Delhi District Court
Da vs Sushil Chaudhary on 26 August, 2009
1
IN THE COURT OF SHRI SANJEEV KUMAR MALHOTRA,
ADDITIONAL CHIEF METROPOLITAN MAGISTRATE-II,
NEWDELHI
C.C. N0. 78/93
DA Versus Sushil Chaudhary
U/s 7/16 of the Prevention of Food Adulteration Act, 1954
JUDGMENT
a. The Serial number of the case : 78/93
b. The date of the commission of the offence : 17.12.92
c. The name of the Complainant, if any : Sh. M.R. Grover, LHA
d. The name of the accused and his parentage : Sushil Chaudhary S/o
Late Sh. D.D.
Chaudhary, M/s
Cheese Bazar, F-38,
NDSE, Part-I, New
Delhi. R/o D-22, Amar
Colony, New Delhi.
e. The offence complained of or proved : u/s 2 (ia) (a) (m)
punishable under
Section 16 (1) read
with section 7 of the
PFA Act.
f. The plea of the accused : Pleaded not guilty
g. The final order : Acquitted
h. Arguments heard on : 12.08.09
i. judgment announced on : 26.08.09
Brief statement of the reasons for such decision-
1. The present complaint is filed by the Delhi Administration through Local Health Authority Sh. M.R. Grover against the accused Sushil Chaudhary S/o Late Sh. D.D. Chaudhary, M/s Cheese Bazar, F-38, 2 NDSE, Part-I, New Delhi, for prosecution of the offence under section 7/16 of the Prevention of Food Adulteration Act, 1954 (hereinafter referred to as the PFA Act)
2. The complainant has submitted that on 17.12.92 at about 5:00 p.m., Food Inspector, S.B. Sharma purchased a sample of 'Hard Cheese', a food article for analysis from Sushil Chaudhary S/o Late Sh. D.D. Chaudhary at M/s Cheese Bazar, F-38, NDSE, Part-I, New Delhi , where it was found stored for sale for human consumption. The accused Sushil Chaudhary was found conducting the business at the time of sampling. The sample of Hard Cheese was taken from three open polythene packets containing 200 gms of Hard Cheese each which was kept in freezer. All the three packets had identical label declaration. The contents of the three packets were broken into smaller pieces in a clean and dry stainless steel tray and mixed with the help of clean and dry stainless steel knife. The Food Inspector divided the sample then and there into three equal parts by putting them in separate clean and dry bottles and 16 drops of formalin were added to each bottle. Each bottle containing the sample was separately packed, fastened, marked and sealed according to the PFA Act and Rules. Vendor's signatures were obtained on the paper slip and the wrapper of the sample bottles. Notice in Form VI was given to the accused Sushil Chaudhary and the price of the sample was given to him. The Panchnama was prepared at the spot. All the documents were prepared by Sh. S.B. Sharma , Food Inspector and were signed by the accused Sushil Chaudhary and the other witness Sh. P.K. Vats, Food Inspector. Before starting the sample proceedings efforts were made to join the pubic witnesses but none came forward. The sample was taken under the supervisions of LHA. One counter part of the sample was sent to the Public Analyst in intact condition and two 3 counter parts were deposited with the LHA in intact condition. The Public Analyst analysed the sample on 06.01.93 and found that the sample does not conform to standard because Moisture exceeds the prescribed maximum limit of 43.0%.
3. After the conclusion of the investigation, the entire case file including the statutory documents and PA's report and the report of the FI was sent to the Director (PFA) Delhi Administration, Government of NCT of Delhi who accorded consent under Section 20 of PFA Act for institution of the case and authorised Sh. M.R. Grover as Local (Health ) Authority to file the present complaint.
4. The accused is allegedly to have violated the provisions of Section 2 (ia)(a)(m) punishable U/s 16(1) read with Section 7 of the PFA Act and Rules.
5. Summons of the case were served upon the accused and pursuant thereto he had appeared before the court. Charge for contravention of provision of Section 2 (ia) (a) (m) punishable under Section 16 (1) read with section 7 of the PFA Act was framed against the accused on 18.3.98 to which he pleaded not guilty.
6. In support of its case, complainant examined PW-1 Mrs. M. Shrivastava, Public Analyst; PW-2 Sh. M.R. Grover, LHA; PW-3 F.I. S.B. Sharma & PW-4 Dr. P.K. Vats, LHA.
7. Statement of accused was recorded under Section 313 Cr.P.C on 09.07.02 wherein he has controverted and rebutted the entire evidence against him while submitting that he is innocent and preferred to lead evidence in his defence and examined DW-1 Dr. Ashok Kumar 4 Chaudhary ; DW-2 Dr. G.S. Rajoria & DW-3 Dr. S. Singh .
8. As per section 2(ia)(a) of PFA Act, an article of food shall be deemed to be adulterated 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.
9. As per section 2 (ia)(m) of PFA Act, an article of food is said to be adulterated 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.
10. It is true that the mensrea in the ordinary or usual sense of this term is not required for proving an offence defined by Section 7 of the Prevention of Food Adulteration Act, 1954. It is enough if an article of adulterated food is either manufactured for sale or stored or sold or distributed in contravention of any provision of the Act or of any rule made thereunder. Nevertheless, the prosecution has to prove beyond reasonable doubt that what was stored or sold was food.
ARGUMENTS AND FINDINGS.
11. I have heard both the sides at length and have given my conscious thought and prolonged consideration to the material on record, written submissions, relevant provisions of law and the precedents on the point. The SPP has argued that as the case is well proved and the accused is liable to be convicted. Ld. Defence counsel, on the other hand, has vehemently argued that at the time of sampling, there was no standard of 5 Mozzarella Cheese and same has been provided in the year 2005. Ld. Defence counsel further argued that the standard of hard cheese should not have been applied on the sample of Mozzarella Cheese. On the other hand, Ld. SPP argued that the sample commodity was hard cheese and the standard of hard cheese was rightly applied on the sample commodity. Ld. Defence counsel has also drawn my attention in respect of the authority reported as ' M.C.D Vs. Ram Kishan, 1985 PFA Cases 192; 1976 PFA Journal 203 titled as Pale Ram Vs. State ; 1980 (II) PFA Cases 49 titled as M/s Brook Bond India Ltd. Vs. State of Rajasthan.
Whether the sample commodity was hard cheese or Mozzarella Cheese.
12. Ld. Defence counsel vehemently argued that the sample commodity was of Mozzarella Cheese and not hard cheese as also mentioned on the documents prepared at the spot. On the other hand, Ld. SPP argued that Mozzarella Cheese is one of the variety of hard cheese and sample of hard cheese was lifted. It is a matter of record that on all the documents prepared at the spot i.e vendor's receipt Ex.PW2/A, Notice in form VI Ex.PW2/B and Panchnama Ex.PW2/C, it is mentioned by the Food Inspector that approximate 600 gms of hard cheese ( Mozzarella ) was taken. Vendor also issued a cash memo Ex.PW2/D in respect of the sale of the sample commodity to the Food Inspector for analysis at the spot and in the cash memo, the particulars of sold commodity to F.I is mentioned as Mozzarella Cheese. PW-2 Sh. M.R. Grover under whose supervision, the sample was lifted , confirmed in his cross-examination conducted on 17.9.97, that Mozzarella is a popular variety of cheese in Europe and other countries. He further confirmed that word ' hard cheese' was not printed on the packet , however, the vendor disclosed that the 6 same is hard cheese. The attention of this witness was drawn in respect of the cash memo Ex.PW2/D which was issued by the accused at the spot for sale of the sample commodity and the witness confirmed that cash memo Ex.PW2/D also does not find mentioned the word 'hard'. This testimony of PW-2 is contrary to the proved documents as if the vendor had told the Food Inspector that sample commodity is of hard cheese, there was no occasion for him to issue cash memo Ex.PW2/D in respect of Mozzarella Cheese. PW-3 F.I. S.B. Sharma also confirmed in his cross-examination that a representation was received by the department from the vendor and it was mentioned in the representation that sample cheese was a soft variety of Italian Cheese. The fact that the Food Inspector himself mentioned on all the statutory documents prepared at the spot that the sample of hard cheese ( Mozzarella ) was taken and the cash memo Ex.PW2/D was issued for sale of Mozzarella Chese and the representation of the vendor as admitted by the PW-3 F.I. S.B. Sharma to the effect that he gave the sample of soft variety of cheese itself proves that sample commodity was of Mozzarella Cheese.
Whether the standard of hard cheese could have been applied on Mozzarella Cheese .
13. Now coming to the next controversy, whether the standard of hard cheese can be applied on the sample of Mozzarella Cheese, it is an admitted fact as also confirmed by PW-2 Sh. M.R. Grover that in the year 1992, when the sample was taken, no separate standard for Mozzarella Cheese was prescribed and that there was a proposal for prescribing separate standard for Mozzarella Cheese. It is also admitted fact that the standard of Mozzarella Cheese have been provided in the item No. A.11.02.06 of Appendix 'B' of PFA Rules and the same was inserted by the GSR 356 (e) dated 7.6.05 ( w.e.f. 7.3.06). Thus the testimony of Sh.
7M.R. Grover, LHA also shows that there was a need/proposal for separate standard of Mozzarella Cheese which were provided by the legislature in its wisdom in the year 2005.
14. In an authority reported as MCD VS. Ram Kishan ( Supra), the Hon'ble Division Bench of Delhi High Court held as under:-
''............ This analysis was made on the basis of prescribed standard for ice-cream- the rule treating same standard for softy ice- cream and ice-cream came in force w.e.f 23rd February 1974. This clearly shows that the earlier rule prescribing standard for ice-cream was not meant to apply for softy ice-cream. Held as the sample was taken on 16.2.73 this rule previously cannot be applied with retrospective effect. ''
15. In an another authority reported as Pale Ram Vs. State (Supra) wherein Hon'ble Delhi High Court held as under:-
'' (ii) Prevention of Food Adulteration Rules, 1955- Article of food for which no standard has been laid down in the - Cannot be compared with articles for which standards have been laid down.
Held that there is no reason why an article of food for which no standard has been laid down under the Prevention of Food Adulteration Rules, 1955, should be compared with articles of food for which standards have been laid down in order to find out whether there has been a violation of the standard or not. This would result in the Court legislating and laying down the standard of articles of food for which admittedly no standard has been laid down.''
16. PW-1 Mrs. Mohini Srivastava, Public Analyst also deposed that on 8 analysis of the sample, she found the sample does not conform to the standard of hard cheese and that there was no standard of Mozzarella Cheese. To a specific question, she deposed that she cannot comment if the Mozzarella Cheese falls under the category of soft Italian Cheese whose moisture contents varies from 53% to 58%. It is further matter of record that the analysis of the Public Analyst on the sample commodity conforms to the standard of Mozzarella Cheese as provided in the year 2005. Had it been that the standards of Mozzarella Cheese were provided by the legislature at the time of sampling, as per report of the Public Analyst, the sample would have been conforming to the standard of Mozzarella Cheese.
17. In view of the above authorities of the Hon'ble Delhi High Court and keeping view of the fact that the vendor issued the cash memo for sale of sample commodity to the Food Inspector for Mozzarella Cheese and on all the statutory documents, word 'Mozzarella Cheese' was mentioned by the Food Inspector and that the standard of Mozzarella Cheese came in force w.e.f 7.3.06, I am of the considered opinion that the standard of hard cheese was wrongly applied upon the sample of Mozzarella Cheese for which no standard were prevailing at the relevant time.
18. In view of the above discussion and reasons, I am of the considered opinion that the complainant has failed to prove its case against the accused person. In result, the accused stands acquitted. Bail bond stands cancelled. Surety discharged. File be consigned to Record Room.
Announced in the open court. ( S.K. MALHOTRA ) Dated: 26.08.09 ACMM-II/NEW DELHI.