneer lifted in the present case is a perishable item being of milk product and by the time present complaint was filed, the shelf life of the sample commodity had already expired and it became unfit for reanalysis by the Director, CFL. He further contended that in the present case, though accused exercised his right U/s 13 (2) of PFA Act for reanalysis by the Director, CFL, but since by that time, the shelf life of the sample commodity had already expired, the report of Director, CFL is incorrect.
12. On the other hand, the Ld. SPP for complainant has argued that there is no delay in filing the complaint and complaint has been filed within limitation. He further argued that sample of Paneer was lifted from accused no. 1, who was found conducting the business of M/s Kandhar Restaurant (accused no. 2 herein) of which accused no. 3 and 4 are the partners and the sample on analysis was found to be adulterated and, therefore, all the accused are liable to be convicted. He further argued that as per report of Director, CFL, the sample of Paneer was found adulterated and the report of Director, CFL being conclusive, supersedes the report of Public Analyst CC No.07/01 FI Vs. Hari Ram Etc. Page 7 of 22 and, therefore, the accused cannot be given benefit of variations in the reports of PA and Director, CFL.
13. Both the witnesses examined by the prosecution have deposed more or less as per the averments made in the complaint. PW1 Sh. V.P.S. Chaudhary who is the complainant in the present case and conducted the sample proceedings deposed in his examinationinchief that on 25.07.2000 he along with FI R.K. Bhaskar under the supervision of SDM/LHA Sh. Lal Singh visited the premises of M/s Kandhar Restaurant, 42, DDA Commercial Complex, Rajender Place, New Delhi, where accused Hari Ram was found conducting the business of restaurant after having stored various food articles including Paneer, used in preparation of food articles for sale for human consumption which was contained in an open container having no label declaration. He further disclosed that he introduced himself to the accused and intended to purchase sample of paneer for analysis to which accused agreed and thereafter at about 7.20 PM, he purchased 750 gms of paneer from accused by offering Rs. 42/ vide Ex. PW1/A but the accused refused to accept the same on the plea that the paneer as such was not for sale and the same was to be used for preparation of vegetables. He further deposed that before taking the sample, entire quantity of paneer was cut into smallest possible pieces with the help of clean and dry knife in a clean and dry tray and mixed properly with the same knife and thereafter he divided the sample into three equal parts by putting the same in three separate clean and dry glass bottles and 20 drops of formalin were added in CC No.07/01 FI Vs. Hari Ram Etc. Page 8 of 22 each of the sample bottle and each counterpart was separately packed, marked, fastened and sealed as per law. He further deposed that he prepared notice in Form VI Ex. PW1/B and panchnama Ex. PW1/C and a copy of the notice was also received by the accused and all the aforesaid documents prepared on the spot were read over and explained to the accused who after understanding the same signed the same. It is further deposed by PW1 that on 26.07.2000, he deposited in office of PA, one sealed counterpart of sample along with copy of form VII having specimen seal impression of seal used and one more copy of form VII having same seal impression in separate sealed packets for analysis vide receipt Ex. PW1/D and on the say day, the other two counterparts along with 2 copies of form VII having specimen seal impressions of seal used in separate sealed packets were deposited in the office of LHA vide receipt Ex. PW1/E.
14. PW1 during his deposition has also placed on record the PA's report as Ex. PW1/F, reply collected by him during investigation from STO as Ex. PW1/G, sanction given by the Director, PFA for initiating the prosecution proceedings against the accused persons as Ex. PW1/H, complaint filed by him as Ex. PW1/J, copy of intimation letter sent to the accused as Ex. PW1/K along with PA report, postal registration receipt showing dispatch of intimation letter as Ex. PW1/L and letter sent to M/s Kandhar Restaurant as Ex. PX.
15. PW2 FI R.K. Bhaskar who was made a witness at the time of sample proceedings in his evidence has deposed more or less on the similar CC No.07/01 FI Vs. Hari Ram Etc. Page 9 of 22 lines as deposed by PW1 in his examinationinchief.
16. In his crossexamination, PW1 stated that he cannot say if the day of sampling was Gurparv. He admitted that on the date of sampling both the partners were not present at the shop. He denied the suggestion that accused Hari Ram was conducting the business of Chat Pakora in a small counter outside M/s Kandhar Restaurant on the day of sampling. He further denied the suggestion that Hari Ram is in no way concerned with the running of the restaurant in question. He also denied the suggestion that Hari Ram stated at the time of sampling that Ajit Singh Pahwa and Tejinder Singh Pahwa had gone to Amritsar for Darshan of the Golden Temple on that day. He further denied the suggestion that the sample of paneer in question was not taken by him from M/s Kandhar Restaurant, 42, DDA Commercial Complex, Rajinder Place, New Delhi. He further denied the suggestion that the sample in question was taken from a stall belonging to Hari Ram from outside in front of the premises of M/s Kandhar Restaurant. PW1 further denied the suggestion that while cutting the paneer liquid was oozed out of it on the tray. He was also suggested that cutting of paneer with knife is not a scientific method which he denied. He further denied the suggestion that he adopted the wrong method for cutting the paneer into pieces. He further denied the suggestion that the proper method of taking the sample of paneer is by cutting the paneer with the help of cheese wire. He also denied the suggestion that while cutting into pieces of paneer, he put his one hand on the paneer or that in the process of cutting the paneer, CC No.07/01 FI Vs. Hari Ram Etc. Page 10 of 22 some portion of the fat was sticking on the tray and some on the knife. He further denied the suggestion that the formalin used in this case can only preserve the sample for correct analysis upto one month, thereafter the lipolysis of fat takes place which results in the degradation of fat resulting the reduction of fat with the passage of time.
17. PW2 in his crossexamination stated that he cannot say that FI VPS Chaudhary collected any document in regard to the fact that the vendor was the supervisor of the said restaurant. Voluntarily, he stated that the vendor Hari Ram disclosed the said fact at the time of sampling. He denied the suggestion that Hari Ram has got a stall just outside the restaurant where he prepares chat pakora etc. He further denied the suggestion that Hari Ram disclosed that the paneer in question was purchased by him from Shiv Shakti Dairy, East Patel Nagar, Delhi He further denied the suggestion that the sample paneer of this case is no way related with the restaurant in question. He admitted that Hari Ram did not accept the sample price which was offered to him on the ground that the paneer was not meant for sale as such but it was meant for sale after preparation of sabji (kari) and it was not meant for preparation of pakoras. He denied the suggestion that cutting of paneer with the help of knife is a crude and non scientific method. He stated that in the department of PFA now, there is no freezing facility in the New Building and so now a days the paneer is kept into room temperature. He further stated that he does not know if restaurant was closed on that day due to Guruparv.
CC No.07/01 FI Vs. Hari Ram Etc. Page 11 of 2218. The accused no. 1 in his statement recorded U/s 313 Cr.P.C. has taken a defence that no sample of paneer was lifted from him and he was only looking after the work of cleanliness, he is innocent and has been falsely implicated in the present case.
19. Accused no. 2 M/s Kandhar Restaurant from where as per the case of prosecution, the sample of Paneer was lifted and the accused no. 3 and 4 who are partners of accused no. 2 in their statement recorded U/s 313 Cr.P.C. though have feigned ignorance regarding the sample proceedings, but they took similar defence that M/s Kandhar Restaurant is closed on every Tuesday and on the day of sampling owners of M/s Kandhar Restaurant were not present at the spot as restaurant was closed being Tuesday and they had gone to Amritsar to pay homage in the Golden Temple on the eve of Guru Purb. They have denied that accused no. 1 is employee of M/s Kandhar Restaurant and it was contended that they have nothing to do with the sample Paneer and it was accused no. 1 Hari Ram who was exclusive owner of the sampled Paneer. It was also contended that alleged cutting of paneer with knife into smallest pieces is a crude and non scientific method and Paneer should have been cut into smallest pieces with the help of cheese wire so that water from the paneer may not ooze out. It was further contended that Paneer is an acid coagulated milk product and has limited shelf life and formalin can not preserve the sample of paneer for accurate analysis for more than four months and therefore certificate of Director, CFL after a period of about nine months is not correct.
CC No.07/01 FI Vs. Hari Ram Etc. Page 12 of 2220. As per case of prosecution, on 25.07.2000 at about 7.20 PM, PFA team including FI V.P.S. Chaudhary and FI R.K. Bhaskar under the supervision and direction of Sh. Lal Singh, SDM/LHA conducted a raid at M/s Kandhar Restaurant where accused no. 1 was found conducting the business of the said restaurant and a sample of Paneer was lifted from him which on being analyzed by the Public Analyst was found not conforming to the standards because milk fat of dry matter was less than the prescribed minimum limit of 50%. The report of Public Analyst has been proved on record as Ex. PW1/F, on the basis of which present complaint has been launched against the accused persons. Accused no. 1 is stated to be vendor cumsupervisor of M/s Kandhar Restaurant, which has been impleaded as accused no. 2 being vendor firm and accused no. 3 and 4 have been impleaded being partners of M/s Kandhar Restaurant.
21. Accused no. 1 has taken a plea that he was only an employee of M/s Kandhar Restaurant and was looking after the work of cleanliness and he was not responsible for adulteration found in the sample commodity. Whereas, the accused no. 3 and 4 who are the partners of accused no. 2 M/s Kandhar Restaurant in their statement U/s 313 Cr.P.C. have denied the fact that accused no. 1 is employee of M/s Kandhar Restaurant. As per accused no. 2 to 4, they have nothing to do with the sample commodity and sample of Paneer was lifted from accused no. 1 who was exclusive owner of the sample commodity and was running a stall in front of M/s Kandhar Restaurant. It was further defence of accused no. 2 to 4 that restaurant is CC No.07/01 FI Vs. Hari Ram Etc. Page 13 of 22 closed on every Tuesday and on the date of sampling, restaurant was closed and was not functioning being Tuesday and none of the partner of M/s Kandhar Restaurant was present at the spot and they had gone to Amritsar to pay homage at Golden Temple due to Guru parv.
22. It is not in dispute that on the date of sample proceedings, the accused no. 3 and 4 who are the partners of accused no. 2 M/s Kandhar Restaurant were not present at the spot and this fact has been categorically admitted by PW1 FI VPS Chaudhary in his crossexamination who conducted the sample proceedings. Admittedly, none of the documents prepared at the spot were signed by both the partners of M/s Kandhar Restaurant and all the documents prepared at the spot were signed by accused no. 1 and his thumb impression were also obtained on the documents. Complainant has claimed that accused no. 1 was the supervisor of accused no. 2 M/s Kandhar Restaurant from whom the sample was lifted, but same has been disputed by the accused no. 3 and 4 who are the partners of M/s Kandhar Restaurant. However, nothing has been placed on record by the complainant to show that accused no. 1 was employed with accused no. 2 M/s Kandhar Restaurant and in this regard PW1, who is the complainant in the present case, categorically admitted in his cross examination that he could not collect any document to show that Hari Ram was the supervisor/employee of the restaurant. In the absence of any material on record, it cannot be said that accused no. 1 Hari Ram was the employee/supervisor of M/s Kandhar Restaurant and sample was lifted CC No.07/01 FI Vs. Hari Ram Etc. Page 14 of 22 from the premises of M/s Kandhar Restaurant as claimed by prosecution. The complainant has not seized any document to show any connectivity of sample commodity with M/s Kandhar Restaurant (accused no. 2 herein). Even no public or independent witness has been joined in the sample proceedings by the complainant to lend credence to its case that sample was lifted from M/s Kandhar Restaurant.
23. It is also to be noted that accused no. 3 and 4, partners of accused no. 2 M/s Kandhar Restaurant have taken a plea that market was closed on the day of sample proceedings being Tuesday and Guru parv and accordingly restaurant was also closed and they had gone to Amritsar to pay homage at Golden Temple. This fact that on the day of sample proceedings market was closed due to Guru Parv could not be denied by the PWs in their crossexamination. PW1 stated in his crossexamination that he cannot say that if the day of sampling was Guruparv. PW2 feigned ignorance in this regard and stated that he does not know if restaurant was closed on that day due to Guruparv. Therefore, onus was upon the complainant to prove that sample commodity was lifted from accused no. 2 M/s Kandhar Restaurant. But, as stated above, nothing has been placed on record by the complainant to connect the sample commodity with accused no. 2 M/s Kandhar Restaurant of which accused no. 3 and 4 are the partners. Even the complainant failed to prove that accused no. 1 from whom the sample commodity was lifted was the employee of M/s Kandhar Restaurant. As such, the prosecution has failed to prove that the sample of CC No.07/01 FI Vs. Hari Ram Etc. Page 15 of 22 Paneer was lifted from M/s Kandhar Restaurant i.e. accused no. 2 and, therefore, in the absence of any evidence to prove the connectivity of accused no. 2 to 4 with the sample commodity, they are liable to be acquitted. Accordingly, accused no. 2 to 4 are acquitted of the charges leveled against them.
24. So far the liability of accused no. 1 is concerned, as per case of prosecution, sample of Paneer was lifted from accused no. 1. Though, accused no. 1 in his statement U/s 313 Cr.P.C. has denied that sample of Paneer was lifted from him, but this plea of the accused no. 1 is not tenable in view of the documents prepared at the spot including Notice in Form VI Ex. PW1/B, copy of which was also received by the accused no. 1. Perusal of same shows that sample of Paneer was lifted from accused no. 1 Hari Ram. All the documents prepared at the spot were duly signed by the accused no. 1 and his thumb impression were also obtained on the documents. It is nowhere case of the accused no. 1 that his signatures and thumb impression were forged by the Food Inspector or that he was forced to sign the documents at the spot. Therefore, plea of the accused no. 1 that no sample of Paneer was lifted from him is not acceptable.
25. The sample of Paneer lifted from the accused no. 1 was sent to the Public Analyst who after analyzing the first counterpart of the sample vide its report Ex. PW1/F opined that sample does not conform to the standards because milk fat of dry matter is less than the prescribed minimum limit of 50%. On appearing, accused no. 1 exercised his right CC No.07/01 FI Vs. Hari Ram Etc. Page 16 of 22 u/s 13 (2) of the PFA Act to get analyzed the second counterpart of the sample. The Director, CFL after analyzing the second counterpart of the sample vide his certificate dated 09.04.2001 also found the milk fat on dry weight basis less than the minimum prescribed requirement and on the basis of same opined that sample of Paneer is adulterated.
26. However, it is to be noted that in the present case, sample of Paneer was lifted by FI Sh. V.P.S. Chaudhary on 25.07.2000 and the present complaint has been filed on 30.01.2001 on the basis of PA's report dated 03.08.2000 i.e. after about 6 months from lifting the sample. The second counterpart of the sample was analyzed by the Director, CFL on 09.04.2001 i.e. after about 8 months from the date of lifting the sample. The Hon'ble Delhi High Court in Gian Chand Vs. The State 1978 (I) FAC 15 (Delhi) held that if a preservative is added and the sample is kept at room temperature, the percentage of fat and nonfatty solids contents for purposes of analysis will be retained for about four months, and in case it is kept in a refrigerator after adding the preservative, the total period which may be available for making analysis, without decomposition, will be six months. In the said case the sample of milk lifted for analysis was found adulterated by the Public Analyst.
27. In the present case, admittedly the sample commodity i.e. Paneer is a milk product and perishable in nature. PW1 who conducted the sample proceedings also admitted in his crossexamination that paneer is a perishable commodity. It is nowhere case of the prosecution that the sample CC No.07/01 FI Vs. Hari Ram Etc. Page 17 of 22 of Paneer was kept in refrigerator and in this regard PW1 feigned ignorance and stated in his crossexamination that he does not know if any refrigeration facility was available in the department at the relevant time. Whereas, PW2 in his crossexamination categorically stated that in the department of PFA now, there is no freezing facility in the New Building and so now days the paneer is kept into room temperature. Even if it is assumed that the sample was kept in a refrigerator, still in view of law laid down in the aforesaid authority cited supra, it cannot be said that the sample of 'Paneer' remained fit for reanalysis by Director, CFL after 8 months from the date of lifting the same.
28. Therefore, the complainant should have taken immediate steps to file the complaint after receiving the report of Public Analyst in order to enable the accused to exercise their right U/s 13 (2) of PFA Act to get the second counterpart of the sample analyzed by the Director, CFL within time. But, the present complaint has been filed on 30.01.2001 i.e. after about 6 months from lifting the sample on 25.07.2000 even the first counterpart of the sample was analyzed by the Public Analyst on 03.08.2000.
29. As such, it is apparent that there is huge delay in filing the complaint and due to inordinate delay on the part of the complainant in filing the complaint, the accused no. 1 could exercise his right U/s 13 (2) of PFA Act only after lapse of 6 months after receiving the intimation of present complaint, which again resulted in delay in analyzing the sample by CC No.07/01 FI Vs. Hari Ram Etc. Page 18 of 22 Director, CFL on 09.04.2001 i.e. after the lapse of about 8 months from lifting the sample. By the time when the accused received the intimation of present complaint and even by the time present complaint was filed, the sample of Paneer must have decomposed with the passage of time being perishable in nature and got deteriorated and became unfit for further analysis by the Director, CFL. The Hon'ble Delhi High Court has also held in State Vs. Parveen Aggarwal 2012 (2) FAC 124 that, "It is scientifically proved fact that over the passage of time, the milk fat content in a sample of Paneer decreases." Therefore, it is evident that due to delay in filing the complaint, correct analysis from Director, CFL could not be obtained as by that time the shelf life of the milk had already expired and thus the valuable right of the accused U/s 13 (2) of PFA Act stood frustrated and, therefore, on the basis of report of Public Analyst, the accused no. 1 cannot be held guilty. The Hon'ble Supreme Court of India in Municipal Corporation of Delhi Vs. Ghisa Ram, AIR 1967 S.C 970 held that, "When a valuable right is conferred by Section 13(2) of the Act on the vendor to have the sample given to him analyzed by the Director of the Central Food Laboratory, it is to be expected that the prosecution will proceed in such a manner that right will not be denied to him. The right is a valuable one, because the certificate of the Director supersedes the report of the Public Analyst and is treated as conclusive evidence of its contents. Obviously, the right has been given to the vendor in order that, for his satisfaction and proper defence, he should be able to have the sample kept in his charge CC No.07/01 FI Vs. Hari Ram Etc. Page 19 of 22 analyzed by a greater expert whose certificate is to be accepted by court as conclusive evidence. In a case where there is a denial of this right on account of the deliberate conduct of the prosecution, we think that the vendor, in his trial, is so seriously prejudiced that it would not be proper to uphold his conviction on the basis of the report of the Public Analyst, even though that report continues to be evidence in the case of the facts contained therein."
30. There is another aspect of the matter. Though, in the present case, Public Analyst as well as Director, CFL found the sample adulterated on account of deficiency in milk fat of dry matter, but perusal of reports of both the experts shows that there are variations in both the reports in respect of different parameters of the sample commodity. As per report of Public Analyst Ex. PW1/F, 'moisture' was found to the extent of 55.92%, whereas Director, CFL found the same to the extent of 64.9%. Similarly, 'Milk fat of dry matter' was 41.44% as per report of Public Analyst Ex. PW1/F, while as per certificate of Director, CFL, 'Milk fat' was 45.6% on dry weight basis. Likewise, 'B.R. Reading of extracted fat at 40 Deg C' was 43 as per report of Public Analyst, while Director, CFL found the same as 42.3.
31. The aforesaid variations in the report of both the Analysts shows that the sample was not properly mixed up and hence it cannot be said to be representative sample. In State Vs. Rama Rattan Malhotra 2012 (2) FAC 398 after relying upon various judgments titled as Kanshi CC No.07/01 FI Vs. Hari Ram Etc. Page 20 of 22 Nath Vs. State 2005(2) FAC 219 and State Vs. Mahender Kumar & Ors., 2008 (1) FAC 177, the Hon'ble Delhi High Court 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 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." Reliance may also be placed upon State (Delhi Administration) Vs. Ram Singh & Ors. 2009 (1) FAC 371 and State Vs. Suresh Kumar & Anr. 2010 (2) FAC
204.
32. In view of law laid down in the aforesaid authorities, since there are variations in the report of Public Analyst (PA) and Director, Central Food Laboratory, which are beyond the permissible limit of .3 %, it leads to the inference that sample was not representative one and, therefore, benefit of doubt is liable to be given to the accused.
33. In view of foregoing discussions, since there are variations in the reports of two Analysts which are higher than the permissible limit and and further due to delay in filing the complaint, valuable right of the CC No.07/01 FI Vs. Hari Ram Etc. Page 21 of 22 accused no. 1 to get correct analysis from CFL stood frustrated, accused no. 1 is given benefit of doubt and accordingly he is also acquitted of the charges leveled against him.
File be consigned to Record Room.
Announced in the open Court (Balwant Rai Bansal)
on 18th September, 2013 ACMMII/ PHC/ New Delhi
CC No.07/01
FI Vs. Hari Ram Etc. Page 22 of 22
CC No. 07/01
DA Vs. Hari Ram Etc.
18.09.2013
Present: Sh. Masood Ahmad, Ld. SPP for complainant.
Accused no. 1 in person.
Accused no. 3, who is also representing accused no. 2,
and accused no. 4 are present with counsel Sh. M.L.
Alwadhi
Vide my separate Judgment of even date dictated and announced in the open court, all the accused stand acquitted of the charges leveled against them. Previous Bail Bond / Surety Bond stands cancelled. Surety stands discharged. Endorsement on the documents of the previous surety, if any, be cancelled.
Accused are directed to furnish fresh bail bonds in compliance of Section 437A Cr.P.C. Accused have furnished B/B & S/B in the sum of Rs. 15,000/ each. Same are accepted.
File be consigned to Record Room.
(Balwant Rai Bansal) ACMMII/PHC/ND/18.09.2013 CC No.07/01 FI Vs. Hari Ram Etc. Page 23 of 22