Delhi District Court
In Re vs A-1) Inder Pal Singh on 29 August, 2016
IN THE COURT OF SH. ASHU GARG,
Addl. Chief Metropolitan Magistrate - II (New Delhi),
Patiala House Courts, New Delhi
CC No. 147/03
Unique Case ID No.
Date of Institution: 31.03.2003
Date of reserving judgement: 29.08.2016
Date of pronouncement: 29.08.2016
In re:
Delhi Administration / Food Inspector
Department of PFA,
Govt. of NCT of Delhi
A-20, Lawrence Road Industrial Area,
Delhi-110 035 ... Complainant
versus
A-1) Inder Pal Singh
A-2) M/s. Parikram Revolving Restaurant
A-3) M/s. Northern Traders
A-4) Subhash Chander Ahuja
A-5) Suman Ahuja
[Since Discharged]
A-6) Brijender Singh
S/o. Sh. Bhupinder Singh
R/o. 8970, Multani Dhanda,
Paharganj, Delhi. ... Accused persons
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 CC No. 147/03 Page 1 of 13 persons have violated the provisions of the PFA Act and Rules. The accused no. 1 is stated to be the vendor-cum-nominee of accused no. 2 restaurant , from where the food article, that is, 'groundnut salad oil' was lifted for sampling. Accused no. -3 is stated to be the supplier firm of which accused no. 4 and 5 were the partners. Accused no. 6 is stated to be the proprietor of the manufacturing firm M/s. Bawasons Fruit Products that had manufactured / packed the commodity in question.
2. As per the complaint, on 03.01.2001, the food officials consisting of Food Inspector (FI) Usha Kiran and Field Assistant (FA) Shivaji Mehto under the supervision of Local Health Authority (LHA)/SDM Sh. Manoj Kumar Aggarwal reached along with their staff at the premises of accused no.2 restaurant at 22, Kasturba Gandhi Marg, New Delhi, where the accused no. 1 was found having stored 'groundnut salad oil' lying in sealed pet bottles of 500 ml each bearing identical label declaration, for sale for human consumption. The FI disclosed his identity and expressed his intention to purchase a sample of 'groundnut salad oil' from the vendor, to which he agreed. The sample 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, panchnama, 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 08.02.2001, the PA found the sample to be adulterated due to presence of suspended matter. Upon receipt of report, the SDM/LHA ordered CC No. 147/03 Page 2 of 13 investigation which was carried out by FI. It was found that the food article had been supplied to accused no.2 firm by accused no.3 firm vide a bill dated 21.12.2000. Accused no.4 and 5 are stated to be the partners of accused no.3 firm. It was also found that accused no.6 was the manufacturer / packer of the food article in question. 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 31.03.2003 alleging violation of section 2(ia)(a), (b) and (m) 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 31.03.2003. The accused no.1 appeared and filed an application under section 13(2) of PFA Act thereby exercising 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 17.05.2003, opining the sample to be not conforming to the PFA Rues due to its testing positive for rancidity.
4. Subsequently, vide order dated 13.11.2006, accused no.1 to 5 were given the benefit of warranty under section 19 (2) of PFA Act and were discharged from the matter. Further trial was faced only by accused no.6.
5. Pre charge evidence was recorded wherein the prosecution examined PW-1FI Usha Kiran and PW-2 FI Bal Mukund. Based on their CC No. 147/03 Page 3 of 13 depositions, charge was framed by the court vide order dated 01.02.2010 for commission of the offence punishable under section 7/16(1A), being violation of sections 2(ia)(a), (b) and (m). Subsequently, vide order dated 06.09.2012, the charge was amended and on the basis of CFL certificate, charge was framed for commission of the offence punishable under section 7/16(1)(a) being violation of sections 2(ia)(a) and (m) of PFA Act, to which accused no.6 pleaded not guilty and claimed trial. At the trial, the witnesses already examined in pre charge stage were recalled for further cross examination in post charge stage. No other witness was examined by the prosecution.
6. PW-1 was the FI who had visited the spot for sample proceedings along with FA Shivji Mehto under the supervision of SDM / LHA Sh. Manoj Kumar Aggarwal. She deposed about the proceedings conducted by her on 03.01.2001 and narrated the steps undertaken by her during the sample proceedings, including disclosing her identity, expressing intention to purchase sample for analysis, lifting the sample of 3 sealed bottles of 500 ml each of 'groundnut salad oil' bearing identical label declaration, dividing it in three parts by treating one bottle as one counterpart, fastening, sealing, marking the sample bottles, and obtaining signatures of vendor and witnesses. She also proved the necessary documents including the vendor's receipt Ex. PW-1/A, Notice Ex. PW-1/B, Panchnama Ex. PW-1/C, Notice under section 14A Ex. PW-1/D, PA Receipt Ex. PW-1/E and LHA receipt Ex. PW-1/F. PA report Ex. PW-1/G was received and investigation was started. Several letters were written to various government departments and accused persons to ascertain the constitution CC No. 147/03 Page 4 of 13 of the business concerns involved. Further investigation was conducted by PW-2 FI. On the basis of sanction Ex.PW1/M of the Director PFA, the complaint Ex. PW-2/A was filed in the court. A copy of PA report with intimation letter Ex. PW-2/B was sent to the accused through post. 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. Statement of the accused no. 6 under section 313 CrPC was recorded on 29.08.2016 wherein he denied the allegations and pleaded innocence. He denied the sample proceedings on the ground that he was not present in those proceedings, though accepted the matters of record. He questioned the CFL report on the ground that the sample failed due to natural process as there was delay in analysis and claiming that the sample becomes rancid after delay. He chose not to 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 no. 6 beyond reasonable doubt, on the ground that he has not been able to rebut the findings of the CFL report dated 17.05.2003 which as per section 13(3) of PFA Act is final and conclusive. It 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 CC No. 147/03 Page 5 of 13 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 no.6 and have carefully perused the material available on record.
11. It is to be understood that the notice framed against the accused no.6 is for violation of section 2(ia)(a) and (m) of the PFA Act on the basis of CFL report. This is important to note because the ingredients of these offences are different and distinct. 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. On the other hand, 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.
12. In the case at hand, it is an admitted position, as is clear from the two reports of PA and CFL that the food article fell under Item A.17.03 of CC No. 147/03 Page 6 of 13 Appendix-B of the PFA Rules. Specific standards have been prescribed for this food product 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. When compared, it is seen that the PA had given a finding that the sample was free from rancidity.
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 replaced by the certificate of the Director.... Superseded is a strong word.
CC No. 147/03 Page 7 of 13It means obliterate, set aside, annul, replace, make void, inefficacious or useless, repeal. The Director's cetificate supersedes the report given by the public analyst. Once superseded it does not survive for any purpose. It will be anamolous 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. It would be seen that the CFL report has negated the results of PA on the sole incriminating factor. The observation of the PA that the sample contained heavy floculant white suspended matter, was reversed by the CFL where no such finding is there to show existence of any such suspended matter. On the contrary, the sample was opined to be not conforming to the standards by the CFL only on the ground of rancidity being positive. As such, the matter has to be determined only on the basis of report of CFL.
17. In this regard, 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 CC No. 147/03 Page 8 of 13 296], 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.
18. 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 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.
19. 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.
20. In the case at hand, the differences between the two reports would show substantive variations in the two reports. There is stark difference in the presence of suspended matter when analysed by the two analysts. The CC No. 147/03 Page 9 of 13 entire incriminating matter on the basis of which prosecution was launched, stood negated by the CFL.
21. As far as the ground on which CFL failed the sample is concerned, it is important to understand that groundnut oil as a food article is prone to natural variations. If quality or purity of such an article falls below the prescribed standards solely due to natural causes and beyond the control of human agency, then such article would not be termed as adulterated. If the two reports are so considered showing test for rancidity, it can be said that either the food article had not been properly homogenised and made truly representative, or otherwise the sample had undergone a natural change beyond the control of the accused. The CFL had examined the sample from 12.05.2003 to 17.05.2003. Thus, it was so analysed after about 02 years and 04 months when it was lifted from the possession of the accused no. 1. The nature of oil as a food product is such that some changes are bound to happen if sample is kept for a long period. The effect of presence of moisture, temperature, external environment, internal heat etc. cannot be ignored on such article, particularly when no preservative as such was used in the sample. Such changes would be natural changes beyond human control. Rancidity increases in sample of oil with passage of time. Reliance can be placed on the judgements titled as Nebh Raj v. State [Criminal Appeal No. 113/1975, Supreme Court of India, dated 24.10.1980] and National Diary Development Board v. State of Haryana [1997(I) PFA Cases 95]. In the present case, such development of rancidity cannot be ruled out after 28 months of lifting of the sample.
CC No. 147/03 Page 10 of 1322. In the present case, the sample was lifted on 03.01.2001. The PA analysed the sample and gave report on 08.02.2001. However, the present complaint was filed on 31.03.2003, that is, almost 28 months after the sample was lifted. Well, there is nothing on record to show as to why the complaint was not filed within a reasonable time and for what purpose the complaint was kept pending by the FI. There is nothing to show that the FI was conducting some investigation in the matter during such a long period which made it impossible for him or her to file the complaint before that period. No explanation whatsoever has been given by the PW-1 or PW-2 as to why the complaint was filed after such a long period. As per section 13(2) of the PFA Act, the intimation letter along with copy of PA report has to be sent to the accused only after initiation of prosecution against the accused. Therefore, the intimation letter along with PA report was sent to the accused only after 31.03.2003. Before this day, he was not informed that his sample as already lifted 28 months ago from a vendor had been failed by the PA vide her report dated 08.02.2001 and that he had an opportunity to get the sample analysed by the CFL.
23. In my considered view, such an unexplained huge delay would have to be considered in favour of the accused. Though it is correct that the right of accused under section 13(2) of the PFA Act would be considered frustrated when the Director, CFL is unable to analyse the sample on account of its being rendered unfit for analyses, yet it is equally true that that if there is chance of the sample having been rendered unfit for accurate analysis on account of delay, then such delay would also be fatal to the complainant. The complainant cannot be given liberty to keep the CC No. 147/03 Page 11 of 13 sample with itself for longest possible period so as to ensure that some changes take place the sample which would result in deficiencies if analysed by CFL after such period.
24. Thus, there is possibility that such changes as observed by the CFL in the matter in hand were natural changes. The burden would be on prosecution to rule out possibility of such natural changes before the accused can be convicted, particularly in view of such substantive variations in the two reports and huge delay in filing the complaint. The only conclusion would be that either the sample was not truly representative or otherwise it underwent a natural change during the intervening period which was beyond human control. In any case, the accused would get a benefit of doubt.
25. 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 oil 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 so as to bring the case within section 2(ia)(a) of PFA Act.
26. As far as section 2(ia)(m) is concerned, the accused no. 6 is entitled to be given benefit of doubt considering the time gap, natural variations and variations in two reports. 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 CC No. 147/03 Page 12 of 13 the accused no. 6 for commission of offences punishable under section 7/16 of the PFA Act.
27. Having said so, the accused no. 6 is acquitted of the charges. However, his bail bond shall remain in force for the next six months in terms of section 437-A CrPC.
28. File be consigned to record room.
Announced in the open court this 29th day of August 2016 ASHU GARG ACMM-II (New Delhi), PHC CC No. 147/03 Page 13 of 13