Delhi District Court
Da vs . Raj Manchanda Page 1 Of 20 on 19 December, 2013
IN THE COURT OF SHRI BALWANT RAI BANSAL
ADDITIONAL CHIEF METROPOLITAN MAGISTRATEII
PATIALA HOUSE COURTS, NEW DELHI
C.C. No. 67/02
Food Inspector
Department of PFA
Govt. of NCT of Delhi
A20, Lawrence Road
Indl. Area, Delhi - 35
........ Complainant
Versus
Sh. Raj Manchanda S/o Sh. Tilak Raj
M/s Maharaja Restaurant,
13, Janpath Bhawan,
Janpath, New Delhi - 110001
R/o E42, Lajpat NagarIIIrd, New Delhi
........ VendorcumProprietor
COMPLAINT U/S 16 OF THE PREVENTION OF
FOOD ADULTERATION ACT, 1954
Serial number of the case : 67/02
Date of the commission of the offence : 06.02.2002
Date of filing of the complaint : 01.11.2002
Name of the Complainant, if any : Shri Bal Mukand, Food Inspector
Offence complained of or proved : Violation of provisions of Section 2
CC No.67/02
DA Vs. Raj Manchanda Page 1 of 20
(ia) (a) (b) (j) & (m) of PFA Act 1954
and violation of provisions of Rule 23
r/w Rule 28 & 29 of PFA Rules;
punishable U/s 16(1A) r/w section 7 of
the PFA Act.
Plea of the accused : Pleaded not guilty
Final order : Convicted
Arguments heard on : 07.11.2013
Judgment announced on : 19.12.2013
J U D G M E N T
1. The present complaint has been filed on 01.11.2002 by the Delhi Administration through FI Sh. Bal Mukand against the accused Raj Manchanda. It is stated in the complaint that on 06.02.2002 at about 5.00 PM, FI Sh. Jeet Ram purchased a sample of Dal Arhar a food article for analysis from Raj Manchanda S/o Tilak Raj at M/s Maharaja Restaurant, 13, Janpath Bhawan, Janpath, New Delhi110001, where the said food article was found stored for sale and where accused Raj Manchanda was found conducting the business of the said food article at the time of sampling. FI Sh. Jeet Ram purchased approximately 750 gms of Dal Arhar taken from an open polythene bag bearing no label declaration. The sample was taken after proper mixing the Dal Arhar with the help of a clean and dry Jhaba by rotating it in all possible directions under the supervision and direction of Sh. T.S. Mutti, SDM/LHA. Thereafter, the sample commodity was divided into three equal parts by Food Inspector by putting it in three clean and dry glass bottles and each bottle containing the sample was separately packed, fastened and sealed according to the PFA Act and Rules. The signatures of CC No.67/02 DA Vs. Raj Manchanda Page 2 of 20 vendor were obtained on the LHA slip and the wrapper of the bottles containing the sample. Notice was given to accused and price of sample was also paid to him vide vendor's receipt dated 06.02.2002. Panchnama was also prepared at the spot. All these documents prepared by Food Inspector were signed by accused Raj Manchanda and the other witness namely Sh. Bal Mukand, FI. It is stated that before starting the sample proceedings, efforts were made to get the public witnesses to join the proceedings, but none came forward and as such Sh. Bal Mukand, FI joined as witness.
2. It is further stated that one counterpart of the sample in intact condition bearing LHA Code No. TSM/LHA/1367 was sent to the Public Analyst, Delhi and two counterparts of the sample in intact condition were deposited with LHA. The Public Analyst analysed the sample and opined that "The sample is adulterated because it is coloured with synthetic colouring matter viz. Tartrazine".
3. It is stated that during investigation it was found that Sh. Raj Manchanda S/o Sh. Tilak Raj was the VendorcumProprietor of M/s Maharaja Restaurant, 13, Janpath Bhawan, Janpath, New Delhi110001 at the time of sampling and as such he is incharge and responsible for day to day conduct of the business of the said shop. After conclusion of the investigation, 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) (j) and (m) of the PFA Act, violation of Rule 23 r/w Rules 28 and 29 of the PFA Rules which is punishable U/s 16 (1A) r/w Section 7 of the PFA Act.
CC No.67/02 DA Vs. Raj Manchanda Page 3 of 204. The accused was summoned vide order dated 01.11.2002. The accused appeared and was admitted to bail. The accused on appearing did not exercise his right U/s 13 (2) of the PFA Act to get analyzed the second counterpart of the sample from Central Food Laboratory (CFL).
5. The prosecution examined Food Inspector Sh. Jeet Ram, who conducted the sample proceedings, as PW1 and FI Bal Mukand, who was made a witness in the sample proceedings, as PW2 towards precharge evidence and vide order dated 04.06.2009, pre charge evidence was closed.
6. Charge for violation of sub clause (a) (b) (j) and (m) of Section 2 (ia) of the PFA Act and for violation of Rule 23 r/w Rule 28 and 29 of PFA Rules 1955; punishable U/s 16 (1A) r/w section 7 of the Act was framed against the accused vide order dated 04.12.2009 to which accused pleaded not guilty and claimed trial.
7. Thereafter, in order to prove its case, in post charge evidence the prosecution examined three witnesses including Food Inspector Sh. Jeet Ram as PW1, FI Bal Mukand as PW2 and Sh. T.S. Mutti, the then SDM/LHA under whose direction the sample proceedings were conducted as PW3 and PE was closed vide order dated 31.01.2012.
8. Statement of accused U/s 313 Cr.P.C. was recorded on 22.08.2012 wherein accused claimed himself to be innocent, however he opted not to lead evidence in his defence. Accordingly, DE was closed vide order dated 22.08.2012.
9. I have heard the Ld. Counsel for the parties and perused the record carefully.
CC No.67/02 DA Vs. Raj Manchanda Page 4 of 2010. Ld. Counsel for accused has vehemently argued that there is violation of Rule 14 of PFA Rules by the Food Inspector which is the mandatory requirement to be followed by the Food Inspector while taking the sample. He contended that the Food Inspector did not use the clean and dry Jhaba in the sample proceedings nor the sample bottles were made clean and dry at the spot, which is the the mandatory requirement under Rule 14 of PFA Rules and, therefore, accused cannot be held guilty for the faulty procedure adopted by the Food Inspector. In support of his contentions, the Ld. Defence Counsel has placed reliance in the judgments reported in Sardarmal Jain Vs. Nagar Nigam & Anr., Criminal Appeal No. 615 of 1987, decided on 17.01.1995 , State of Gujarat Vs. Bhupendra M. Mehta, 1999 (2) FAC 201, Jayant Navlakha & Anr. Vs. State of Punjab, 1999 (2) FAC 207 and Koyakuty Vs. Food Inspector, 2000 (2) FAC
238. He further argued that no public witness has been joined in the sample proceedings which is also a mandatory requirement to be followed by the Food Inspector. He also argued that there is contradiction in the statement of PWs regarding quantity of Dal Arhar available at the time of sample proceedings and capacity of the bag in which the Dal Arhar was lying and, therefore, adverse inference is liable to be drawn against the prosecution.
11. On the other hand, Ld. SPP for complainant argued that there is no violation of Rule 14 of PFA Rules and clean and dry Jhaba as well as sample bottles were used in the sample proceedings. He submitted that if clean and dry Jhaba was not used in the sample proceedings, then the colour could not have been detected in the sample by the Public Analyst and some other substance i.e. moisture, fungus etc. might have detected as it was not the case of the accused CC No.67/02 DA Vs. Raj Manchanda Page 5 of 20 that he was selling some colours in the restaurant. Ld. Prosecutor has vehemently contended that detection of synthetic colour, which is not permissible in the Dal Arhar, sample of which was lifted in the present case as per PFA Act and Rules, shows that accused has adulterated the sample commodity and it cannot be said that synthetic colour was detected in the sample due to uncleaned Jhaba and sample bottles. He further argued that there is sufficient evidence on record to the effect that clean and dry Jhaba and sample bottles were used in the sample proceedings. The Ld. Prosecutor further submitted that FI tried to join some public witnesses in the sample proceedings, but none agreed. He argued that there is sufficient evidence on record to reflect that despite best efforts made by FI, none of the public witness agreed to join sample proceedings. He further argued that even otherwise, evidence of Food Inspector alone is sufficient to base the conviction of the accused. In support of this contention, the Ld. Prosecutor has relied upon the judgments reported in Prem Ballab & Anr. Vs. The State (Delhi Admn.), Criminal Appeal No. 287 of 1971 and Nagasuri Pullaha Vs. State of Andhra Pradesh, 2003 Cri. LJ 773. It is also argued by Ld. Prosecutor that accused did not exercise his right U/s 13 (2) of PFA Act to get analyzed the second counterpart of the sample from Central Food Laboratory and, therefore, the report of Public Analyst is final, according to which synthetic colour was detected in the sample which is not permissible in Dal Arhar as per PFA Act and Rules and, therefore, accused is liable to be convicted.
12. All the witnesses examined by the prosecution have deposed as per the averments made in the complaint.
13. PW1 FI Sh. Jeet Ram who conducted the sample proceedings in CC No.67/02 DA Vs. Raj Manchanda Page 6 of 20 the present case deposed in his examinationinchief that on 06.02.2002 he along with FI Bal Mukand and other officials of the PFA department under the supervision and directions of SDM/LHA Sh. T.S. Mutti, visited the premises of M/s Maharaja Restaurant, 13, Janpath Bhawan, Janpath, New Delhi, where accused Raj Manchanda was found conducting the business of food articles stored there for sale for human consumption including Dal Arhar. He further deposed that they disclosed their identity and intention to purchase a sample of Dal Arhar (ready for sale) for analysis to which accused agreed and thereafter at about 5.00 PM he purchased 750 gms of Dal Arhar taken from an open polythene bag having no label declaration on payment of Rs. 22.50/ vide vendor receipt Ex. PW1/A, which was not accepted by the vendor stating that Dal was not meant for sale but same is used in preparation of Sambhar for sale for human consumption. He further deposed that sample was taken after properly mixing the same with the help of a clean and dry jhaba by rotating it in all possible directions. He further deposed that thereafter he divided the sample into three equal parts by putting them into three clean and dry glass bottles and each sample bottle was separately packed, fastened and sealed according to PFA Act and Rules. He further deposed that he prepared Notice in From VI Ex. PW1/B and Panchnama Ex. PW1/C and a copy of notice was also given to the accused and all the aforesaid documents were read over and explained to the accused who after understanding the same signed the same.
14. PW1 further deposed that on 07.02.2002, one counterpart of the sample in intact condition was deposited with the PA vide receipt Ex. PW1/D and remaining two counterparts were deposited with the LHA on the same day vide CC No.67/02 DA Vs. Raj Manchanda Page 7 of 20 receipt Ex. PW1/E. He further deposed that report of PA was received according to which the sample was found adulterated and during investigation he came to know that Sh. Tilak Raj expired before sampling and his son Raj Manchanda was incharge and responsible for day to day affairs of M/s Maharaja Restaurant. He further deposed that on completion of investigation by him, the complete case file was sent to the Director (PFA) who accorded requisite consent for launching prosecution against the accused and accordingly present complaint was filed by FI Bal Mukand.
15. During his deposition, PW1 has also placed on record the Public Analyst's report as Ex. PW1/F, letter sent by him during investigation to Medical Health Officer, NDMC regarding the license as Ex. PW1/G, its reply sent by Chief medical Officer, Head Quarter as Ex. PW1/G1, letter sent to STO, Ward No. 3 as Ex. PW1/H, letter sent to accused/vendor as Ex. PW1/I, its reminder as Ex. PW1/J, consent given by the Director, PFA for initiating the prosecution against the accused as Ex. PW1/K and complaint filed by FI Bal Mukand as Ex. PW1/L.
16. PW2 FI Bal Mukand who was made a witness in the sample proceedings has deposed more or less on the similar lines as deposed by PW1 and has placed on record the copy of intimation letter sent to the accused along with PA report as Ex. PW2/A and the photocopy of the postal registration receipt as Ex. PW2/B.
17. PW3 Sh. T.S. Mutti, the then SDM/LHA under whose direction sample proceedings were conducted has corroborated the testimony of PW1 in his examinationinchief.
CC No.67/02 DA Vs. Raj Manchanda Page 8 of 2018. The accused in his statement recorded U/s 313 Cr.P.C. has not disputed his presence on 06.02.2002 at M/s Maharaja Restaurant, 13, Janpath Bhawan, Janpath, New Delhi when a raid was conducted by PFA team including FI Jeet Ram and FI Bal Mukand under the supervision and direction of SDM/LHA Sh. T.S. Mutti and lifting of sample of Dal Arhar from him by FI Jeet Ram which on being analyzed by the Public Analyst was found to be adulterated as it contained synthetic colour 'Tartrazine' which is not permissible in pulses as per PFA Act and Rules. However, it was denied by accused that he had been dealing with the food articles lying in the restaurant for further sale. He contended that the Dal Arhar, sample of which was lifted was not meant for sale, but same was to be used in preparing the Sambhar required in the restaurant which was being kept in the polythene bag with label. It was further contended by accused that the entire procedure of collecting the sample was wrong as the Jhaba, the scale and the bottles used in the sample proceedings were not made clean and dry and the FI collected the sample without cleaning the Jhaba, the scale as well as the bottles. Accused further contended that PA report is wrong due to bad sampling procedure adopted by the FI. As per accused, the sample was definitely not adulterated at all but the same, if it comes to that, can be the result of adopting a faulty procedure adopted by FI as the sample appears to have got contaminated due to the Jhaba, scale and bottles which were not made clean and dry before using the same.
19. The case of the prosecution is that on 06.02.2002, FI Jeet Ram along with FI Bal Mukand under the supervision and direction of SDM/LHA Sh. T.S. Mutti visited the premises of M/s Maharaja Restaurant, 13, Janpath Bhawan, CC No.67/02 DA Vs. Raj Manchanda Page 9 of 20 Janpath, New Delhi and lifted a sample of Dal Arhar for analysis from accused, who was found conducting the business of said food article at the time of sampling at the said restaurant. The sample lifted from the accused was sent to the Public Analyst for analysis, who after analyzing the sample vide its report Ex. PW1/F found the same adulterated as it was containing synthetic colour viz 'Tartrazine' which is not permissible in Dal Arhar as per PFA Act and Rules.
20. Though, in the crossexamination of PW3 Sh. T.S. Mutti, the then SDM/LHA, a suggestion was put by the Ld. Counsel for accused that they never visited the Restaurant in question or that they visited some other Restaurant and lifted the sample from there, which was denied by the witness. But, in view of the statement of accused recorded U/s 313 Cr.P.C., it is categorical clear that there is no dispute that on 06.02.2002, FI Jeet Ram along with FI Bal Mukand under the supervision and direction of SDM/LHA Sh. T.S. Mutti visited the aforesaid restaurant and lifted the sample of Dal Arhar from accused. In reply to Question No. 1 U/s 313 Cr.P.C., the accused has not disputed the visit of aforesaid officials of PFA Department and lifting of the sample of Dal Arhar from him from the aforesaid restaurant. He only took a plea that he had not been dealing with the food articles for further sale and the Dal Arhar was to be used in preparing the Sambhar required in the restaurant. Again, in reply to Question No. 2, he admitted that he agreed for giving the sample of Dal Arhar for analysis to FI Jeet Ram. As such, it is not in dispute at all that sample of Dal Arhar was lifted from the accused from the restaurant in question on 06.02.2002 and hence suggestion put to PW3 that they never visited the restaurant in question and lifted the sample from other restaurant is misplaced.
CC No.67/02 DA Vs. Raj Manchanda Page 10 of 2021. It is also to be noted that in his statement U/s 313 Cr.P.C., the accused has tried to take a defence that Dal Arhar, sample of which was lifted in the present case was not meant for sale, but same was to be used in preparation of Sambhar. Even if it is so, still as per Section 10 (2) of PFA Act, the Food Inspector was within his power to lift the sample of Dal Arhar which was to be used in preparation of Sambhar as per case of the accused. Clause 2 of Section 10 of PFA Act empowers the Food Inspector to enter and inspect any place where any article of food is manufactured, or stored for sale, or stored for the manufacture of any other article of food for sale. Admittedly, the Sambhar in which Dal Arhar was to be used as an ingredient was meant for sale in the restaurant. Therefore, Food Inspector has not acted beyond his jurisdiction by lifting the sample of Dal Arhar which was kept/stored in the restaurant for preparation of Sambhar, which was meant for sale. Even otherwise, as per Section 2 (xiii) of PFA Act, "sale" means sale of any article of food, whether for cash or on credit or by way of exchange and whether by wholesale or retail, for human consumption or use, or for analysis, and includes an agreement for sale, an offer for sale, the exposing for sale or having in possession for sale of any such article, and includes also an attempt to sell any such article. As such, definition of "sale" contained in Section 2 (xiii) of the Act is not confined to the sale of articles of food for human consumption only but extends to the sale of any article of food regardless of the use to which it is put. Therefore, Dal Arhar kept or stored in the restaurant for preparation of Sambhar, which was admittedly for sale in the restaurant is covered under the definition of "sale" as per Section 2 (xiii) of the PFA Act. Hence, the defence of the accused that Dal Arhar was not meant for CC No.67/02 DA Vs. Raj Manchanda Page 11 of 20 sale, but was to be used in preparation of Sambhar, is of no help to the accused.
22. However, the main contention of the accused is that bad sample procedure was adopted by the Food Inspector as clean and dry Jhaba was not used in the sample proceedings and as such possibility of contamination of sample bottles in which the sample was kept cannot be ruled out and hence there is violation of Rule 14 of PFA Rules 1955.
23. Before proceeding further, let us discuss the relevant provisions of law. Rule 14 of PFA Rules describes the manner of sending sample for analysis and reads as under: "Samples of food for the purpose of analysis shall be taken in clean dry bottles or jars or in other suitable containers, which shall be closed sufficiently tight, to prevent leakage, evaporation or in the case of dry substance, entrance of moisture and shall be carefully sealed."
24. In the present case, admittedly, the sample of Dal Arhar was taken with the help of the Jhaba. Now, it is to be seen as to whether the sample was taken in a proper manner and in accordance with Rule 14 of PFA Rules so as to eliminate the possibility of presence of any colouring material, in the sample bottles, in which the sample was ultimately put. In this regard, let us discuss the evidence produced by prosecution.
25. PW1 FI Jeet Ram who conducted the sample proceedings stated in his evidence that the sample was taken after properly mixing the Dal Arhar with the help of the dry and clean Jhaba by rotating it in all possible directions several times and then he divided the sample into three equal parts by putting them in three clean and dry glass bottles separately. In his precharge cross examination, PW1 categorically stated that bottles were already clean and dry CC No.67/02 DA Vs. Raj Manchanda Page 12 of 20 and the same were not made again clean and dry at the spot. No further suggestion was put to PW1 that bottles were not already clean and dry. In his crossexamination after charge also, PW1 categorically stated that Jhaba was already clean and dry and as such same was not made again clean and dry at the spot and same was provided by the vendor. A suggestion was put to him that sample was not properly lifted and Jhaba used for lifting the sample was not clean, which was denied by the witness. He stuck to his stand regarding cleaning of bottles and categorically stated that bottles were already dry and clean and the same were not made again dry and clean at the spot. He was not further suggested that bottles were not already clean and dry or that he was deposing falsely to this effect.
26. Similarly, PW2 in his evidence has corroborated the testimony of PW1 when he stated that the sample was taken after properly mixing the Dal Arhar with the help of dry and clean Jhaba by rotating it in all possible directions several times and then FI Jeet Ram divided the sample into three equal parts by putting them in three clean and dry glass bottles separately. In his cross examination before charge, this witness stated that Jhaba was provided by the vendor and Jhaba was already clean and dry and the same was not made again clean and dry at the spot. He further stated that bottles were already clean and dry and the same were not made again clean and dry at the spot. In his cross examination after charge, PW2 denied the suggestion that he was not present at the spot at the time of sample proceedings or that he did not accompany the PFA team to the spot. He stated that he had observed the Jhaba with his naked eyes and it was appearing to be clean and dry. He admitted that the Jhaba was not made CC No.67/02 DA Vs. Raj Manchanda Page 13 of 20 clean and dry at the spot. Voluntarily, he stated that the Jhaba was already clean and dry. Again, this witness was not suggested that Jhaba was not already clean and dry or that he was falsely deposing to the said effect.
27. PW3 also in his evidence has corroborated the statement of PW 1 and PW2 regarding cleanliness of the Jhaba and sample bottles when he stated that 750 gms. of Dal Arhar was taken from the polythene bag with the help of a clean and dry Jhaba and same was weighed in a Pan Scale. He further deposed that the sample was divided into three equal parts and was packed in the clean and dry bottles. In his crossexamination, PW3 denied the suggestion that the Jhaba used for collecting the sample of Dal Arhar was not clean and dry or that the sample bottles were also not clean and dry at the material time. He stated that the Jhaba was not made clean and dry at the spot as it was already in clean condition. He further stated that Jhaba was supplied by the accused. He denied the suggestion that Jhaba was not supplied by the accused.
28. From the aforesaid testimony of PWs, it has come on record that there is consistency in the statement of PWs to the effect that Jhaba used in the sample proceedings was provided by the vendor and the Jhaba and the sample bottles used in the sample proceedings were already clean and dry and hence same were not made again clean and dry at the spot. Except giving suggestion to PWs that Jhaba and sample bottles were not made clean and dry at the spot, nothing material could be extracted from the statement of PWs in their cross examination. The accused has not led any evidence to prove contrary. The accused though in his statement U/s 313 Cr.P.C. took a plea that the sample appears to have got contaminated due to the Jhaba, scale as well as bottles having CC No.67/02 DA Vs. Raj Manchanda Page 14 of 20 not been got cleaned, but this plea of the accused remained unsubstaintiated. The accused has not led any evidence to prove the same.
29. I also find substance in the argument of Ld. SPP for complaint that since synthetic colour was found in the sample commodity, therefore question of contamination of Jhaba and sample bottles does not arise. In that eventuality, if the Jhaba and sample bottles were not clean and dry, moisture or fungus would have been found by the Public Analyst, but the colour could not have been detected because it was not the case of accused that he was selling colour in the restaurant or that Food Inspector has mixed the colour in the sample commodity.
30. In view of aforesaid testimony of PWs which is consistent regarding the cleanliness of Jhaba and sample bottles and further in the absence of any evidence adduced by accused in support of his claim that clean and dry Jhaba or sample bottles were not used in the sample proceedings , it cannot be said there is any violation of Rule 14 on the part of the Food inspector at the time of lifting the sample.
31. So far the authorities relied upon by the Ld. Counsel for accused are concerned, in Sardarmal Jain case, the facts were entirely different and distinguishable from the facts of the present case. In the said case, the Food Inspector kept the whole lot of burfi on a newspaper which has been given by the servant of the appellant/accused and in those circumstances, it was held by the Hon'ble Apex Court that the possibility cannot be ruled out that the Rhodamine ink used in printing of the newspaper may, on contact with the burfi, get transmitted on the burfi.
CC No.67/02 DA Vs. Raj Manchanda Page 15 of 2032. Similarly, in State of Gujarat Vs. Bhupendra M. Mehta (cited supra), a specific question was put to Food Inspector in his crossexamination regarding the cleaning of the bottles, but there was no answer by the witness and he only stated that bottles were lying in his custody for 8 days and, therefore, bottles were clean or not was not established by the prosecution. In those circumstances, it was held by the Hon'ble Gujarat High Court that there was violation of Rule 14 of PFA Rules by the Food Inspector. However, in the present case, there is consistent and categorical stand of all the PWs throughout in their evidence to the effect that clean and dry Jhaba and sample bottles were used in the sample proceedings. Hence, this authority is also not applicable in the facts and circumstances of the present case.
33. In another case of Jayant Navlakha & Anr. Vs. State of Punjab (supra) relied upon by the Ld. Counsel for accused, it was held by the Hon'ble Punjab & Haryana High Court that mere statement of Food Inspector in his examinationinchief about cleanliness of bottles would be of no avail to the prosecution when there is no other evidence positively showing that there was due compliance with provisions of Rule 14 of PFA Rules. However, in the present case, as discussed herein above, there is sufficient evidence on record to the effect that sample bottles, in which the sample was ultimately kept after diving into three equal parts, were clean and dry. Therefore, this authority is also of no help of the accused. Likewise case of Koyakutty Vs. Food Inspector (supra), is distinguishable on the facts as in the said case, the Food Inspector used an intermediary vessel for the purpose of purchasing the sample of coconut oil. There was absolutely no evidence in the said case to show that the said vessel in CC No.67/02 DA Vs. Raj Manchanda Page 16 of 20 which the Food Inspector took the sample was made clean and dry as required under Rule 14. Even the PW1, who was the Food Inspector was not prepared to swear before the court that intermediary vessel was clean and dry. However, in the present case, all the PWs throughout in their evidence have stuck to their stand regarding the cleanliness of the sample bottles.
34. So far the another contention of the accused that no independent public witness has been joined in the sample proceedings, is concerned, PW1 in his evidence stated that before taking the sample he tried his best to procure some public witnesses by requesting some neighbourers, customers and passersby to join the sample proceedings but as none agreed, on his request FI Bal Mukand agreed and joined as witness. In his crossexamination after charge, he stuck to his stand and categorically stated that public witnesses were requested to join the sample proceedings but none agreed. He further stated that as none of the public witnesses agreed, he requested FI Bal Mukand to become as a witness. PW2 & PW3 also corroborated the testimony of PW1 in this respect in their examinationinchief. PW2 in his crossexamination before charge also stated that 23 public persons came at the spot and they were asked to join the sample proceedings but they refused. PW3 in his crossexamination also stated that it was the FI, who requested the customers sitting in the Restaurant to join the sample proceedings as a witness. Voluntarily, he stated that passersby were also requested by the FI to join as a witness, but they did not agree. He denied the suggestion that FI did not request any customer to join as a witness.
35. It has been held by the Hon'ble Apex Court in Prem Ballab & Anr. Vs. The State (Delhi Admn.), Criminal Appeal No. 287 of 1971, that CC No.67/02 DA Vs. Raj Manchanda Page 17 of 20 "There is no rule of law that conviction cannot be based on the sole testimony of a Food Inspector. It is only out of a sense of caution that the courts insist that the testimony of a Food Inspector should be corroborated by some independent witness. This is a necessary caution which has to be borne in mind because the Food Inspector may in a sense be regarded as an interested witness, but this caution is a rule of prudence and not a rule of law: if it were otherwise, it would be possible for any guilty persons to escape punishment by resorting to the devise of bribing punch witnesses." Similarly, in Nagasuri Pullaha Vs. State of Andhra Pradesh, 2003 Cri. LJ 773, it has been held that if the evidence of the FI is reliable and trust worthy and supported by the Public Analyst report, it has no bar for believing the evidence of FI in the absence of examination of independent mediator. Corroboration must be insisted only if the evidence of FI is full of contradictions. There is no need to insist for examination of independent witnesses where FI evidence is reliable.
36. In view of aforesaid testimony of PW1 FI Jeet Ram regarding his explanation for non joining of public witnesses, which is corroborated by the other PWs, it is apparent that the FI Jeet Ram made best efforts to join public witness, but as none agreed, then he was left with no option to join FI Bal Mukand, who was accompanying with him, as a witness in the sample proceedings. Therefore, it cannot be said that no efforts were made by the Food Inspector to join public witnesses as contended by the Ld. Defence Counsel. Further, in view of law laid down in the authorities cited supra, it cannot be said that since no public witness has joined the sample proceedings, the case of the prosecution is liable to be thrown away.
CC No.67/02 DA Vs. Raj Manchanda Page 18 of 2037. The Ld. Counsel for accused has also pointed out the contradictions in the statement of PWs regarding quantity of Dal Arhar lying in the polythene bag at the time of sampling. PW1 in his crossexamination before charge stated that there was about 15 Kg. of Dal Arhar lying in the polythene bag. He again said 810 Kg. Dal Arhar was lying in the bag. He further stated that the capacity of the polythene bag/plastic katta was about 40 Kg. He was suggested that there was 2 Kg of Dal Arhar, which he denied. PW2 in his cross examination before charge stated that there was about 1012 Kg. of Dal Arhar in the polythene bag and the capacity of the polythene bag/ plastic katta was about 20 Kg. However, PW3 in his crossexamination stated that as far his knowledge goes, there was about 1 - 1 ½ Kg of Dal Arhar in the bag. He further stated that the remaining quantity of Dal Arhar in the polythene bag might be amount 250 750 gms. This witness again stated that he cannot comment as to what was the approximate quantity of the Dal left in the bag after taking the sample.
38. Though there are some minor discrepancies in the statement of PWs regarding quantity of Dal Arhar lying in the bag at the time of sample proceedings, but on the basis of aforesaid minor discrepancies, which does not go to the root of the matter, the case of the prosecution cannot be said to have been dented. The fact of the matter remains that sample of Dal Arhar was lifted from the accused, which on being analyzed by the Public Analyst was found to be adulterated. Since, the accused did not exercise his right U/s 13 (2) of PFA Act to get analyzed the second counterpart of the sample from Director, CFL, the report of Public Analyst became final and conclusive. The Public Analyst vide its report Ex. PW1/F found the sample lifted from accused adulterated as it was CC No.67/02 DA Vs. Raj Manchanda Page 19 of 20 coloured with synthetic colour viz Tartrazine, which is not permissible in Dal Arhar and same is in violation of Rule 28 and Rule 29 of PFA Rules 1955. Therefore, the contentions of the accused in the written arguments that Dal is always used after its through washing with boiling water thrice and in the wake thereof the extraneous matter, if any, such as colouring etc. gets automatically washed out and further that no 'Weeviled grain', 'Rodent hair and excreta', 'Insect infestation', 'Other food grain', 'Kesari Dal', 'Aflatoixin' and 'Uric Acid' were in the sample and same were found Nil, are of no consequence.
39. In view of above discussion, I am of the considered opinion that the prosecution has proved its case against the accused beyond reasonable doubt. Hence, the accused is held guilty for violation of provisions of Section 2(ia) (a)
(b) (j) & (m) and also for violation of Rule 23 r/w Rule 28 & 29 of PFA Rules 1955 and is accordingly liable to be convicted for the said offences, which is punishable under section 16(1A) r/w Section 7 of PFA Act 1954.
Now to come up on 09.01.2014 for arguments on quantum of sentence.
Announced in the open Court (Balwant Rai Bansal)
on 19th December, 2013 ACMMII/ PHC/ New Delhi
CC No.67/02
DA Vs. Raj Manchanda Page 20 of 20
CC No. 67/02
DA Vs. Raj Manchanda
19.12.2013
Present: Sh. Masood Ahmad, Ld. SPP for complainant.
Accused with counsel Sh.S.D. Wadhwa.
Vide my separate Judgment of even date dictated and announced in the open court, accused is held guilty for violation of provision of Section 2(ia)
(a) (b) (j) & (m) and also for violation of Rule 23 r/w Rule 28 & 29 of PFA Rules 1955 and is accordingly liable to be convicted for the said offences, which is punishable under section 16 (1A) r/w Section 7 of PFA Act 1954.
Put up for arguments on quantum of sentence on 09.01.2014.
(Balwant Rai Bansal) ACMMII/PHC/ND/19.12.2013 CC No.67/02 DA Vs. Raj Manchanda Page 21 of 20