Delhi District Court
In Re vs (1) Sameer Kohli on 4 November, 2016
IN THE COURT OF SH. ASHU GARG,
Addl. Chief Metropolitan Magistrate - II (New Delhi),
Patiala House Courts, New Delhi
CC No. 69/10
Unique Case ID No. 02403R0180022010
Date of Institution: 15.04.2010
Date of reserving judgement: 04.11.2016
Date of pronouncement: 04.11.2016
In re:
Delhi Administration / Food Inspector
Department of PFA,
Govt. of NCT of Delhi
A-20, Lawrence Road Industrial Area,
Delhi-110035 ... Complainant
versus
(1) Sameer Kohli
[Since Discharged]
(2) Suresh Kohli
[Since Discharged]
(3) Raj Kumar Garg
[Since Discharged]
(4) Anoop Kumar Gupta
S/o Late Sh. Bagirath Lal Gupta
R/o H.No. 5, Court Lane, Civil Lines
Delhi-110054.
(5) M/s KRBL Limited.
Sales office: 5190, Lahori Gate,
Delhi-110006. ... Accused persons
CC No. 69/10 Page 1 of 11
JUDGMENT:
1. The present is a complaint filed under section 16 of the Prevention of Food Adulteration Act, 1954 (PFA Act), alleging that the accused persons have violated the provisions of the PFA Act and Rules. The accused no. 1 is stated to be the vendor of M/s Kohli Kiryana Store, of which accused no. 2 is the proprietor, from where the sample of "Basmati Rice Classic" was lifted. Accused no.3 is the proprietor of M/s Garg Enterprises who had supplied the food article to accused no. 1 and 2. Accused no. 5 is the company that had packed the food article and supplied to accused no.3 and accused no. 4 is its Joint Managing Director.
2. As per the complaint, on 17.03.2009, the food officials consisting of Food Inspector (FI) Chander Bhan Bhoora and Field Assistant (FA) J.S.Bisht under the supervision of Local Health Authority (LHA)/SDM Sh. Pradeep Baijal reached along with their staff at the premises of M/s. Kohli Kiryana Stoare at 308/9, Daya Basti, Shehzada Bagh, Delhi-110035, where the accused no.1 was found conducting the business of various food articles, which were lying stored/exposed for sale for human consumption. The FI disclosed his identity and expressed his intention to purchase a sample of "Basmati Rice Classic" from the vendor that was lying in sealed packets of one kg each having identical label declaration, to which he agreed. A sample of three such sealed packets was then lifted as per procedure prescribed under the PFA Act and Rules. Each sample was separately packed, fastened, marked and sealed and necessary documents were prepared at the spot, including the Notice as per Form-VI, CC No. 69/10 Page 2 of 11 panchnama, raid report etc. The price of sample was paid to the vendor. Thereafter, one counterpart of the sample was sent to the Public Analyst (PA) in intact condition and the other two counterparts were deposited with SDM/LHA. Vide report dated 02.04.2009, the PA found the sample to be adulterated on the ground that it was infested with abundance of dead insects. Upon receipt of report, the SDM/LHA ordered investigation which was carried out by FI. The investigation revealed that accused no. 2 was the proprietor of the vendor business concern. It was found that the food article had been purchased by the vendors from accused no. 3 and the food article had been manufactured / packed by accused no. 5 company, of which accused no.4 was the Managing Director. After completion of investigation, sanction under section 20 of the PFA Act was obtained from the Director PFA. The complaint was then filed in the court on 15.04.2010 against all the accused persons alleging violation of section 2(ia)(a), and (f) of PFA Act, as punishable section 7/16(1A) of PFA Act.
3. As the complaint was filed in writing by a public servant, recording of pre-summoning evidence was dispensed with and the accused persons were summoned vide order dated 15.04.2010. The accused persons appeared and filed an application under section 13(2) of PFA Act thereby exercising the right to get the second counterpart of the sample to be analysed from Central Food Laboratory (CFL). The application was allowed and a counterpart was sent for analysis to CFL. The CFL examined the sample and its Director gave Certificate dated 28.05.2010, opining the sample to be not conforming to the PFA Rules due to presence of damaged grains in excess of in prescribed maximum limit.
CC No. 69/10 Page 3 of 114. It is pertinent to note that separate applications were filed by the accused persons under Section 294 CrPC read with Section 19(2) of PFA Act which were allowed vide order dated 15.04.2011 and accused no.1 and 2 were ordered to be discharged by the court. Similar application was moved on behalf of accused no.3 which was allowed vide order dated 30.10.2012 and accused no.3 also stood discharged.
5. Based on the report of CFL, notice under Section 251 CrPC was framed against the accused no. 4 and 5 vide order dated 01.08.2013 for commission of the offence punishable under section 7/16(1)(a) PFA Act, being violation of section 2(ia)(a) and (m) of PFA Act, to which he pleaded not guilty and claimed trial.
6. At the trial, the prosecution examined three witnesses in supports of its case. PW-1 FI C.B.Boora, PW-2 Sh. Pradeep Baijal and PW-3 FA J.S.Bisht were a part of the team that had visited the spot for sample proceedings. They deposed about the proceedings conducted by them on 17.03.2009 and narrated the steps undertaken by them during the sample proceedings, including disclosing his identity, expressing intention to purchase sample for analysis, lifting the sample of three sealed packets of one kg each of "Basmati Rice Classic", dividing it in three parts by putting one sealed packet as one counterpart, fastening, sealing, marking the samples, and obtaining signatures of vendor and witnesses. They also proved the necessary documents including the vendor's receipt Ex. PW- 1/A, Notice Form-VI Ex. PW-1/B, Panchnama Ex. PW-1/C, Notice under Section 14A Ex. PW-1/D, Raid report Ex. PW-1/E, PA Receipt Ex. PW-
CC No. 69/10 Page 4 of 111/F and LHA receipt Ex. PW-1/G. PA report Ex. PW-1/H was received and investigation was marked to PW-1. He sent various letters to the accused persons and also various departments to ascertain the legal status and the constitution of the vendor/ distributor / manufacturer business concern. Upon conclusion of investigation, sanction Ex. PW-1/P was obtained from the Director PFA. The complaint Ex. PW-1/Q was filed in the court. A copy of PA report with intimation letter Ex. PW-1/R was sent to the accused persons through post vide receipts Ex. PW-1/S. These witnesses were duly cross-examined by Ld. Defence Counsel wherein they denied that the sampling method was not proper or that the accused persons had been falsely implicated.
7. Statements of the accused no. 4 and accused no.5 (through its AR) under section 313 CrPC were recorded on 07.04.2016 wherein they denied the allegations and pleaded innocence. They expressed ignorance about the sample proceedings as they were not present at the spot. They claimed that the damaged grains observed by CFL were due to nature consequences as the sample had been analysed after about one year. They however did not lead evidence in defence.
8. It is in these circumstances, Ld. SPP for the complainant has argued that the complainant has been able to establish its case against the accused persons beyond reasonable doubt, on the ground that the accused persons have not been able to rebut the findings of the CFL report dated 28.05.2010 which as per section 13(3) of PFA Act is final and conclusive.
CC No. 69/10 Page 5 of 11It is submitted that all the witnesses have supported its case and no major contradiction can be seen in their testimony.
9. On the other hand, Ld. Defence Counsel has submitted that the sample proceedings were not conducted properly and that there are various missing links in the testimony of witnesses. Ld. Counsel has strongly contended that there is variation in the reports as given by PA and CFL, which leads to conclusion that the two samples were not representative and therefore, conviction cannot be based solely on the basis of the CFL report. He has relied upon the various judgements in his support.
10. I have heard the arguments advanced by Ld. SPP for the complainant and Ld. Defence Counsel for the accused persons and have carefully perused the material available on record.
11. It is to be understood that the Notice framed against the accused no. 4 and 5 is for violation of section 2(ia)(a) and (m) of the PFA Act on the basis of CFL report. Under section 2(ia)(a) of PFA Act, the prosecution has to establish that the purchaser had demanded a food article of a specific nature, substance or quality and the article sold was, to his prejudice, either not of the nature, substance or quality demanded, or was not of the nature, substance or quality which it purported or represented to be. Section 2(ia)(m) of PFA Act deals with situation where the quality or purity of an article falls below the prescribed standard or its constituents are present in quantities not within the prescribed limits of variability.
CC No. 69/10 Page 6 of 1112. In the case at hand, it is an admitted position, as is clear from both the reports of PA and CFL that the food article fell under Item A.18.06.04 of Appendix-B of the PFA Rules. Specific standards have been prescribed for "Rice " under this provision.
13. As per section 13(3) of the PFA Act, the certificate issued by the Director of CFL shall supersede the report of the PA. As per proviso to section 13(5) of the Act, such certificate shall be final and conclusive evidence for the facts stated therein. Thus, as far as the findings of the CFL are concerned, the same are final and conclusive and no evidence can be given to disprove the same.
14. In Calcutta Municipal Corporation v. Pawan Kumar Saraf [AIR 1999 SC 738], it has been authoritatively laid down that the legal impact of a certificate of the Director of CFL is three fold: (a) it annuls or replaces the report of the PA, (b) it gains finality regarding the quality and standard of the food article involved in the case and (c) it becomes irrefutable so far as the facts stated therein are concerned.
15. In Subhash Chander v. State, Delhi Administration [1983(4) DRJ 100], it was observed by Hon'ble High Court of Delhi that "It has repeatedly been held by the supreme court that the certificate of the Director supersedes the report of the public analyst and is to be treated as conclusive evidence of its contents. The Director is a greater expert and therefore the statute says that his certificate shall be accepted by the court as conclusive evidence. For all purposes the report of the public analyst is CC No. 69/10 Page 7 of 11 replaced by the certificate of the Director.... Superseded is a strong word. It means obliterate, set aside, annul, replace, make void, inefficacious or useless, repeal. The Director's certificate supersedes the report given by the public analyst. Once superseded it does not survive for any purpose. It will be anomalous to hold that for some purpose it survives and for other purposes it is superseded."
16. Since the report of CFL is final and conclusive and the same supersedes the report of PA, only this report has to be considered and the report of PA has to be ignored. However, the defence strongly relies upon the judgement titled as Kanshi Nath v. State [2005(2) FAC 219], informing that the said ruling has been constantly followed by the Hon'ble High Court of Delhi in State v. Ramesh Chand [2010 (2) JCC 1250], Food Inspector v. Parvinder Malik [2014(2) FAC 306], State v. Vinod Kumar Gupta [2010(2) JCC 957], State v. Virender Kohli [2014(2) FAC 223], State v. Kamal Aggarwal [2014(2) FAC 183], State v. Vidya Gupta [2014(1) FAC 291], State v. Dinesh Goswami [2014(1) FAC 302], State v. Mahabir [2014(1) FAC 286], State v. Santosh Sharma [2014(1) FAC 296], Raja Ram Seth & Sons v. Delhi Administration [2012(2) FAC 523], State v. Sunil Dutt [2011(4) JCC 2377] and State v. Rama Rattan Malhotra [2012(2) FAC 398]. It is submitted that comparison of the two reports would show that there are substantive variations which would show that the sample was not representative.
17. The Hon'ble High Court of Delhi in Kashi Nath's case (supra), was dealing with a situation where there were certain variations in the reports CC No. 69/10 Page 8 of 11 of PA and CFL while analysing a sample of 'dhania powder'. Hon'ble Court considered the ratio in MCD v. Bishan Sarup [ILR 1970 (1) Delhi 518] and held that it would still be open for the accused to establish that the sample tested was not a representative one, and if the variation in the two reports is substantial enough, then the PA report can certainly be looked into to establish this variation.
18. Therefore, it can be safely said that though the CFL report is final and conclusive as to the results therein, yet it can still be looked into to ascertain if the samples were representative or not. If the accused is able to show that the samples were not representative or otherwise that the food article might have undergone a change by the time it reached CFL which was beyond his control, he would get benefit on that count.
19. Well, the differences between the two reports would show substantive variations in the two reports. The PA detected presence of abundance of dead insects (about 200 in one kg of rice) but no such presence was noticed in CFL report. It is therefore seen that the CFL report negated the report of PA on the sole incriminating parameter as to the presence of dead insects, on which the sample was failed and on the basis of which the prosecution was launched. As far as presence of dead insects is concerned, there could not have been much change in the same irrespective of considerable passage of time. Such dead insects would not have disappeared with the passage of time if the entire lot was of the same quantity. It appears that the sample with the PA was either pertaining to some other lot or otherwise had been improperly stored which was CC No. 69/10 Page 9 of 11 different from the other counterpart sent to the CFL. In any case, since the CFL report supersedes the PA report, it has to be held that there was no insect infestation in the sample.
20. The CFL report on the other hand shows presence of damaged grains upto 6.31% (which was beyond the maximum prescribed limit of 5.0%). It is important to understand that where the quality or purity of an article has fallen below the prescribed standards due to natural causes and beyond the control of human agency, then such article cannot be said to be adulterated. The CFL had examined the sample from 18.05.2010 to 28.05.2010. Thus, it was so analysed after about 14 months when it was lifted from the possession of the accused no.1. The nature of such food grains is such that some changes are bound to happen if sample is kept for a long period. The effect of air, moisture, temperature, external environment, internal heat etc. cannot be ignored on such article, particularly when no preservative as such was used in the sample. Foodgrains are prone to damage due to internal heat as well. Such changes would therefore be natural changes beyond human control. And if not, then the sample can also be sent to different or unrepresentative as the damaged grains were found to be only 0.32% by the PA which was within the prescribed limits. During the intervening period of 14 months, the possibility of such natural changes cannot be ruled out. The burden would be on prosecution to rule out possibility of natural changes before the accused persons can be convicted, particularly in view of such substantive variations in the two reports. The only conclusion would be that either the samples were not of the same lot or truly representative or otherwise it CC No. 69/10 Page 10 of 11 underwent a natural change during the intervening period which was beyond human control. In any case, the accused persons would get a benefit of doubt.
21. Thus, the matter would not be covered under section 2(ia)(a) of PFA Act. There is no evidence to show that any particular nature, quality or substance of Rice was demanded by the FI which was not supplied to him to his prejudice, or that it was not of nature, quality or substance represented or purported to be.
22. As far as sections 2(ia)(m) is concerned, the accused persons are entitled to be given benefit of proviso to section 2(ia). Therefore, considering the time gap, natural variations and variations in two reports, the accused persons are entitled to be given benefit of doubt. The evidence on record is not sufficient to conclude that the sample in question was 'adulterated' within the meaning of section 2(ia) of PFA Act and thus, no case would be made out against the accused persons for commission of offences punishable under section 7/16 of the PFA Act.
23. Having said so, the accused no. 4 and 5 are acquitted of the charges. However, bail bond of accused no. 4 shall remain in force for the next six months in terms of section 437-A. CrPC. File be consigned to record room.
Announced in the open court this 04th day of November, 2016 ASHU GARG ACMM-II (New Delhi), PHC CC No. 69/10 Page 11 of 11