Delhi District Court
Lucky Malhotra S/O Sh.Ashok Malhotra vs The State (Delhi Administration) on 26 November, 2011
1
IN THE COURT OF SH. J. R. ARYAN
ADDITIONAL SESSIONS JUDGE, NEW DELHI
Date of Institution: 19.04.2011
Date of judgment reserved on: 24.11.2011
Date of decision: 26.11.2011
CA No. 28/11
IN THE MATTER OF:
1. Lucky Malhotra S/o Sh.Ashok Malhotra
M/s. Malhotra Dairy
14, DDA Market, AGCR Enclave,
Delhi92. ..... Appellant/Petitioner
Versus
1. The State (Delhi Administration)
PFA Department, A20, Lawrence Road,
Indl. Area, Delhi. ...... Respondent
JUDGMENT: Present appeal against conviction under Section 7/16 of the Prevention of Food Adulteration Act assails conviction judgment dated 25/03/2011 and then order on sentence dated 04/04/2011 whereby appellant has been imposed a sentence of Rigorous Imprisonment for 6 months and a fine of Rs. 10,000/ with default sentence. Conviction judgment has been passed in respect of a sample food article "Paneer" taken from appellant/accused was reported adulterated by the Public Analyst as the sample did not confirm to standard when the fat contents of the sample article was found 46.30% as against a minimum required of 50%. Accused when summoned in this 2 prosecution and appeared before the court, he exercised right under Section 13 (2) of the Prevention of Food Adulteration Act and accordingly, counterpart sample of this food article Paneer was sent to Central Food Laboratory. Certificate of Director, CFL also described sample adulterated as not confirming to standards of "Chhanna" and "Paneer" as per PFA Rules. Certificate shows that milk fat in the sample article was found 44.23% as against a minimum prescribed of 50% of dry matter. Prosecution ended in conviction judgment after its witnesses LHA Sh. S P Bhardwaj, Food Inspector Dr. Pramod Kothekar and Food Inspector Jagdish Prasad were examined and incriminating evidence brought on record by the prosecution was put to accused for his explanation wherein accused in a statement under Section 313 CrPC pleaded a defence that sample was not representative one as it could appear from variation in two reports i.e. report of the Public Analyst and the certificate of CFL.
Counsel Sh. M K Gupta appearing for appellant in this appeal argued and emphasized a sole point that accused had been prejudiced in his right under Section 13(2) of the Act in getting the counterpart sample examined from CFL for its correct and accurate analysis and report. Counsel argued that this prejudice arose from the fact that whereas sample had been taken on 11/04/05 and Public Analyst had examined sample and had given its report dated 05/05/05 but then prosecution was launched by Dr. Pramod Kothekar, Food Inspector only on 07/10/05. Accused could exercise his right under Section 13 (2) of the Act only when he appeared in this case before the court on 27/10/05 and counterpart sample was got dispatched to CFL and then CFL certificate dated 03/12/05 was received. Certificate further shows that sample was analysed from 01/12/05 to 03/12/05. Counsel submitted that sample 3 article Parneer being a milk product, it would not retain its potential constituents and would start decomposing after lapse of certain period despite a preservative "formalin" was added in the sample. Ld. Counsel relied upon a Hon'ble Supreme Court's judgment in Gheesa Ram's case (AIR 1967 SC 970) which was relied upon by Hon'ble Delhi High Court in a case of Chaman Lal Vs. State 1972 FAC 292 in support of a proposition of law that an unreasonable delay in filing the prosecution in respect of a milk product sample article would prejudice the right of accused in getting counterpart sample analysed from CFL. Ld. Counsel relied upon another Hon'ble Delhi High Court's judgment in a case State Vs. Anil Batra 2008 (1) FAC 191 and another case State Vs. V K Mattu 2008 (1) FAC 320 and both these judgments are in support of the above stated defence contention. Ld. Counsel further relied upon Hon'ble Delhi High Court's judgment reported as State Vs. Vinod Kumar Gupta 2010 (2) JCC 957 which also supports that above referred contention of the appellant. Ld. Counsel also referred to a judgment passed by this court in another criminal appeal No. 17/2010 Raj Kumar Jain Vs. State decided on 16/10/10 wherein conviction for sample of Paneer found adulterated due to deficiency in fat contents was rendered unsustainable because of violation of right of accused under Section 13 (2) of the Act.
Counsel argued on other point that whereas Public Analyst had found fat contents in the sample product at 46.30% but then Central Food Laboratory report showed fat contents at 44.23% and variation in fat contents as per two reports could be attributed to faulty sampling process. Ld. Counsel drew attention of this court to the testimony of witnesses that sample Paneer when 4 taken in this case, it was in the shape of a brick and taken out of a deep freezer. Counsel argued that though witnesses deposed that Paneer was cut into small pieces by a clean and dry knife as has been deposed by the witnesses but then frozen status of the sample article could not have ensured homogeneity of the contents of the sample merely by cutting some part of the sample Paneer brick into small pieces. Cross examination statement by PW2 that Paneer after being taken out from a deep freezer was kept at room temperature for about 510 minutes was an evidence by way of an improvement and thus accused could be said to have been prejudiced and atleast a reasonable inference was liable to be drawn and conviction was unsustainable.
Ld. APP Mr. Masood, on the other hand, argued for sustainability of the conviction. He argued that defence pleaded on behalf of the accused during trial have been duly considered and there is no legality in the finding. There was no question of taking comparison of two reports i.e. report of the Public Analyst and the certificate from CFL when in terms of Section 13 (5) of the Act, the certificate from CFL superseded the Public Analyst Report and was of a conclusive nature. It is argued that where sample had failed to pass for a standard for Paneer as given in the PFA Rules (Rules A.11.02.05) then there was no reason to interfere in this conviction. It has been further argued that once the counterpart sample was found fit for its analysis by the Central Food Laboratory then there was no scope for the appellant to contend that he was prejudiced by the delay in getting counterpart sample examined by Central Food Laboratory. Once accused opted and exercised that right of getting counterpart sample examined by Central Food Laboratory and Central Food Laboratory found sample in a fit condition and did provide its report then accused was not 5 entitled to raise a point of delay in examination of the counterpart sample at Central Food Laboratory.
Point for determination in this appeal arises if appellant accused was prejudiced in exercise of his right U/s 13 (2) of the PFA Act. It has been held by ld trial court in conviction judgment that once the counter part sample Paneer was found fit to analysis when examined in CFL and report has been received then no grievance of delay in examination of sample was to be taken in to consideration and reliance on Chaman Lal's case 1972 FAC 292 (Delhi) by the defence was misplaced because besides delay in filing prosecution in that case the second counter part sample had been found unfit for examination. To my opinion the aspect of right of an accused conferred U/s 13 (2) of the Act is not to be examined solely from the point of view that counter part sample had been found fit for analysis and examination report was sent by the CFL. Particularly when the sample article found deficient for fat contents, deficiency was marginal. While deciding another appeal in a case Raj Kumar Jain Vs State Criminal appeal No.17/10 decided on 16.10.2010 this court relied upon a Delhi High Court judgment reported as MCD & Ors Vs Suresh Kumar 1972 FAC 495 for a proposition of law that an inordinate delay in launching of the prosecution in such a case of sample article being a milk or a milk product may result in rendering the sample not to be of a representative nature as composition of sample food article was likely to change with the passage of time. In that Suresh Kumar's case reliance was placed upon Ghisa Ram's 6 case (AIR 1967 S.C 970) The same very proposition came up for consideration in two acquittal appeals before High Court of Delhi. The first case is State Vs Anil Batra & Ors 2008 (1) FAC 191 and second case State Vs V.K.Muttoo & Ors 2008 (1) FAC 320. In both these appeals sample article was paneer. In Anil Batra's case Public Analyst had found milk fat on dry weight basis at 48.05% which was however less than the minimum prescribed of 50%. Accused had exercised right U/s 13 (2) of the Act and counter part sample when examined at CFL Mysore, a certificate was received to the fact that sample did not confirm to prescribed standards. Public Analyst report in that case was dated 4.8.1989 and certificate from Central Food Laboratory was dated 9.2.1990. Acquittal by trial court was on a findings that delay in causing counter part sample to be examined at CFL caused prejudice to right of the accused conferred U/s 13 (2) of the Act. Almost identical where the facts in other case of M.K.Muttoo. While upholding the acquittal judgment it came to be held by Hon'ble High Court, ''However, in my view the acquittal of the respondents in the present case in view of the decision of the Hon'ble Supreme Court in Ghisa Ram's case (supra) cannot be said to be unjustified because the crux of the judgment of the Hon'ble Supreme Court is that prosecution in these kinds of cases should be launched promptly. In that case reference was also made to the opinion of an expert that if a food article, like curd, is kept in a refrigerator and a preservative is added to the sample the total period which may be available for making analysis of that sample without decomposition will be six months. In the present case, the third sample of the paneer was sent 7 to the Central Food Laboratory after the expiry of more than six months from the date when it was taken from the shop of the respondent No.1 and there is no explanation forthcoming from the side of the prosecution for that delay. It is admitted by the prosecution that the sample was not kept in refrigerator but was kept in at room temperature till the time from taking of the samples to sending it to CFL. PW5 FI, Rajesh Kumar in his crossexamination has categorically stated that their department had no refrigerator in the office and the sample bottles were kept by them at ordinary room temperature in steel almirah. In these circumstances, if the learned trial court has come to the conclusion that the accused's right under section 13(2) of the Act had got frustrated it cannot be said that this conclusion of the trial court is unreasonable.'' Appellant counsel also relied upon another Delhi High Court judgment in a case State Vs.Ramesh Chand 2010 (2) JCC 1250. In this case sample paneer was reported adulterated by the Public Analyst when milk fats were found at 26.75%. Counter part sample when examined at CFL milk fats were reported 39.7%. Acquittal by sessions court was based upon a finding that there was delay in filing of the complaint which resulted in denial of right of accused U/s 13 (2) of the Act. Complaint in that case had been filed after four months and sessions court recorded a finding that the sample paneer would have decomposed with the passage of the time. Acquittal on that finding was held noninterferrable in that state appeal. Ld APP could not counter argue these points. As seen above in the present case sample was drawn on 11.4.2005 when a team of PFA officials headed by LHA visited the shop premises No.14 DDA Market AGCR 8 Enclave, Delhi where appellant accused Lucky Malhotra was found conducting business in food articles. Public Analyst took up examination of th the sample on 19 April 2005 and completed that analysis on 21.4.2005 and gave his report Ex.PW1/G on 5.5.2005. Sanction for prosecution was obtained on 30.9.2005 and then complaint was filed on 27.10.2005. It was a delay of around six months in filing of the complaint since the sample had been drawn. Ratio of above referred Delhi High Court judgments provides that such a delay in launching of the prosecution in respect of a milk product sample seriously prejudiced right of accused to get a counter part sample examined. In this case counter part sample was received in CFL on 8.11.2005 and analysis certificate is dated 3.12.2005.
Ld defence counsel pointed out that whereas the public analyst report showed milk fat contents at 46.30% the CFL certificate showed milk fat at 44.23% and variation in two reports could suggest to some flaw in sampling procedure. Counsel pointed out from the testimony of witnesses that sample when drawn was taken out from a deep freezer. It was none of the prosecution case either in the complaint or from the testimony of witnesses if paneer when taken out of a deep freezer was allowed to melt in a normal temperature for some time and then a process of sampling by homogenizing was started. It is only complainant F.I Dr.Promod Kothekar PW2 deposed in cross examination that paneer after being taken out from deep freezer was kept for about 510 minutes at room temperature and then its sampling process was started. Witness further deposed that he did 9 not remember if paneer was dried with the help of cloth or paper to remove its moisture during that process of sampling. Witness admitted that paneer was in a brick shape of around 1 Kg. Defence counsel appears to be justified that frozen paneer immediately taken up for its sampling could have affected the representative nature of the sample and i.e reflected from the CFL certificate where fat contents of counter part sample were found deceased by approximately 2 %. Its benefit should be given to the appellant.
Ld MM has not examined all these aspects and conviction judgment accordingly suffers illegality and is unsustainable. Appeal is allowed.
Announced in the Open (J.R.ARYAN) court on 26.11.2011. ADDITIONAL SESSIONS JUDGE (01) NEW DELHI DISTRICT, NEW DELHI 10 CA No. 28/11 . Lucky Malhotra S/o Sh.Ashok Malhotra M/s. Malhotra Dairy 14, DDA Market, AGCR Enclave, Delhi92. ..... Appellant/Petitioner Versus
2. The State (Delhi Administration) PFA Department, A20, Lawrence Road, Indl. Area, Delhi. ...... Respondent 26.11.2011 Present: Appellant in person with counsel Sh.A.K.Padhy, Chief Prosecutor for deptt. of PFA.
Vide separate judgment appeal allowed and conviction judgment is set aside. Copy of judgment and trial court record be sent to the Ld trial court. Appeal file be consigned to record room.
(J.R.ARYAN) ADDITIONAL SESSIONS JUDGE (01) NEW DELHI DISTRICT, NEW DELHI 26.11.2011.