Delhi District Court
Judge - Ndps Patiala House Courts : New ... vs The State on 15 September, 2011
IN THE COURT OF MS. ANU GROVER BALIGA: SPECIAL
JUDGE - NDPS PATIALA HOUSE COURTS : NEW DELHI
C.A. No. 20/11
ID No. 02403R0019172011
Rajesh Sharma
S/o Sh. Sudesh Raj Sharma
M/s Sheelam Restaurant, J1/7,
Sujan Singh Park,
New Delhi03
R/o 862, LIG Flat, Vikas Puri,
New Delhi18
2. Jagroop Singh
S/o Late Shri Yad Ram
M/s Sheelam Restaurant, J1/7,
Sujan Singh Park,
New Delhi03
R/o G/200300, Madangir,
New Delhi .... Appellants
Versus
The State
(Govt. of NCT of Delhi) ..... Respondent
CA No. 20/11 1
Date of Institution : 05/03/2011
Order was reserved on : 12/08/2011
Date of pronouncement : 15/09/2011
ORDER
1. This criminal appeal has been preferred against the judgment dt. 20/01/2011 and the order on sentence dt. 09/02/2011 passed by Ld ACMM II, New Delhi District whereby the appellant has been convicted u/s 16 (1) read with Section 7 of the Prevention of Food Adulteration Act, 1954 (herein referred to as 'PFA Act') for committing violation of sub clause
(a)(m) of Section 2 (ia) of the PFA Act and sentenced to rigorous imprisonment for 6 months and fine of Rs. 10,000/.
2. Briefly stated, the case of the prosecution put up before the Ld. Trial Court was as follows:
(a) On 17.09.2003 at about 4.00 p.m., PW1 Food Inspector Sh. D P Singh purchased a sample of 'Curd', a food article for analysis from Sh. Rajesh Sharma (appellant no. 1) who was found conducting the business of sale of Curd at M/s Sheelam CA No. 20/11 2 Restaurant, J1/7, Sujan Singh Park, New Delhi. The said sample was found stored in an open container bearing no label declaration.
(b) The evidence led by the complainant PW1 D.P. Singh before the Ld. Trial Court was to the effect that the sample was taken under the supervision of PW2 Sh. K.N. Sharma LHA and the same was taken after proper homogenization with the help of dry and clean wisk (mathani) steel and was then divided into three equal parts by putting them into three separate clean and dry bottles and to each of the bottle 20 drops of formalin were added. Each bottle containing the sample was separately packed, fastened 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 Sh. Rajesh Sharma and the panchnama was also prepared at the spot. One counterpart of the sample was sent to the Public Analyst for analysis and two counterparts were deposited with the LHA in intact condition. As per the report of the Public Analyst, the Curd sample was found not conforming to the standard prescribed under PFA Act and Rules in as CA No. 20/11 3 much as it was found deficient in 'milk fat' and 'milk solid not fat'
(c) PW1 the Food Inspector has further deposed that on the basis of the reply given by the vendor Rajesh Sharma, (Appellant no. 1 herein) that it was Jagroop Singh (Appellant no.2 herein) who was the Proprietor of the shop M/s Sheelam Restaurant, he further investigated the case and made inquiries from the Sales Tax Office and the NDMC. According to his deposition the said investigation revealed that the said Jagroop Singh was the proprietor of M/s Sheelam Restaurant and thus he was also arrayed as an accused.
3. On the basis of the entire evidence led before the Ld. Trial Court before him, the Ld. ACMM II found both the accused guilty of adulteration of food article and hence, convicted them, accordingly.
4. The judgment of the Ld. ACMM is being assailed before this court mainly on the ground that the sample sent for analysis was not a representative sample in as much as the CA No. 20/11 4 curd was not churned properly and the proper method was not adopted by lifting the sample. It has also been contended that the appellant No.2 Jagroop Singh was not even present at the time of sampling and his signatures were also not obtained on the documents prepared at the spot and that the prosecution has not been able to prove that he was the responsible person for the conduct of the business at the time of sampling. It is also being contended that in the present case, the Food Inspector has filed the complaint after 5 months of taking the sample and that this has seriously prejudiced the rights of the appellant granted to him u/s 13 (2) of the PFA Act, in as much as the sample of curd does not retain its original composition after a period of 5 months. During the course of arguments, Ld. Counsel for the appellant has also contended that there has been a violation of Rule 17 and 18 of the PFA rules with respect to the sending of sample to the Public Analyst and that the benefit of doubt must go to the appellants more so when no Public witnesses have been joined by the Food Inspector during the investigation. In support of his contentions Ld. Counsel had relied upon the following judgments. CA No. 20/11 5
a) Chanan Lal V/s The State 1972 FAC 292 (Delhi)
b) MCD V/s Ghisa Ram 19481997 FAC (SC) 93 Delhi.
c) Girishbhai Dahyabhai Shah vs. C.C. Jani and another 2009 (2) FAC 194 SC.
d) Subash Chand Gupta & Ors. V/s State through Food Inspector (PFA) Govt. of NCD of Delhi 2009 (3) JCC 2194 (Delhi High Court);
e) Kisan Trimbak Kothule & Ors V/s. State of Maharashtra 1976 (2) FAC 188(SC)
f) State of Punjab V/s. Kewal Krishan & Ors. 1996 (2) FAC 317( P & H Court).
g) K. Harikumar V/s. Food Inspector, Punaloor Municipality 1996 (2) FAC 294 (SC).
h) MCD V/s. Satpal 1972 FAC 424 Delhi.
i) MCD V/s. Chhajju Lal 1972 FAC 692 Delhi.
j) Omparkash Sharma & Ors. V/s. State of Assam 2006 (2) FAC 114 Gauhati.
k) State of Assam V/s. M/s. Gopal Hotel and Restaurant, Gauhati & Ors 1990 (1) FAC 183 Gauhati.
l) Santosh Kumar Sharma V/s. State of Assam 2005 (1) FAC CA No. 20/11 6
231.
5. Though no reply has been filed to the present appeal on behalf of the State, the Ld. Counsel Sh. Padi has submitted that none of the contentions raised in the appeal have any merit and according to the Ld. Counsel, the Ld. Trial Court has already considered by the submissions made on behalf of the accused persons.
6. I have gone through the entire trial court record and the judgments relied upon by the Ld. Counsel for Appellant. I will first deal with the contention of the appellant Jagroop Singh that there is no evidence produced by the prosecution to show he was responsible for the conduct of the business at the time of sampling. In my considered opinion in view of the detailed deposition of PW1 and documents placed by him on record, this contention of the appellant no:2 has absolutely no merits. PW1 in his deposition has clearly stated that appellant No.1 herein Sh. Rajesh Sharma, who was present at the shop M/s Sheelam Restaurant when the sample was taken, in response CA No. 20/11 7 to the notice Ex.PW1/B issued to him gave a statement Ex. PW1/1 stating therein that he is the Manager and the person responsible to look after the business of the Restaurant is its proprietor Jagroop Singh. Based on the said reply the Food Inspector PW1 further enquired about the ownership of the Restaurant from Sales Tax Department and the NDMC. The reply of the Sales Tax office, Ex.PW1/J makes it clear that according to them it is Jagroop Singh who is the proprietor of the Restaurant in question as he had applied for change in the constitution of the firm M/s Sheelam Restaurant from partnership to proprietorship in his name. The application made by Jagroop Singh made in this regard has been exhibited is Ex. PW1/O. The food inspector also then made an inquiry from the NDMC office and as per the NDMC receipt Ex. PW1/M it is Jagroop Singh who was paying the licence charges with respect to the shop in question to NDMC.
7. In view of the said documentary evidence it is not understandable as to how it is to being contended in the appeal proceedings that appellant No: 2 Jagroop Singh was CA No. 20/11 8 not incharge of the business of M/s Sheelam Restaurant, more so when not a single question has been put to in the cross examination of food inspector to dispute his statement that it was Jagroop Singh who was the proprietor of Ms Sheelam Restaurant and therefore, was responsible for its day to day affairs.
8. Further the judgments relied upon by the ld. counsel for the appellant in support of this contention are not at all applicable to the present case as in all the said judgments the firm in question carrying on the business was a partnership firm and there was not even a single averment in the entire complaint that the persons arrayed as accused were in charge and responsible of the day to day business of the partnership firm. In the present case as is narrated herein above M/s Sheelam Restaurant is a proprietorship firm of Jagroop Singh and in law the proprietor of a firm is its sole Manager and the person responsible for its affairs.
9. The next contention made by the ld. counsel for the CA No. 20/11 9 appellant during the course of arguments namely that there has been a violation of rule 17 & rule 18 of PFA Act and Rules also does not have much merits, in as much as PW1 in his evidence has clearly deposed before the learned trial court that on 19092003 he had deposited in the office of the public analyst one sealed counter packet of the sample along with copy of form VII containing specimen seal impression of the seal used and one more copy of form VII having same seal impression in separate sealed packet for analysis vide Ex.Pw1/E. This deposition makes it clear that not only rule 17 but rule 18 has also been duly complied with in the present case.
10. Coming now to the main contention of the ld counsel for appellant, namely that a representative sample was not taken by the Food Inspector in the present case, it is to be held that in view of the material on record and the judicial dicta referred to by the ld counsel, this contention does have merit. In all the judgments relied upon by the ld. counsel for the appellant (mentioned herein above at serial no. g) to l)) the Hon'ble CA No. 20/11 10 Courts have clearly held that before taking out a sample of curd the same has to be necessarily churned in order to draw out a representative sample. The Hon'ble Supreme Court in K. Hari Kumar's case (supra), has observed that before taking a sample of curd, the Food Inspector must stir and churn the curd. The following observations have been made by the Hon'ble Supreme Court "in order to attain homogeneity in curds stirring and churning, as the case may be, becomes necessary for the ingredients of milk sold nonfat and milk solid fat getting a uniform consistency in order to determine the percentage in their completeness".
11. In the present case, admittedly the Food Inspector has nowhere stated in his entire deposition that he had churned the curd before drawing out the sample from therein. All that he has mentioned in his examinationinchief is that he had homogenized the curd with the help of a steel Mathani. Infact in his cross examination he has materially contradicted even this statement by deposing that the curd was mixed with the help of clean and dry big spoon (and not Mathani.) Though Ld. CA No. 20/11 11 counsel for the respondent Sh. Padi has contended that since the cross examination of this witness was done after a interval of four years he may have inadvertently stated that a spoon was used for mixing but the fact remains that, according to the witness, he had mixed the curd and not churned it. The other witnesses PW2 and PW3 have also similarly stated that curd was only mixed. Thus, there is no evidence on record to hold that sample of curd was taken after completely churning the curd and hence was representative. No doubt, the learned trial court has been correct in holding that in the present case it was not possible to give a vertical cut to the curd, keeping in view its small quantity, nevertheless there was no reason as to why the curd could not have been churned. In my considered opinion this lapse on the part of the Food Inspector has prejudiced the accused persons.
12. Apart from the aforementioned lacuna in the case of the prosecution, it is also been pointed out by the Ld. counsel for appellant that the accused has been deprived of his valuable right u/s 13 (2) of the PFA Act due to the delay in filing of the CA No. 20/11 12 present complaint. He has pointed out that in the present case the sample of curd was drawn on 17/9/2003, the public analyst analysed the same on 30/9/2003 but the complaint was filed only on 6/12/2004, by which time the composition of the curd sample would have not retained its original qualities and therefore the statutory right of the appellants to get the sample retested by the CFSL was rendered meaningless. Ld. counsel Sh. Pady in this respect has submitted that the accused persons in the present case did not at all exercise their right u/s 13 (2) PFA Act despite an opportunity granted and that therefore they cannot now seek benefit of their omission. He has submitted that there is no report on record that the sample had become unfit for analysis by 6/2/2004 and therefore it cannot be stated that the appellants herein were denied of their right u/s 13 (2) of getting the sample reexamined.
13. With respect to this contention suffice is to state that in view of the judgment pronounced by the Hon'ble Supreme Court in Girishbhai Dahyabhai Shah's case (supra the judgment relied upon by the Ld. Counsel for the appellant), CA No. 20/11 13 this issue is no longer resintegra. In the said judgment the Hon'ble Supreme Court has taken note of the fact that a sample of curd does not retain its qualities beyond a period of 46 months under controlled conditions and that, therefore, the examination of such a sample beyond this period becomes meaningless. This judgment was pronounced by the Supreme Court against the order of the Hon'ble Gujarat High Court. The copy of the said judgment of the Hon'ble Gujarat High Court has also been placed on record by the Ld. Counsel for the appellant and a perusal thereof shows clearly that even in that case, the Director CFL had not opined the sample of curd to be unfit for analysis. Thus in view of the categorical pronouncement by the Hon'ble Supreme Court it is to be held that the right of the accused persons of getting the sample retested by CFSL was frustrated due the filing of the complaint beyond four months of taking the sample. I do have to agree with the Ld. Counsel for the appellant that the act of the appellants in not filing an application u/s 13 of the PFA Act cannot be considered fatal to their defence because by the time accused persons were given an opportunity to file such CA No. 20/11 14 an application the sample of the curd would have lost its original composition and any retesting would have been meaningless.
14. In view of my discussion herein above the accused persons are liable to be acquitted. Accordingly the judgment dt. 20/01/2011 and the order on sentence dt. 09/02/2011 passed by Ld. ACMM II are hereby set aside. The appellants stand acquitted. Bail bonds stand cancelled. Sureties stand discharged. A copy of this order be sent to the Ld. Trial Court for record. Trial Court Record be also sent back. Appeal file be consigned to record room.
Announced in the open court on this 15 day of September, 2011 th (ANU GROVER BALIGA) Special Judge - NDPS Patiala House Courts : New Delhi CA No. 20/11 15