Delhi District Court
Fi vs . Kishan Chand Etc. Page 1 Of 25 on 5 October, 2013
IN THE COURT OF SHRI BALWANT RAI BANSAL
ADDITIONAL CHIEF METROPOLITAN MAGISTRATEII,
PATIALA HOUSE COURTS, NEW DELHI
C.C. No. 10/99
Food Inspector
Department of PFA
Govt. of NCT of Delhi
A20, Lawrence Road, Indl. Area, Delhi - 35
................. Complainant
Versus
1. Sh. Kishan Chand S/o Sh. Changa Mal
M/s Adarsh Store, Shop No. 26,
Market, West Patel Nagar, New Delhi
R/o 3/7, West Patel Nagar,
New Delhi 8
..................VendorcumProprietor
2. M/s Gujarat Cooperative Milk Marketing Federation Ltd.
1210, New Delhi House, 27,
Barakhamba Road, New Delhi
.................. Selling agent of NDDB
3. Sh. K.K. Bhadra, Asstt. Manager Sales
Gujarat Cooperative Milk Marketing Federation Ltd.
1210, New Delhi House, 27,
Barakhamba Road, New Delhi
.................. Nominee
CC No. 10/99
FI Vs. Kishan Chand Etc. Page 1 of 25
4. M/s National Dairy Development Board
Anand, India
.................. Manufacturing Co.
5. Sh. S. Nagaraja, Quality Control Officer
National Dairy Development Board, Noida (Ghaziabad)
.................. Nominee of
Manufacturing Co.
6. Sh. N.K. Chawla
National Dairy Development Board
.................. Marketier
COMPLAINT U/S 16 OF THE PREVENTION OF FOOD
ADULTERATION ACT, 1954
Serial number of the case : 10/99
Date of the commission of the offence : 23.08.1998
Date of filing of the complaint : 03.03.1999
Name of the Complainant, if any : Shri R.K. Ahuja, Local (Heath)
Authority
Offence complained of or proved : For violation of provision of
Section 2 (ia) (a) & (m) of PFA
Act, punishable U/s 16 (1) r/w
Section 7 of PFA Act 1954.
Plea of the accused : Pleaded not guilty
Final order : Acquitted
Arguments heard on : 06.09.2013
Judgment announced on : 05.10.2013
J U D G M E N T
1. The present complaint has been filed on 03.03.1999 by the Delhi Administration through LHA Sh. R.K. Ahuja against the accused CC No. 10/99 FI Vs. Kishan Chand Etc. Page 2 of 25 persons. It is stated in the complaint that on 23.08.1998 at about 3.30 PM, FI Sh. Arun Kumar purchased a sample of 'Imported Refined Rapeseed Oil', a food article for analysis from accused Kishan Chand S/o Changa Mal at Adarsh Store, Shop No. 26, New Market, West Patel Nagar, New Delhi, where the said food article was found stored for sale and where accused Kishan Chand was found conducting the business of the said food article at the time of sampling. The sample consisted of 3x1 litres of pack 'Imported Refined Rapeseed Oil', taken as such having the label declaration. The sample was taken under the supervision of LHA Sh. R.K. Ahuja. The Food Inspector divided the sample then and there into three equal parts by putting them in three separate clean and dry bottles and each bottle containing the sample was separately packed, fastened and sealed according to the PFA Act and Rules. The signatures of vendor were obtained on the LHA slip and the wrapper of the sample counterparts. Notice was given to accused Kishan Chand and price of sample was also given to him. Panchnama was also prepared at the spot. All these documents prepared by FI Sh. Arun Kumar were signed by accused Kishan Chand, the vendor and the other witness namely Sh. O.P.S. Ahlawat, 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 condition were deposited with LHA. The Public Analyst CC No. 10/99 FI Vs. Kishan Chand Etc. Page 3 of 25 analyzed the sample and opined that "The sample does not conform to standards laid down under Item No. A.17.18 read along with A.17.15 of Appendix 'B' of PFA Rules, 1955 because sample shows presence of Castor Oil." It is injurious to health and likely to cause death.
3. It is further stated that during investigations, it was found that Kishan Chand S/o Sh. Changa Mal is the vendorcumproprietor of M/s Adarsh Store, Shop No. 26, New Market, West Patel Nagar, New Delhi and since the vendor failed to produce any bill/memo etc. in support of his claim about purchase of sample commodity from New Delhi Distributor, 87, Nawab Road, Basti Harphool Singh, Delhi6, therefore, the said firm M/s New Delhi Distributor has not been arrayed as delinquent party. The label declaration on the sample commodity reveals that the commodity was manufactured and marketed by National Dairy Development Board, Anand and the Gujrat Cooperative Milk Marketing Federation Ltd. is the sole selling agent of National Dairy Development Board and its nominee at Delhi Mr. K.K. Bhadra. Sh. S. Nagarajan, Quality Control Officer of NDDB has been nominated to be persons incharge of and responsible for the said company for the conduct of its business at Ghaziabad and Sh. N.K. Chawla, Executive Director of NDDB is the person who has been overseeing the oil products of NDDB and looking after the sale activity of NDDB. Both the nominee of NDDB in addition to Gujarat Cooperative Milk Marketing Federation Ltd. and NDDB are liable for adulteration found in the sample commodity. After conclusion of investigation, the CC No. 10/99 FI Vs. Kishan Chand Etc. Page 4 of 25 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) (b) (c) (f) of PFA Act, punishable U/s 16 (1) (1A) r/w Section 7 of the PFA Act 1954.
4. All accused were summoned vide order dated 03.03.1999. All accused appeared and were admitted to bail except accused no. 6 who was discharged from the present case by the Hon'ble High Court of Delhi. An application U/s 13 (2) of the PFA Act was moved on behalf of accused no. 4 National Dairy Development Board (NDDB), which has been impleaded as manufacturing company of the sample commodity 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 Central Food Laboratory, Calcutta for analysis. Director, CFL on analysing the second counterpart of the sample in question opined vide his Certificate dated 28.04.1999 that "The sample of Imported Refined Rapeseed Oil is adulterated".
5. It is pertinent here to mention that during the proceedings of the present case, accused no. 1 expired and proceedings against him stood abated vide order dated 06.09.2004. Accused no. 6 was already discharged by the Hon'ble High Court of Delhi.
6. It is also relevant to note that the Ld. Predecessor vide order dated 29.05.2007 discharged the accused no. 2 to 5 from this case, but the CC No. 10/99 FI Vs. Kishan Chand Etc. Page 5 of 25 said order was set aside by the Ld. Appellate Court vide order dated 11.11.2009 and the case was remanded back to this court. Accordingly, Notice for violation of provisions of Section 2 (ia) (a) & (m) of PFA Act, punishable U/s 16 (1) r/w section 7 of PFA Act were framed against the accused no. 2 to 5 separately vide order dated 25.01.2010 to which they pleaded not guilty and claimed trial.
7. Thereafter, in order to prove its case, the prosecution examined three witnesses namely FI Sh. Arun Kumar who conducted the sample proceedings as PW1, Sh. R.K. Ahuja, who filed the present complaint and under whose supervision the sample proceedings were conducted as PW2 and FI O.P.S. Ahlawat who was made a witness in the sample proceedings as PW3 and PE was closed vide order dated 25.05.2011.
8. Statement of all the contesting accused persons U/s 313 Cr.P.C. were recorded separately on 26.08.2011 wherein they claimed themselves to be innocent and opted to lead evidence in their defence.
9. Accused no. 3 has examined himself as DW1 in his defence.
No other witness was examined by the accused persons and accordingly DE was closed vide order dated 13.12.2012.
10. I have heard the Ld. Counsel for the parties and perused the record carefully.
11. Ld. Counsel for accused no. 2 & 3 contended that as per the certificate of Director, CFL dated 28.04.1999, the sample was found conforming to all the standards under PFA Act and Rules, however in the CC No. 10/99 FI Vs. Kishan Chand Etc. Page 6 of 25 column of opinion, it was reported to be adulterated and when the Ld. MM, New Delhi sought clarification in this regard, then the Director, CFL vide his letter dated 20.05.1999 clarified that his certificate had omitted to mention that Flash Point experiment gave a value 240 Deg C which was lower than the specification and hence the sample was found to be adulterated. It is argued by him that it is only the certificate of CFL which is admissible in evidence and not his subsequent letter by which he made clarifications on the asking of the Court and no reliance can be placed upon the said clarificatory letter of the Director, CFL. He further argued that as per report of Public Analyst, the sample was found adulterated due to presence of Castor Oil, whereas the Director, CFL did not find it in the sample and similarly as per report of PA, the Flash Point was as per standards, but it failed in CFL report and as such reports of both the Experts are opposite to each other which shows that different samples were sent to both the Experts. He further argued that apart from aforesaid contradictions, there are vast variations between two reports in respect of different parameters of the sample commodity, which suggests that representative sample was not taken in the present case and on the basis of un representative sample, accused cannot be held guilty. It is also argued by Ld. Counsel for accused no. 2 and 3 that in the complaint it was averred that sample was packed in three glass bottles after dividing into three equal parts, but the report of PA and CFL shows that the sample reached to them in Tetra Packs which again shows that different samples were sent to both CC No. 10/99 FI Vs. Kishan Chand Etc. Page 7 of 25 the laboratories for analysis and that is why there are huge variations in reports of both the Experts.
12. In the written submissions filed on behalf of accused no. 4 & 5, it is submitted that accused no. 4 has been impleaded merely on the basis of label declaration of sample commodity wherein name of accused no. 4 has been shown as manufacturer of the sample commodity, but there is no evidence on record to connect the sample commodity to accused no. 4. It is argued that sample commodity does not belong to accused no. 4 of which accused no. 5 is the Nominee and, therefore, they are liable to be acquitted. It is further submitted that as per the Public Analyst report, the sample was found to be adulterated as it contained traces of Castor oil, whereas as per the Certificate issued by the Director, CFL dated 28.04.1999, the test for Castor oil was negative. Further, although the sample was found to be in conformity with the standards as laid down in item A.17.18 r/w A.15.15 of Appendix B of PFA rules, but the Director, CFL still opined that sample of rapeseed oil was adulterated and on clarification, the director CFL vide its communication dated 20.05.1999 reported the Flash Point Experiment to be 240 Degree C i.e. lower than the specification, while the Public Analyst had found the same to be 260 Degree C i.e. within specification and apart from this the other tests conducted by the two laboratories are also in great variance from each other and as such there is complete contrast in two reports which sufficiently suggests that the samples sent by the Food Inspector were not representative in nature and in view of two divergent CC No. 10/99 FI Vs. Kishan Chand Etc. Page 8 of 25 reports, the accused are entitled to benefit of acquittal. It is further submitted that a certificate issued by the Director, CFL is admissible in respect of its contents only and there is no provision to consider the separate opinion of the Director, CFL which was sought by way of a clarification letter by the Ld. MM in the present case. Reliance has been placed on Jamna Dass Vs. The State, Criminal Revision 254D/1966 by the Hon'ble High Court of Delhi . It is argued that the Court while accepting the second opinion of the Director CFL has caused great prejudice to the accused persons apart from the action itself being illegal and without jurisdiction. It is further argued that the subsequent letter sent by the Director, CFL does not reflect in any manner the evidence/data which was taken into consideration for giving the said finding and the complainant cannot simply rely on the explanation provided by the Director, CFL in its letter which did not even form part of his original test analysis and since the said clarification is not a Certificate, as envisaged under the law, the same cannot be taken as final, benefit of which ought to be extended to the accused.
13. On the other hand, Ld. SPP for complainant has argued that variations in the report of Public Analyst and Director, CFL does not make any difference. He contended that as per report of Director, CFL the sample was found adulterated and the report of Director, CFL being conclusive, supersedes the report of the PA and, therefore, the accused can not be given the benefit of doubt on account of variations in report of two experts. He CC No. 10/99 FI Vs. Kishan Chand Etc. Page 9 of 25 further argued that so far the clarification made by the Director, CFL at the asking of Ld. Predecessor Court vide his communication dated 20.05.1999 is concerned, the same became final in view of the orders of the Ld. Appellate Court dated 11.11.2009 by which order of discharge of accused no. 2 to 5 passed by the Ld. Predecessor Court was set aside and the revision filed by the State was accepted and, therefore, the argument of Defence Counsels that Ld. Predecessor Court could not have sought the opinion of Director, CFL or the clarification made by the Director, CFL vide his communication dated 20.05.1999 is not admissible in evidence does not hold good and it is very much admissible. He further vehemently argued that prosecution has been able to prove its case against the accused persons and, therefore, accused are liable to be convicted.
14. All the PWs have deposed more or less as per the averments made in the complaint. PW1 FI Arun Kumar who is the star witness and conducted the sample proceedings deposed in his examinationinchief that on 23.08.1998 at about 3.30 PM, he along with FI O.P.S. Ahlawat under the supervision and direction of Sh. R.K. Ahuja, LHA went to M/s Adarsh Store, Shop No. 26, New Market, West Patel Nagar, New Delhi, where accused Kishan Chand was found conducting the business of food articles including 'Imported Refined Rapeseed Oil' in sealed tetrapack of one liter bearing identical label declaration for sale for human consumption. He further deposed that he disclosed his identity and intention for taking the sample of Imported Refined Rapeseed Oil, for analysis to which accused CC No. 10/99 FI Vs. Kishan Chand Etc. Page 10 of 25 agreed and thereafter at about 3.30 PM, he purchased 3x1 liter sealed tetrapack of Imported Refined Rapeseed Oil bearing identical label declaration on payment of Rs. 168/ vide vendor's receipt Ex. PW1/A. He further deposed that he divided the sample into three equal parts by taking one tetrapack of Imported Refined Rapeseed Oil as such in one counterpart and each counterpart containing the sample was separately packed, fastened, marked and sealed as per PFA Act and Rules. It is further deposed by PW1 that notice in Form VI Ex. PW1/B and Panchnama Ex. PW1/C were prepared at the spot and a copy of notice was also given to the vendor who disclosed the source of purchase of the sample commodity on this notice and accordingly a notice U/s 14A of PFA Act Ex. PW1/D was prepared at the spot addressing to M/s New Delhi Distributor and was sent to the addressee through registered post and all the aforesaid documents Ex. PW1/A to Ex. PW1/C were read over and explained to the vendor who after understanding signed the same. PW1 further deposed that on 24.08.1998 i.e. next working day, one counterpart of the sample was deposited with PA vide receipt Ex. PW1/E and remaining two counterparts were deposited with LHA on the same day vide receipt Ex. PW1/F. He further deposed that PA report was received according to which the sample was not conforming to the standard and accordingly he started investigations. He further deposed that after conclusion of investigations, the entire case file was forwarded by the concerned LHA to the then Director, PFA who accorded requisite consent for initiating prosecution against the accused persons.
CC No. 10/99 FI Vs. Kishan Chand Etc. Page 11 of 2515. During his deposition, PW1 has also placed on record PA's report as Ex. PW1/G, reply received by him during investigation from the vendor as Ex. PW1/H, reply received from M/s New Delhi Distributors as Ex. PW1/I by which they denied the sale of sample commodity to the vendor, copy of nomination in favour of K.K. Bhadra of GCMMF as Ex. PW1/J, reply received from NDDB as Ex. PW1/J1 along with copy of nomination Ex. PW1/J2 by which it was informed that S. Nagaraja was the Nominee of the said firm and N.K. Chawla was their Executive Director and incharge and responsible for day to day affairs of the said firm and copy of nomination and consent given by Director, PFA for prosecution against the accused persons as Ex. PW1/K.
16. PW2 R.K. Ahuja, under whose supervision the sample proceedings were conducted has corroborated the version of PW1 in his examinationinchief and has placed on record letter of accused GCMMF issued in connection of another case as Ex. PW2/A, copies of 2 bills as Ex. PW2/B & Ex. PW2/C which disclose that GCMMFL is the sole selling agent for NDDB, complaint filed by him as Ex. PW2/D, copy of intimation letter sent to accused persons through registered post as Ex. PW2/E and photocopies of postal registration receipts which collectively are Ex. PW2/F.
17. PW3 FI Sh. O.P.S. Ahlawat who accompanied the Raiding Party and was made a witness in the sample proceedings in his evidence has also more or less deposed on the similar lines as deposed by PW1 & PW2 CC No. 10/99 FI Vs. Kishan Chand Etc. Page 12 of 25 in their examinationinchief.
18. Accused no. 2 M/s Gujrat Cooperative Milk Marketing Federation Ltd. in its statement recorded U/s 313 Cr.P.C. through its AR Sh. H. K. Parmar feigned ignorance regarding the sample proceedings stating that Firm has no knowledge. However, it was contended that firm is innocent and no reliance can be placed upon the report of Director, CFL due to bad sampling.
19. Accused no. 3, who has been impleaded as Nominee of M/s Gujarat Cooperative Milk Marketing Federation Ltd.(accused no. 2 herein), in his statement recorded U/s 313 Cr.P.C. also stated that he has no knowledge about the sample proceedings as he was not present on the spot. However, he contended that the sample was taken in original sealed condition and not tampered in any manner and were bearing the label declaration "packed and marketed by NDDB". He further contended that Gujarat Cooperative Milk Marketing Federation Ltd. was the sole selling agent for Dhara brand of edible oil packed and marketed by NDDB and it received the sample commodity from NDDB vide dispatch order cum delivery challan No. NO/NOD/11845 dated 18.08.1998.
20. Accused no. 4 who has been impleaded as manufacturing company of sample commodity and accused no. 5, who has been impleaded as Nominee of accused no. 4 company, in their statement recorded U/s 313 Cr.P.C. though feigned ignorance about the sample proceedings, but they contended that there is nothing to connect the Imported Refined Rapeseed CC No. 10/99 FI Vs. Kishan Chand Etc. Page 13 of 25 Oil to NDDB. It was also contended that as per report of Director, the standards of parameter of the sample was conforming to the PFA Standards, but the opinion was given in mechanical manner and subsequent CFL report was an after thought and no reliance can be placed on the said report. It was further contended that both the reports of PA and CFL are divergent as the representative sample was not taken by the FI.
21. It is not in dispute that on 23.08.1998 at about 3.30 PM, a sample of 'Imported Refined Rapeseed Oil' was lifted by the FI Arun Kumar from accused no. 1 from his shop M/s Adarsh Store, Shop No. 26, New Market, West Patel Nagar, New Delhi. The sample of 'Imported Refined Rapeseed Oil' was sent to the Public Analyst for analysis, who vide his report dated 02.09.1998 found the sample not conforming to the standards as laid down under Item No. A.17.18 r/w A.17.15 of Appendix B of PFA Rules, 1955 because sample showed the presence of Castor oil. The report of Public Analyst has been proved on record as Ex. PW1/G on the basis of which present complaint has been launched against the accused persons. As per case of prosecution, though the vendor/accused no. 1 disclosed the source of purchase of the sample commodity at the time of sample proceedings stating that he had purchased the sample commodity from M/s New Delhi Distributor, but since the vendor failed to produce any bill/ cash memo in support of his claim, the said firm M/s New Delhi Distributor has not been impleaded as delinquent party. It is further case of prosecution that as per label declaration of sample commodity, the same CC No. 10/99 FI Vs. Kishan Chand Etc. Page 14 of 25 was manufactured and packed by accused no. 4 National Dairy Development Board (NDDB) of which accused no. 5 is the Nominee and accused no. 2 M/s Gujrat Cooperative Milk Marketing Federation Ltd. (GCMMF) of which accused no. 3 is the Nominee is the sole selling agent of accused no. 4 NDDB and all the aforesaid accused persons are liable to be convicted for the adulteration found in the sample commodity.
22. Admittedly, the accused no. 1/vendor from whom the sample of 'Imported Refined Rapeseed Oil' was lifted by the Food Inspector expired during the proceedings of the present case. It is also not in dispute that at the time of sample proceedings, several documents including notice in Form VI Ex. PW1/B were prepared at the spot by the Food Inspector. The Food Inspector Arun Kumar reproduced the contents of label declaration of the sample commodity in notice in Form VI Ex. PW1/B, copy of which was also given to the accused no.1/vendor. As per label declaration of the sample commodity as reproduced in notice Ex. PW1/B, the sample commodity was packed and manufactured by accused no. 4 NDDB, Anand. However, the accused no. 4 of which the accused no. 5 is the Nominee in their statement U/s 313 Cr.P.C. as well as in the written submissions have taken a plea that sample commodity does not belong to accused no. 4 NDDB and there is no evidence to connect the sample commodity to NDDB.
23. In this regard, PW1 FI Arun Kumar who conducted the sample proceedings categorically stated in his evidence that on the basis of CC No. 10/99 FI Vs. Kishan Chand Etc. Page 15 of 25 label of the sample commodity, it is revealed that the sample of tetrapack was packed and marketed by NDDB and GCMMF were the sole distributing agents. He further deposed that Sh. K.K. Bhadra was the Nominee of the GCMMF and copy of nomination is Ex. PW1/J and as per reply Ex. PW1/J1 of NDDB, Sh. S. Nagaraja was their Nominee.
24. In the crossexamination conducted by Ld. Counsel for accused no. 2 & 3, PW1 stated that label of the tetrapack was reproduced on the Notice in form VI and it was mentioned on the label that sample commodity was packed and marketed by NDDB. He further stated that he went for investigation to the New Delhi Office of GCMMF and met with some employees who informed that the GCMMF is the sole distributor of NDDB.
25. In the crossexamination of this witness conducted by Ld. Counsel for accused no. 4 & 5, nothing material could be extracted and not a single suggestion has been given to PW1 that it was not mentioned on the label that sample commodity was packed and marketed by NDDB or that label declaration were wrongly reproduced in the Notice in form VI or that he did not go to the New Delhi Office of GCMMF where he met some employees who informed that GCMMF is the sole distributor of NDDB.
26. PW2 also in his evidence inter alia stated that from the label of the packet, it appeared that sample in question was packed and marketed by NDDB Anand, Gujrat through their sole distributor GCMMF in New Delhi. He further stated that the evidence of sole distributor of GCMMF CC No. 10/99 FI Vs. Kishan Chand Etc. Page 16 of 25 was also available in the office in connection with the investigation of another case. He also produced the letter of GCMMF addressed to FI Sh. P.N. Khatri as Ex. PW2/A along with copies of two bills which are Ex. PW2/B & Ex. PW2/C. He stated that these two bills disclose that GCMMF was the sole selling agent for NDDB.
27. In the crossexamination conducted by Ld. Counsel for accused no. 2 and 3, PW2 categorically stated that as per the result of investigation conducted by the department, GCMMF Ltd. were the sole selling agent of Dhara Mustard Oil manufactured by NDDB. He further stated that the contents of the label declaration were reproduced by the FI on Notice Ex. PW1/B and as per the label declaration, the product was manufactured and marketed by NDDB. This witness has further produced the photocopies of dispatch orders cum delivery challans issued by NDDB in favour of GCMMF Ltd, which were received by the department in some other cases of these parties and same are Ex. PW2/DA, Ex. PW2/DB & Ex. PW2/DC. He stated that on these challans Ex. PW2/DB & Ex. PW2/DC, it is mentioned that GCMMF Ltd. is the sole selling agent of NDDB.
28. In his crossexamination conducted by Ld. Counsel for accused no. 4 & 5, PW2 admitted that the accused no. 2 GCMMF Ltd. did not produce any Bill or Invoice in reference to the sample commodity so as to show that same had been supplied to it by the accused no. 4 i.e. NDDB. He stated that they had not investigated from the accused no. 4 & 5 whether the CC No. 10/99 FI Vs. Kishan Chand Etc. Page 17 of 25 sample commodity belong to them or not. He categorically stated that there was sufficient evidence on record to proceed against accused no. 4 & 5. He denied the suggestion that the sample commodity has no concern with the accused no. 4 & 5. Similarly, PW3 in his crossexamination conducted by accused no. 2 & 3 categorically stated that as per the label declaration, the sample commodity was packed and marketed by NDDB Anand.
29. From the aforesaid evidence of PWs, it is evident that label declaration of sample commodity were correctly reproduced by the Food Inspector in Notice in Form VI Ex. PW1/B according to which sample commodity was packed and manufactured by NDDB i.e. accused no. 4 of which accused no. 5 is the Nominee. It is also pertinent here to note that though accused no. 4 NDDB & its nominee i.e. accused no. 5 have taken a plea that sample commodity does not belong to accused no. 4 and have tried to disown the sample commodity, but when a question was put to accused no. 4 NDDB through its AR Sh. N.N. Rastogi in statement recorded U/s 313 Cr.P.C. regarding the evidence that on the basis of label of the tetra packs, it was revealed that the sample commodity was packed and marketed by NDDB Anand , Gujrat and GCMMF were the sole distributing agent of NDDB in Delhi, it simply replied that it is a matter of record. Again, in reply to another question put to accused no. 4 NDDB regarding the letter of GCMMF Ex. PW2/A and bills Ex. PW2/B and Ex. PW2/C which shows that GCMMF was their sole selling agent, it again replied that it is a matter of record. Meaning thereby, it has not been disputed by accused no. 4 CC No. 10/99 FI Vs. Kishan Chand Etc. Page 18 of 25 NDDB that as per label of sample commodity, it was packed and marketed by it. The accused no. 4 NDDB has also not disputed the correspondence/letter of GCMMF Ex. PW2/A and bills Ex. PW2/B & Ex. PW2/C and challans placed on record by the PW2 as Ex. PW2/DA, Ex. PW2/DB & Ex. PW2/C showing that GCMMF i.e. accused no. 2 herein was their sole selling agent.
30. Not only this, Sh. K.K. Bhadra i.e. accused no. 3, who is admittedly nominee of GCMMF Ltd. (accused no. 2 herein) has also taken a plea in his statement U/s 313 Cr.P.C. that GCMMF Ltd. was the sole selling agent for Dhara Brand of edible oil, packed and marketed by NDDB and GCMMF Ltd. received the sample commodity vide Dispatch order cum Delivery Challan dated 18.08.1998 from NDDB. In order to prove this plea, the accused no. 3 has also examined himself as DW1 and deposed in his evidence that in the year 1998, he was employed in Gujarat Cooperative Milk Marketing Federation Ltd., New Delhi and was also Nominee of the company at Delhi and their organization was the sole selling agent for Dhara Brand Mustard Oil and other edible oils, which were then manufactured, packed and marketed by National Dairy Development Board, Anand (Gujrat) and this stock was distributed through their organization. He further deposed that the procedure was that NDDB used to supply the finished and packed packets of oil along with a Dispatch Order cum Delivery Challan to their organization and they used to distribute the same through various distributors. The Dispatch Order cum Delivery CC No. 10/99 FI Vs. Kishan Chand Etc. Page 19 of 25 Challan in respect of Dhara Brand imported Refined Rapeseed oil in litre tetra packs, Batch No. NIR02, packed in August, 1998 was received by them which is Ex. DW1/A. He further deposed that it was already printed on the packets of imported Rapeseed Oil "packed and marketed by NDDB". The aforesaid testimony of DW1 has gone unrebutted and un challenged as this witness has not been crossexamined by Ld. Counsel for NDDB (accused no. 4) and its nominee Sh. S. Nagaraja (accused no. 5) at all.
31. From the aforesaid evidence of PWs, documents placed on record by PW2, statement of accused no. 4 recorded U/s 313 Cr.P.C. and further in view of unrebutted and uncontroverted testimony of DW1, it stands proved that sample commodity was packed, manufactured and marketed by NDDB (accused no. 4) of which accused no. 5 is the nominee and accused no. 2 of which accused no. 3 is the Nominee was the sole selling agent and distributor of the edible oil including sample commodity manufactured by NDDB. Hence, there is no merit in the contention of accused no. 4 & 5 that there is no evidence to connect the sample commodity to accused no. 4 NDDB.
32. From the foregoing discussions, it has come on record that on 23.08.1998, sample of Imported Refined Rapeseed Oil, which was packed and manufactured by accused no. 4 of which accused no. 5 is the Nominee, was lifted by the Food Inspector for analysis, which on being analyzed by the Public Analyst was found not conforming to standards as presence of CC No. 10/99 FI Vs. Kishan Chand Etc. Page 20 of 25 Castor oil was detected. Accused no. 4, through its AR exercised its right U/s 13 (2) of PFA Act to get the second counterpart of the sample analyzed by the Director, Central Food Laboratory. The Director, CFL, Calcutta vide his Certificate dated 28.04.1999 also found the sample adulterated.
33. However, a perusal of certificate of Director, CFL, Calcutta dated 28.04.1999 shows that the sample was found conforming to all the standards as laid down under PFA Act & Rules, but still it was opined by the Director, CFL that sample was adulterated. The Ld. Predecessor Court sought clarification in this regard and the Director, CFL vide his letter dated 20.05.1999 clarified that Flash Point experiment gave a value 240 Deg C which was lower than the specification and hence the sample was found to be adulterated. As per Ld. Counsel for accused no. 4 & 5, a certificate issued by the Director, CFL is admissible in respect of its contents only and there is no provision to consider the separate opinion of the Director, CFL which was sought by way of a clarification letter by the Ld. Predecessor Court. I find some substance in this contention of the Ld. Counsel for accused no. 4 & 5. It is evident that in the original certificate/report dated 28.04.1999, no such finding/opinion has been given by the Director, CFL that Flash Point experiment gave the lower value than the specification. The said finding/opinion has been given by the Director, CFL vide his subsequent clarificatory letter dated 20.05.1999 on the communication made by the Ld. Predecessor Court. As per Section 13 (5) of PFA Act, the certificate issued by the Director, CFL is admissible in respect of its CC No. 10/99 FI Vs. Kishan Chand Etc. Page 21 of 25 contents only and no separate or subsequent opinion of the Director, CFL can be relied upon unless he is examined as a witness. It has also been held by the Hon'ble Delhi High Court in Jamna Dass Vs. The State, Criminal Revision No. 254D of 1966 that, "Apart from the certificate mentioned in subsections (2) and (3), there is no other provision of law which accords evidentiary value to the opinion of the Director, Central Food Laboratory, Calcutta. Even otherwise what is relevant under the section is the certificate specifying the result of the analysis made by the Director; his opinion as such has no evidentiary value at all unless he is examined as a witness in the case."
34. The Director, CFL has not been examined in the present case.
Therefore, the subsequent opinion of the Director CFL vide his letter dated 20.05.1999 by which he found the sample adulterated on the ground of deficiency found in Flash point experiment has no evidentiary value and same cannot be relied upon.
35. Apart from this, perusal of reports of both the Analysts shows that the various tests performed by the Public Analyst and Director, CFL gave different results and there are variations in the material parameters of the sample sent to both the Analysts. In the sample sent to the Public Analyst, BR value i.e. Butyro refractometer reading at 40 deg was found as 59, whereas Director, CFL found the same as 58.6. Further, as per report of Public Analyst Ex.PW1/G, Sapnoification value was 188.22 and Iodine Value was 115.45. While, the Director, CFL found the Sapnoification CC No. 10/99 FI Vs. Kishan Chand Etc. Page 22 of 25 value as 191.1 and Iodine Value as 112.5. Likewise, as per report of Public Analyst, BTT i.e. Bellier Turbidity temperature by acid method was 16 Deg C, whereas as per Director, CFL, the same was 18.8 Deg. C. It is also to be noted that the Public Analyst vide its report Ex. PW1/G found the sample adulterated as presence of Castor oil was detected in the sample and on the basis of same present complaint has been launched against the accused persons. However, the Director, CFL after analyzing the second counterpart of the sample came to the different conclusion and found the Test for Castor Oil 'Negative', which is in sharp contradiction to the report of Public Analyst. Not only this, the Director, CFL found the sample adulterated by way of his clarificatory letter dated 20.05.1999 as Flash Point experiment gave the lower value than the specification which was 240 Degree C, but the Public Analyst found the Flash Point experiment as 260 Degree C i.e. within the specification value. As such, reports of both the Experts are not only at variance, but are contradictory to each other.
36. In State Vs. Rama Rattan Malhotra 2012 (2) FAC 398 after relying upon various judgments titled as Kanshi Nath Vs. State 2005(2) FAC 219 and State Vs. Mahender Kumar & Ors, 2008 (1) FAC 177, the Hon'ble High Court of Delhi has 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.". In Kanshi Nath Vs. State (Supra) even while certain other contentions of the accused were rejected, the contention concerning the samples sent to the CC No. 10/99 FI Vs. Kishan Chand Etc. Page 23 of 25 two test labs not being representative was accepted and the accused were acquitted. In this judgment after referring to the judgment of Calcutta Municipal Corporation Vs. Pawan Kumar Saraf 1999(1) FAC 1 and Municipal Corporation of Delhi Vs. Bishan Sarup 1972 FAC 273, the Hon'ble Delhi High Court has observed that, "Therefore, on the facts of the present case, it can be said that the variation is beyond 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".
37. Similarly, It has been held by the Hon'ble Delhi High Court in M/s Raja Ram Seth & Sons & Anr. Vs. Delhi Administration 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." Similar view has been taken by the Hon'ble High Court of Delhi in State (Delhi Administration) Vs. Ram Singh & Ors. 2009 (1) FAC 371. Reliance may also be placed upon State Vs. Suresh Kumar & Anr. 2010 (2) FAC 204.
38. In the present case also, since there are variations in the reports of Public Analyst and Director, Central Food Laboratory as stated above which are beyond the acceptable range of variation i.e. .3%, therefore, in CC No. 10/99 FI Vs. Kishan Chand Etc. Page 24 of 25 view of law laid down in the aforesaid authorities, it can be safely inferred that representative samples were not sent to both the Experts.
39. In view of foregoing discussions, since there are variations in the report of Public Analyst and Director, Central Food Laboratory which are beyond the permissible limit of .3%, I find considerable force in the contention of the Ld. Defence Counsels that sample taken by the Food Inspector was not representative one. Therefore, benefit of doubt is liable to be given to the accused persons. Accordingly, all the accused are given benefit of doubt and they are acquitted of the charges leveled against them.
File be consigned to Record Room.
Announced in the open Court (Balwant Rai Bansal)
on 5th October, 2013 ACMMII/ PHC/ New Delhi
CC No. 10/99
FI Vs. Kishan Chand Etc. Page 25 of 25
CC No. 10/99
DA Vs. Kishan Chand Etc.
05.10.2013
Present: Sh. Masood Ahmad, Ld. SPP for complainant.
Proceedings qua accused no. 1 have already been abated. AR of accused no. 2 and accused no. 3 are present with their counsel Sh. M.K. Gupta.
AR of accused no. 4 and accused no. 5 are present with their counsel Accused no. 6 has already been discharged.
Vide my separate Judgment of even date dictated and announced in the open court, all the contesting accused stand acquitted of the charges leveled against them.
Previous Bail Bond / Surety Bond of accused stands cancelled. Surety stands discharged. Endorsement on the documents of the previous surety, if any, be cancelled.
Accused no. 3 and 5 are directed to furnish fresh bail bonds in compliance of Section 437A Cr.P.C. in the sum of Rs. 15,000/ and a surety of like amount.
Accused no. 3 has moved an application U/s 445 Cr.P.C. stating that he is no more Nominee of accused no. 2 for which he was prosecuted in the present case and seeks permission to deposit cash in place of surety as he is unable to find a local surety. Heard. Application is allowed. Accused no. 3 has deposited Rs. 15,000/ in cash instead of surety bond.
Accused no. 5 has furnished the B/B & S/B in the sum of Rs. 15,000/ each. Same is accepted.
File be consigned to Record Room.
(Balwant Rai Bansal) ACMMII/PHC/ND/05.10.2013 CC No. 10/99 FI Vs. Kishan Chand Etc. Page 26 of 25