Delhi District Court
Rakesh Kumar vs . The State (Delhi on 20 February, 2023
IN THE COURT OF SH. HARJYOT SINGH BHALLA
ADDITIONAL SESSIONS JUDGE-04
PATIALA HOUSE COURTS, NEW DELHI
IN THE MATTER OF:
RAKESH KUMAR VS. THE STATE (DELHI
ADMINISTRATION)
CA No. 52/2017
CNR No. DLND01-003647-2017
Rakesh Kumar
S/o Shri M.L. Sharma,
R/o 241-A-15, Prem Nagar,
Karawal Nagar,
Delhi-110094 ......Appellant
Versus
The State (Delhi Administration) ......Respondent
Date of Institution: 16.03.2017
Date of decision : 20.02.2023
JUDGMENT (ORAL)
1. Vide this judgment, I propose to dispose off the appeal filed against the order of conviction dated 07.03.2017 and CA No. 52/2017 Rakesh Kumar Vs. The State (Delhi Administration) 1/13 order on sentence dated 14.03.2017 passed by Ld. ACMM-II, Patiala House Courts, New Delhi.
2. The brief facts of the case as per record are that accused was running an establishment in the name of M/s Mahfil Restaurant, C-2/342, Yamuna Vihar, Delhi. On 21.05.2001, Food Inspector Sh. R.P. Singh alongwith FI Sh. D.V. Singh and SDM/LHA Sh. Satnam Singh visited the said establishment and lifted 900 grams of Kaju pieces from an open polythene bag having no label declaration. The said sample was divided into three parts and packed as per Rules. Panchanama was prepared. One sample was sent for analysis to Public Analyst. As per the report of Analyst, the sample was adulterated because it was insect infested having many dead insects. On all other parameters, the sample was passed by the report of the PA.
3. As the sample failed to pass the test, prosecution was launched by Food Inspector by filing complaint with the court. Accused was summoned. Accused has not moved any application for sending the sample to CFL.
4. Charge was framed against the appellant/accused on 11.05.2010 for commission of offence punishable under Section 16 (1A) PFA Act read with Section 7 of PFA Act, for violation of Section 2(ia) (a) (f) and (l) of PFA Act, to which he pleaded not guilty and claimed trial.
5. The prosecution examined three witnesses namely, PW1 FI R.P. Singh, PW2 FI D.V. Singh and PW3 Sh. Satnam Singh (SDM/LHA).
CA No. 52/2017Rakesh Kumar Vs. The State (Delhi Administration) 2/13
6. The statement of the accused was recorded under Section 313 Cr.P.C on 14.12.2013 in which he claimed his innocence.
7. After trial, vide judgment dated 07.03.2017, accused was convicted for offence under Section 7/16 (1A) of PFA Act and vide order dated 14.03.2017, accused was directed to undergo simple imprisonment for a period of 2 years and fine of Rs.2,00,000/- and in default of payment of fine SI of 1 month.
8. I have heard the arguments and have perused the record.
On the manner of taking the sample:
Non compliance of Rule 14 of PFA Rules in lifting sample:
9. Ld. Counsel for the accused has stated that the jhaba was never cleaned before taking the sample. Therefore, he has urged that the witness was required to make a positive assertion in his evidence that he had cleaned and dried the equipment used for the purposes of sampling. According to the counsel, merely because the witness stated that clean apparatus was used without positively indicating when he had the cleaned and dried the same, compliance of Rule 14 of PFA Rules cannot be presumed.
10. I have gone through the trial court record, record of this appeal, submissions forwarded by counsel for appellant and Ld. SPP for State. My observation as as below:-
Decision
11. Before proceeding further with the matter, it may be CA No. 52/2017 Rakesh Kumar Vs. The State (Delhi Administration) 3/13 pertinent to refer to the definition of term adulterated as contained in Section 2 (ia) of the Act, 1954, which is extracted hereinbelow:
[(ia) ] "adulterated"--an article of food shall be deemed to be adulterated--
(a) 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;
(b) if the article contains any other substance which affects, or if the article is so processed as to affect, injuriously the nature, substance or quality thereof;
(c) if any inferior or cheaper substance has been substituted wholly or in part for the article so as to affect injuriously the nature, substance or quality thereof;
(d) if any constituent of the article has been wholly or in part abstracted so as to affect injuriously the nature, substance or quality thereof;
(e) if the article had been prepared, packed or kept under insanitary conditions whereby it has become contaminated or injurious to health;
(f) if the article consists wholly or in part of CA No. 52/2017 Rakesh Kumar Vs. The State (Delhi Administration) 4/13 any filthy, putrid, 1[***], rotten, decomposed or diseased animal or vegetable substance or is insect-infested or is otherwise unfit for human consumption;
(g) if the article is obtained from a diseased animal;
(h) if the article contains any poisonous or other ingredient which renders it injurious to health;
(i) if the container of the article is composed, whether wholly or in part, of any poisonous or deleterious substance which renders its contents injurious to health;
[(j) if any colouring matter other than that prescribed in respect thereof is present in the article, or if the amounts of the prescribed colouring matter which is present in the article are not within the prescribed limits of variability;]
(k) if the article contains any prohibited preservative or permitted preservative in excess of the prescribed limits;
[(l) 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 renders it injurious to health;] CA No. 52/2017 Rakesh Kumar Vs. The State (Delhi Administration) 5/13
(m) 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:
Provided that, where the quality or purity of the article, being primary food, has fallen below the prescribed standards or its constituents are present in quantities not within the prescribed limits of variability in either case, solely due to natural causes and beyond the control of human agency, then, such article shall not be deemed to be adulterated within the meaning of this sub- clause. Explanation.--Where two or more articles of primary food are mixed together and the resultant article of food--
(a) is stored, sold or distributed under a name which denotes the ingredients thereof; and
(b) is not injurious to health, then, such resultant article shall not be deemed to be adulterated within the meaning of this clause;
12. Now clearly, the present case seems to be falling under Clause (f) of Section 2 (1a). The same cannot be CA No. 52/2017 Rakesh Kumar Vs. The State (Delhi Administration) 6/13 considered as insignificant, inasmuch as, the definition of adulterated deals with patent and latent defects which include defects of quality and nature of substance or addition of other substances which may be injurious in nature, or presence of insects or any filthy, putrid, rotten, decompose substance, product of a diseased animal, any other poisonous ingredient injurious to health, or a permissible additive beyond the prescribed limit or a prohibited substance. All the aforesaid imply that an adulterated food article has been rendered unfit for human consumption due to the aforestated ingredients. Some of them may be patent and some may be latent.
13. What is required to be seen is as to how the insects get into the food article. Were they already present when the sample was lifted or could they have developed due to improper storage or handling at the business premises or developed later due to improper sampling or due to natural causes.
14. When I look at the record of the case, the Form VI which contains the description of article records as follows:
Kaju pieces (ready for use) approximately 900 grams of Kaju pieces taken from an open polythene bag having no label declaration. The sample was taken after proper mixing with a clean and dry jhaba by rotating the same into clockwisse, anticlockwise upwards and downwards several times.CA No. 52/2017
Rakesh Kumar Vs. The State (Delhi Administration) 7/13
15. However, this document does not contain any claim that the sample was being taken as some live or dead insect was seen by the FI. Therefore, the reason why the sample of Kaju was taken from the Restaurant is not coming forth. In any event, obviously, during cross examination PW-2 and PW-3 admitted that no insect was visible at the relevant time.
16. PW-2 Sh. D.V. Singh further admitted during cross examination on 02.07.2013 that:
No live or dead insects were visible in the sample commodity with naked eyes.
17. PW-3 Sh. Satnam Singh has also admitted during cross examination that:
During sample proceedings, no live or dead insects were visible to me with naked eyes.
18. As far as the presence of insects on the date of taking of sample is concerned as already noted that PW-2 and PW-3 have admitted in their cross examination that they were unable to see any live or dead insect with the naked eye at the time of taking of sample.
19. That takes me first to the date and time of analysis.
20. Report of the PA indicates that sample was received by the PA on 22.05.2001 and the report was prepared on 06.06.2001, which is approximately 14 days from the date of receipt of sample. However, the date when the analysis started and date when the analysis ended, is not mentioned anywhere in the report.
21. Therefore, I can assume that the sample was CA No. 52/2017 Rakesh Kumar Vs. The State (Delhi Administration) 8/13 examined on the date when the report was prepared as no evidence was led in this regard by the prosecution. In all, 13 dead insects are reported by the PA. The sample was never sent to CFL and therefore, I have to rely on this report.
22. The Ld. Counsel for the accused/appellant has relied upon the decisions of Hon'ble Punjab & Haryana High Court and Hon'ble Delhi High Court to contend that various high courts have concluded that presence of living or dead insects, at the time of testing by the Public Analyst can also be a result of improper storage in the open, before the sample was taken and the insects could have developed later on after the sample had been taken and before Public Analyst had analyzed the same.
23. In these circumstances, was it relevant that the Food Inspector ought to have mentioned in his initial report that he found or suspected the presence of live or dead insect in the food article when the samples were seized.
24. Ld. Counsel for the appellant/accused has relied upon the decisions in Food Inspector Vs. Harikesh Gupta, 2014 (2) FAC 282, Ghansham Dass Vs. The State of Haryana, Criminal Revision No. 1200 of 1980 decided on 17.05.1983, State Vs. Anil Kumar Sodhi & Anr, 2009 [2] JCC 904, The State of Maharashtra Vs. Jethalal Devshi & Others, Criminal Revision No. 75 and 76 of 1977 decided on 24.11.1977.
25. Therefore, the aforesaid decisions clearly indicate that the different courts have consistently held that when there is no evidence to show the presence of a live or dead insect on the date of taking of sample, the courts have given benefit of doubt CA No. 52/2017 Rakesh Kumar Vs. The State (Delhi Administration) 9/13 to the accused on the basis that insect infestation can occur any time during the storage of an article and the samples can develop insects after having being sealed by the FI. The same does not indicate adulteration by the vendor.
26. Ld. SPP for the Department has, on the other hand, relied upon the decision of the Hon'ble Supreme Court of India in Jagdish Prasad Vs. State of Delhi & Anr decided on 15.09.1981. In the said case, the accused was convicted by the Ld. Magistrate but acquitted by the Ld. ASJ. The High Court had set aside the said order of acquittal and restored the conviction. The Hon'ble Supreme Court of India noted that evidence on the whole could be accepted, as justifying the conclusion that on the date on which the sample was taken, it was insect infested within the meaning of Section 2(ia) (f) of the Act, dismissing the argument that since there was no evidence on record to show that sample was highly infested on the date it was taken and because there was no evidence on record to show what was the state of sample on the date it was taken, accused was entitled to be acquitted.
27. I have considered the aforesaid decision. Unfortunately, none of the decisions cited by the counsel for the appellant take note of the decision of the Hon'ble Supreme Court of India in Jagdish Prasad (Supra) and to that effect, none of the courts had the opportunity to deal with the said decision and I do not have the benefit of the view that might have been taken by the Hon'ble High Courts dealing with the aforesaid cases, if these judgments have been cited before them. However, I have CA No. 52/2017 Rakesh Kumar Vs. The State (Delhi Administration) 10/13 seen the said decision and I have noticed the following peculiarity in the said case:
28. firstly, as per the said decision of the Hon'ble Supreme Court of India, the sample was taken on 03.10.1970 and 3 days later, the sample was found insect infested by the PA. The report further recorded that 23.8% of pieces of Amchoor Sabat were found to be insect infested. Further, to my mind, there was no evidence on record to show what was the state of sample on 03.10.1970 as noticed by the Hon'ble Supreme Court of India in para 4 of the judgment.
29. Coming back to the facts of the present case, firstly, the report in the present case is dated 14 days after the date of taking of sample with no indication as to when the PA had opened the sample and observed the living and dead insects whether they were spotted on 22.05.2001 or on 06.06.2001 and there is a gap of about 12 days between the 2 dates which is sufficient for insects to develop in ordinary course.
30. Secondly, there is categorical admission by PW-2 and PW-3 that on the date when the sample was taken, they had not seen any insect dead or alive in the sample being taken.
31. Therefore, this is not a case where it cannot be said as to what was the state of sample on the date it was taken, rather, the admission made by PW-2 and PW-3 indicates that on the date when the sample was taken, no insect was visible to the naked eye.
32. Thirdly, PW-2 FI DV Singh in his cross examination admitted that:
CA No. 52/2017Rakesh Kumar Vs. The State (Delhi Administration) 11/13 The said Jhaba was not made clean and dry on the spot as it was already clean and dry.
33. The said fact is also admitted by PW-1 R.P. Singh in his cross examination and the relevant portions is as follows:
I have not cleaned the said jhaba since it was already clean and dry.
34. The fact that the Jhaba was not made clean and dry is also admitted by PW-1 and PW-2. Therefore, there was a breach of rules as far as method of taking of sample was concerned and I cannot say with any certainity today that non cleaning of Jhaba could have resulted in presence of insect on the 15th day. The law provides for use of clean apparatus only to prevent the sample getting contaminated in one form or other and this is a classic case where accused would be entitled to benefit of doubt because there is an admission by the witnesses that the Jhaba used for drawing the sample was not made clean and dry at the spot. It is possible that use of unclean Jhaba may have resulted in contamination and subsequent infestation, as, at least, on the date when the sample was taken, no insect was visible to the naked eye. Period of 14 days is sufficient for development of insects in a food article and therefore, the decision in Jagdish Prasad (Supra) is distinguishable in this regard.
35. Although, Ld. Counsel for the appellant further tried to urge that the date when the sample was taken, no certified labs or method for testing was prescribed, in my view, the presence of dead or living insect in a food article like Kaju is a claim that can be answered even by physical examination and no method of test CA No. 52/2017 Rakesh Kumar Vs. The State (Delhi Administration) 12/13 may be required to come to such a conclusion. Therefore, the presence of certified labs or prescribed method would have no bearing on the facts and circumstances of the present case. At least, this argument is therefore, rejected. However, considering the observations made hereinabove viz-a-viz the method of sampling and the evidence as to the state of sample on the date it was taken, the accused is entitled to be acquitted.
36. It is ordered accordingly. TCR be returned.
37. Appeal file be consigned to Record Room.
Dictated in the open court (Harjyot Singh Bhalla)
on 20.02.2023 ASJ-04, New Delhi
CA No. 52/2017
Rakesh Kumar Vs. The State (Delhi Administration) 13/13