Delhi District Court
Fi vs . Narender Jain Etc. on 27 April, 2013
IN THE COURT OF SHRI BALWANT RAI BANSAL
ADDITIONAL CHIEF METROPOLITAN MAGISTRATEII,
PATIALA HOUSE COURTS, NEW DELHI
C.C. No. 28/96
Food Inspector
Department of PFA
Govt. of NCT of Delhi
................. Complainant
Versus
1.) Shri Narender Jain
S/o Bhiku Ram Jain
M/s Bhiku Ram Jain Foods,
5, Shivaji Marg, New Delhi15.
2.) Shri Ravinder Kumar Jain
S/o Shri Bhiku Ram Jain
M/s Bhiku Ram Jain Foods,
5, Shivaji Marg, New Delhi15.
3.) M/s Bhiku Ram Jain Foods,
5, Shivaji Marg, New Delhi15.
CC No. 28/96
FI Vs. Narender Jain Etc.
COMPLAINT U/S 16 OF THE PREVENTION OF FOOD
ADULTERATION ACT, 1954
Serial number of the case : 28/96
Date of the commission of the offence : 03.05.1995
Date of filing of the complaint : 29.03.1996
Name of the Complainant, if any : Shri Gopal Singh, LHA.
Offence complained of or proved : S. 2 (ia) (a) & (m) of PFA Act
1954; punishable U/s 16(1) r/w
Section 7 of PFA Act.
Plea of the accused : Pleaded not guilty
Final order : Acquitted
Arguments heard on : 09.04.2013.
Judgment announced on : 27.04.2013.
J U D G M E N T
1. The present complaint has been filed on 29.03.1996 by the Delhi Administration through LHA Sh. Gopal Singh against the above said accused persons. It is stated in the complaint that on 03.05.1995 at about 3:30 PM, FI Sh. Bal Mukand purchased a sample of Mango Chutney, a food article for analysis from accused Sh. Narender Jain, S/o Bhiku Ram Jain at M/s Bhiku Ram Jain Foods, 5, Shivaji Marg, New Delhi15, where he was found conducting the business of the said food article at the time of sampling. FI Sh. Bal Mukund purchased 3 originally sealed bottles of 400 CC No. 28/96 FI Vs. Narender Jain Etc. gms each of Mango Chutney, having identical label declaration. The FI divided the sample commodity into three equal parts by putting one sealed bottle as one counterpart. Each counterpart containing the sample was separately packed, fastened and sealed according to the PFA Act and Rules. The signatures of accused Narender Jain were obtained on the LHA slip and the wrapper of the sample counterparts containing the sample. Notice was given to accused Narender Jain and price of sample was also paid to him. Panchnama was also prepared at the spot. All these documents prepared by FI Sh. Bal Mukund were signed by accused Sh. Narender Jain and the other witness namely Sh. Satish Kumar Gupta, FI. It is stated that before starting sample proceedings, efforts were made to get the public witnesses to join the proceedings, but none came forward and as such Shri Satish Kumar Gupta, FI was joined as witness. It is further stated that the sample was taken under the supervision of Sh. Gopal Singh, LHA.
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 conditions were deposited with LHA. The Public Analyst analysed the sample and opined that "The sample does not conform to standard because total acidity in terms of acetic acid is less than the prescribed minimum limit of 0.75%".
CC No. 28/96 FI Vs. Narender Jain Etc.
3. It is further stated that accused no. 3 M/s Bhiku Ram Jain Foods was a partnership firm, having six partners namely Smt. Prakash Devi Jain, Shri Ravinder Kumar Jain, Smt. Deepti Jain, Smt Ila Jain, Shri Narender Kumar Jain and Shri Adarsh Jain. Accused Narender Kumar Jain was the vendor of the firm M/s Bhiku Ram Jain Food and accused Ravinder Kumar Jain was the active partner of the firm and both were responsible for the day to day conduct of the business of the said partnership firm. Thereafter, the 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 for violation of provisions of section 2 (ia) (a) & (m), punishable U/s 16 (1) r/w Section 7 of PFA Act 1954.
4. The accused persons were summoned vide order dated 29.03.1996. The accused no. 1 appeared and moved an application U/s 13 (2) of the Act 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 CFL, Mysore for analysis. The Director, CFL on analysing the second counterpart of the sample in question opined vide his Certificate dated 29.05.1996 that "the sample does not conform to the standards laid down for fruit chutney under the provisions of PFA Act 1954 and Rules thereof because the percentage CC No. 28/96 FI Vs. Narender Jain Etc. of acetic acid falls below the minimum requirement of 0.75%.".
5. In pre charge evidence, the prosecution examined one witness namely Shri Bal Mukund, Food Inspector as PW1 and pre charge evidence was closed vide order dated 19.08.1998.
6. Charge for violation of Section 2 (ia) (a) & (m), punishable U/s 16 (1) r/w section 7 PFA Act 1954 was framed against all accused persons vide order dated 15.09.1998 to which all of them pleaded not guilty and claimed trial.
7. Thereafter, in post charge evidence, prosecution examined three witnesses including Sh. Bal Mukund, Food Inspector as PW1, Sh. Satish Kumar Gupta, Food Inspector as PW2 and Shri Gopal Singh, the then SDM / LHA as PW3 and PE was closed vide order dated 20.01.2010.
8. Statements of the accused persons U/s 313 Cr.P.C. were recorded separately wherein they claimed themselves to be innocent and opted not to lead DE hence, the DE was closed vide order dated 31.07.2010.
9. I have heard the Ld. Counsel for the parties and perused the record carefully.
10. The Ld. counsel for the accused persons has vehemently argued that in the present case, the standard of fruit chutney could not be CC No. 28/96 FI Vs. Narender Jain Etc. applied as the sample in question contained fruit as well as vegetable and therefore, the sample article failed on the standard of fruit chutney. Ld. Counsel for the accused further argued that there is huge delay in filing the complaint as the complaint has been filed after almost 10 months from the date of lifting the sample and by that time the shelf life of the sample commodity had already expired and therefore, the accused could not get the correct analysis from the CFL as the Director CFL analysed the sample commodity after three months of the date of expiry. He has further argued that there is variations in the report of PA & CFL and it again shows that either the representative sample was not taken or that due to delay in launching the prosecution, the sample commodity has deteriorated and therefore, the report of Director CFL did not reflect the correct analysis. In support of his contention, the Ld. counsel for the accused has relied upon the judgments reported in Delhi Administration Vs. Bharat Arora and Others 2006(1) FAC 74, State of Haryana Vs. Unique Farmaid P. Ltd. & Ors., M/s Gupta Chemicals Pvt. Ltd and others Vs. State of Rajasthan and another 2002(2) FAC 148, Shri Rohit Mull and another Vs. The State of Goa 2006(1) FAC 57, Hindustan Unilever Limited Vs. State of Gujarat & Anr. 2012(2) FAC 24, Kanshi Nath Vs. State 2005(2) FAC 219 and M/s Raja Ram Seth & Sons & Anr. Vs. Delhi CC No. 28/96 FI Vs. Narender Jain Etc. Administration, 2012 (2) FAC 523.
11. On the other hand, the Ld. SPP has argued that the correct standard as laid down in PFA Rules has been applied and as the sample did not conform to the standards, the prosecution has been launched. He has further argued that the report of Director, CFL being conclusive and supersedes the report of Public Analyst, therefore the accused cannot be given benefit of variations in the reports of PA and CFL. He has further argued that there is no delay in launching the prosecution against the accused and therefore, they are liable for conviction.
12. All the three witnesses examined by the prosecution have deposed more or less as per the averments made in the complaint and substantiated the averments.
13. PW1 Sh. Bal Mukund has deposed in his examinationinchief that on 03.05.1995, he alongwith FI Shri Satish Kumar, under the supervision of LHA Shri Gopal Singh had visited the premises of M/s Bhiku Ram Jain Foods, 5, Shivaji Marg, New Delhi, where accused Narender Kumar was found present conducting the business of various food articles including mango chutney for sale for human consumption. He has further deposed that he purchased 3 sealed bottles of mango chutney of 400 gms each, having identical label declaration on payment of Rs. 135/ vide CC No. 28/96 FI Vs. Narender Jain Etc. vendor's receipt Ex. PW1/A. He has further deposed that three counterparts were prepared at the spot by putting one sealed bottle as such as one counterpart and each counterpart containing the sample was separately packed, fastened, marked and sealed according to PFA Act & Rules. He has further deposed that notice was prepared at the spot and same was given to accused which is Ex. PW1/B and panchnama was also prepared at the spot which is Ex. PW1/C. He has further deposed that all the documents prepared on the spot were read over and explained to accused Narender Jain who after understanding the same signed the same. He has also deposed that two counterparts of the sample in a sealed packet were deposited in intact condition with LHA on 04.05.1995 vide receipt Ex. PW1/E and one counterpart of the sample has already been deposited in intact condition with PA vide PA receipt Ex. PW1/D and PA report is Ex. PW1/F, according to which the sample does not conform to the standards because total acidity in terms of acetic acid is less than the prescribed minimum limit of 0.75%.
14. PW2 Sh. Satish Kumar Gupta who is the Food Inspector and was made a witness at the time of conducting the sample proceedings by FI Sh. Bal Mukund has also deposed on the similar lines as deposed by PW1 in his examinationinchief.
CC No. 28/96 FI Vs. Narender Jain Etc.
15. PW3 Sh. Gopal Singh, the then LHA, under whom supervision and directions, the sample proceedings were conducted has corroborated the version of PW1 and PW2 in his examinationinchief.
16. In the crossexamination, PW 1 has deposed that the standard of fruit chutney was provided in the PFA Rules and mango chutney also comes under the item of fruit chutney as per PFA Rules. He could not comment that standard of mango chutney is provided by GSR No. 184(b), dated 21.03.05 and standards of fruit and vegetable chutney are provided in item No. A.16.41 of Appendix B of PFA Rules. He has denied the suggestion that accused informed that from the office, they only export the goods and article lying there were not for sale. He has affirmed the suggestion that he had not observed any manufacturing in the premises and the sealed sample bottles were exposed for sale.
17. PW2 in his crossexamination has denied the suggestion that accused informed at the spot that the sample commodity was not for sale but for export.
18. PW3 in his crossexamination could not comment that standard of mango chutney is provided in the PFA Rules however, he had deposed that standard of fruit chutney has been laid down in PFA Rules.
19. The case of the prosecution is that on 03.05.1995, FI Shri Bal CC No. 28/96 FI Vs. Narender Jain Etc. Mukund had purchased the sample of Mango Chutney, a food article for analysis from the accused no. 1, which on being analyzed by the PA, did not conform to the standards as the acetic acid was found to be 0.44%, which was below the minimum standard of 0.75%. It is not in dispute that on 03.05.1995, the sample of mango chutney was lifted by the FI and the accused Narender Jain was found conducting the business of food article including mango chutney. However, the accused has contended that since there was no standard of mango chutney at the relevant time therefore, standard laid down for fruit chutney could not be applied because he had also mixed vegetables in the fruit chutney apart from fruit. He has also contended that there is no standard for mango chutney which comprises of fruit and vegetable.
20. A perusal of the Form VI Ex. PW 1/B would reveal the ingredients as --mango pulp, apple pulp, carrot pulp, sugar syrup, dry fruits & spices, contains permitted classII preservatives. It shows that apart from fruit pulp, vegetable pulp has also been mixed for preparing mango chutney. The standard which has been applied by the experts, by which the sample commodity did not conform in terms of acetic acid, was of fruit chutney but no standard has been prescribed for the mango chutney which comprises of fruit as well as vegetable. Therefore, the standard CC No. 28/96 FI Vs. Narender Jain Etc. applied by the experts by which it has been concluded that the sample did not conform to the standard is not applicable.
21. It has been held by Hon'ble Delhi High Court in Delhi Administration Vs. Bharat Arora and Others (supra) that, prescribed standard for fruit chutney can not be pressed into service as product is different and order of acquittal was upheld. In this case, a sample of Mango Nav Rattan Chutney was lifted, which on being analyzed by the PA, the acetic acid was found to be 0.59% as against the prescribed minimum limit of 0.75%. The defence of the accused was that standard of fruit chutney could not be applied because the sample was comprising of fruit as well as vegetable therein. The Ld. trial court after appreciating the contention of the accused, held that the standard prescribed for fruit chutney could not be pressed into service, the content of the food product and sample so lifted being different.
22. In the present case, the sample was lifted on 03.05.1995 and the complaint has been filed on 29.03.1996 i.e. after 10 months of lifting the sample. As per Form VI Ex. PW 1/B, packaging date is FEB1995 and expiry date is FEB1996, meaning thereby that on the date when the complaint was filed, the sample commodity has already expired. After filing of the complaint, the accused has moved the application under section CC No. 28/96 FI Vs. Narender Jain Etc. 13(2) of PFA Act and second counterpart of the sample was sent to the CFL and the CFL examined the sample on 29.05.1996 and by the said time, the sample had already lost its shelf life and therefore, the accused has been deprived to get correct analysis from CFL and benefit of doubt is liable to be given to the accused.
23. It has been held in State of Haryana Vs. Unique Farmaid P. Ltd. & Ors. (supra) that, "It is incumbent on the prosecution to file the complaint expeditiously so that the right of the accused is not lost. ". Similarly in M/s Gupta Chemicals Pvt. Ltd. and others Vs. State of Rajasthan and another (supra), the Hon'ble Apex Court has observed that due to sheer inaction on the part of the inspector, it has not been possible for the appellants to have the sample examined by the Central Insecticides Laboratory and in the meantime, the shelf life of the sample of insecticide seized had expired and for that reason no further step could be taken for its examination therefore, the Hon'ble Apex Court held that continuing this criminal prosecution against the appellant will be a futile exercise and abuse of the process of court. In Rohit Mull and Anr Vs. The State of Goa (supra), the notices under 13(2) of PFA Act were sent to accused after expiry of product of 2 days before date of expiry and it was held that right of petitionersaccused to get samples analyzed from CFL got CC No. 28/96 FI Vs. Narender Jain Etc. frustrated and proceedings were quashed. Likewise in Hindustan Uniliever Limited Vs. State of Gujarat & Anr (supra), it has been observed that, "The complaint came to be lodged after a considerable delay of nearly two years from the date of taking the sample--the best before date of the sample of food items was six months from the date of manufacturing, therefore, on the date when the complaint came to be lodged, the shelf life of the food article in question had expired--the applicant was deprived of a valuable right under subsection (2) of Section 13 to get the sample of food article analyze by the Director, Central Food Laboratory.".
24. I also found substance in the arguments of the Ld. defence counsel that due to delay in launching the prosecution the quality of sample might have deteriorated and that is why there are variation in the reports of PA & Director CFL. Perusal of PA's Report reveals that total soluble solids are to the tune of 73.65% whereas the same are 74.0% in the report of Director CFL. Total Ash is to the tune of 1.97% in PA's Report whereas, it is 2.4% in the report of Director CFL. Though there is no variation in terms of acetic acid but still there are variations in the other two parameters and which is not permissible if it exceeds 0.3% i.e. stated to be permissible limit of variation.
25. In Kanshi Nath Vs. State (Supra) even while certain other CC No. 28/96 FI Vs. Narender Jain Etc. contentions of the accused were rejected, the contention concerning the samples sent to the 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 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". Similarly in M/s Raja Ram Seth & Sons & Anr. Vs. Delhi Administration, 2012 (2) FAC 523 it has been held 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."
26. In view of aforesaid discussion, I am of considered opinion that the prosecution has not been able to prove its case beyond reasonable doubt and the benefit of doubt is liable to be given to the accused person CC No. 28/96 FI Vs. Narender Jain Etc. hence, the accused are acquitted of the charges leveled against them. File be consigned to Record Room.
Announced in the open Court (Balwant Rai Bansal)
on 27th April, 2013 ACMMII/ PHC/ New Delhi
CC No. 28/96
FI Vs. Narender Jain Etc.
CC No. 28/96
DA Vs. Narender Jain Etc.
27.04.2013
Present: Sh. Masood Ahmad, Ld. SPP for complainant.
Accused no. 1 & 2 are present with the counsel Sh. R.D. Goel. Accused no. 3 is being represented by accused no. 1. Vide my separate Judgment of even date dictated and announced in the open court, all accused stand acquitted of the charges leveled against them. Their Previous Bail Bonds / Surety Bonds stand cancelled. Sureties stand discharged. Endorsement on the documents of the previous sureties, if any, be cancelled.
Accused are directed to furnish fresh bail bonds in compliance of Section 437A Cr.P.C. They have furnished fresh B/B & S/B in the sum of Rs. 15,000/. The same are accepted. File be consigned to Record Room.
(BALWANT RAI BANSAL) ACMMII/PHC/ND/27.04.2013 CC No. 28/96 FI Vs. Narender Jain Etc.