Delhi District Court
R/O 07 vs State Of Nct Of Delhi on 16 March, 2016
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IN THE COURT OF SH. RAKESH PANDIT,
ASJ-01, NEW DELHI DISTRICT, PATIALA HOUSE COURTS, NEW DELHI
Case ID No.02403R136062015
CA No. 60/15
Rakesh Kumar
S/o Sh. Ramesh Chand
M/s Chauhan Dairy
21, Sawan Park Extension,
Ashok Vihar, PHase-III,
Delhi-110092.
R/o 07, Budh Vihar, Phase-II,
Delhi-110086. ....Appellant
Vs.
State of NCT of Delhi .... Respondent
Date of receiving of Appeal : 23.07.2015
Date of arguments : 19.02.2016
Date of judgment : 16.03.2016
JUDGMENT
1 By this judgment I will dispose of appeal u/sec.374 (3) Cr.PC. filed on behalf of convict Rakesh Kumar against the judgment dated 06.07.2015 and order on sentence dated 09.07.2015 passed by Sh. Gaurav Rao, Ld. ACMM-II, Patiala House Court, New Delhi.
CA No. 60/15 Rakesh Kumar Vs. State page 1 of 9
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2 The brief facts of the case as per record and from trial court
record are that accused is running an establishment namely M/s Chauhan Dairy at 20 Sawan Park Extension, Ashok Vihar, Phase-III, Delhi-110052. On 25.06.2009 at about 11.00 a.m. Food Inspector Gian Chand visited the said place and purchased 750 grams of Paneer from accused. FI was accompanied with SDM/LHA Sh. Naveen Kumar Saxena. The said Paneer was purchased for the purposes of analysis under PFA Act. The same sample was divided into three parts, packed as per Rules of PFA. Panchanama was prepared. One sample was sent for analysis to Public Analyst. As per the report of Analyst, sample did not confirm to the standard because milk fat of dried matter (44.73%) is less than prescribed minimum limit of 50%.
3 As the sample was failed, prosecution was launched by Food Inspector by filing complaint dated 14.09.2009 with the court. Accused was summoned. He exercised his right u/sec.13(2) PFA Act and get the sample analyzed by CFL. CFL gave report dated 04.11.2009 according to which the sample does not confirm to the standards of "Paneer or Chhana"
as per PFA Rules, 1955 as per tests perform (dried matter found only 46.83%).
4 Charge was framed against accused u/sec.2(ia) (a) (m) read with sec.7 of PFA Act, 1954 punishable u/sec.16 of PFA Act.
5 After trial, vide judgment dated 06.07.2015, accused was convicted for offence u/sec.16 of PFA Act and vide order dated 09.07.2015, accused was directed to undergo simple imprisonment for a period of 1 year and fine of Rs.10,000/- and in default of payment of fine SI CA No. 60/15 Rakesh Kumar Vs. State page 2 of 9 3 of 30 days.
6 In this appeal, the accused has assailed the judgment on the following grounds:-
(a) There was non-compliance of Sec.10 (7) of PFA Act.
(b) There was non-compliance of Rule 14 of PFA Rules.
(c) the sample was examined after the expiration of its shelf life.
7 No reply was filed by respondent/state and the matter was argued orally.
8 It is argued by counsel for appellant that since the prosecution was not launched promptly and due to that reason the accused could not exercise its right u/sec.13 PFA Act, promptly. So, in these circumstances, as the shelf life of the "Paneer/Chhana" was already over, so convict cannot be sent to jail on the basis of a food article which is not fit for human consumption on account of expiry of its shelf life or for analysis and examined after the such expiry.
9 Opposed by Ld. SPP for State/PFA on the ground that this cannot be a defence raised at this stage when no evidence was led to the effect in the trial court. It is stated that no such defence is taken in the trial court.
10 I have gone through the trial court record, record of this appeal, submissions forwarded by counsel for appellant and Ld. SPP for State. My observation as as below:-
CA No. 60/15 Rakesh Kumar Vs. State page 3 of 9
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11 The entire grounds of appeal revolves around to the effect
that the CFL had examined the said sample after the expiration of its shelf life and thus accused cannot be convicted on the basis of analysis on a food article of which, the shelf life had expired and the same is not fit for analysis.
12 The analysis of the arguments on this ground was done by the trial court from para 84 onwards. In this part of the judgment Ld. Trial Court has also stated that reliance is placed by the accused on judgment of Chanan Lal Vs. State, 1972 FAC 292. On the other hand, the trial court had relied on various judgments of Hon. Supreme Court, Hon High Court of Delhi and other Hon. High Courts of India. Ld. Trial court had come to the conclusion that in case if the CFL founds that the sample is "Fit for Analysis", the result given by it is conclusive and does not require any interference. It also held that there is nothing on record which shows that the sample was not fit for analysis. It is further stated that no sample can be discarded on the basis of expiry of shelf life if it is opined by CFL that it is fit for analysis.
13 In this case, the sample was lifted on 25.06.2009. Deposited by FI with Public Analyst on 25.06.2009. The same was analyzed by Public Analyst from 26.06.2009 to 03.07.2009. The prosecution was launched on 14.09.2009. The sample was received by CFL on 23.10.2009. The analysis was done from 26.10.2009 to 04.11.2009 and the report was made by CFL on 04.11.2009.
14 It is stated that from the date of taking of sample i.e. 25.06.2009 and the date on which the CFL started examination i.e. CA No. 60/15 Rakesh Kumar Vs. State page 4 of 9 5 26.10.2009, there is a gap of about 4 months and the shelf life of Paneer is already over. It is stated that the shelf life of Paneer, after adding formalin and after keeping the sample in refrigeration, is about 30 days. Accused cannot be held guilty on the basis of examination done on a food article, whose shelf life is already over i.e. it is not fit for consumption by consumer.
15 For this to support his argument, appellant relied on Chanan Lal Vs. State, 1972 FAC 292 passed by Hon. High Court of Delhi.
16 In this judgment, Hon. High Court had examined two persons namely Sh. P. P. Bhatnagar, then Public Analyst and Sh. B. D. Narang, an Expert in the Field of Food Analysis before it. Para 7 and 8 of the judgment are as below:-
"Para 7 Sh. P. P. Bhatnagar is the Public Analyst of the Municipal Corporation of Delhi. He is a graduate in Science with Chemistry as one of the subjects and entered service in the year 1952 as a Chemist. He has been analyzing articles of food since them. He had been working as a Public Analyst for the New Delhi Municipal Committee and also for Delhi Cantonment Board since September, 1964. He states that if two drops of formalin are added to 25 grams of Paneer and the same is kept in sealed bottle, it will be fit for analysis at least for a period of 8 months. He further states that in case the contents leak out of the bottle, a part of formalin will go out with it and there was likelihood of the Paneer getting de-composed. The action of formalin is to arrest the growth of bacteria and preserve the status quo. The period for which the sample will remain fit for analysis will depend upon the fact whether it was prepared from fresh milk or from sour milk. Moreover, if, at the time of taking the sample, the decomposition has set in, the addition of formalin will not be able to preserve the Paneer for the average period of 8 months. The weather conditions will also affect. In case of Paneer prepared from sour milk, the period of fitness will go down by two of three months. This witness never carried out CA No. 60/15 Rakesh Kumar Vs. State page 5 of 9 6 any tests to find out the period during which Paneer will remain fit for analysis after formalin had been added to it.
Para 8 Dr. B. D. Narang is an M. Sc. (Hons.) in Chemistry from Punjab University any Ph. D. in Chemistry from University of Texas (USA). He has been in the field of food analysis for about 28 years and has been working as a Public Analyst since 1959. He is a member of the Central Committee for Food Standards, a statutory body of the Government of India. He claims to have carried out experiments to find out the period of fitness of Paneer. His experiments consisted of preparing the Paneer in the laboratory after buying the milk. He had prepared two sets of sample bottles of Paneer. To one set, he did not add formalin, but had put them in dry clean bottles, which were later on sealed. The other set of bottles in which Paneer had been put in, he had added requisite drops of formalin and sealed them. From each set, some of the bottles were kept at room temperature while the rest in a refrigerator. His observations were that the sample of Paneer to which formalin had been added remained fit for analysis for about one month when kept in the refrigerator. If the same was kept at room temperature, it remained fit from 11 to 15 days. Samples to which no formalin was added and was kept at room temperature, he found, that it started giving slight putrid smell the following day and became decomposed on the 5th day. A similar sample kept in the refrigerator did not give him satisfactory values and so he discarded this part of the experiment."
17 Similarly, in para 11 of the judgment, Ld. Judge of Hon. High Court of Delhi relied on the observation of Dr. B. D. Narang and discarded those of Sh. P. P. Bhatnagar stating that the statement of Sh. P. P. Bhatnagar is based on general observation while that of Dr. B. D. Narang is based on experiments conducted by him.
18 In para 13 of the judgment, Ld. Judge of Hon. High Court held that "it is safe for me to assume that the sample of Paneer to which requisite drops for formalin have been added and which is kept in CA No. 60/15 Rakesh Kumar Vs. State page 6 of 9 7 refrigerator would remain fit for analysis for about one month".
19 Now as per both the counsels who argued before me stated that if the formalin was not added, to the Paneer, it could not have lasted for 4 months. So, as per the rules of PFA this formalin is added as preservative. A preservative is a thing which increases the shelf life of a food article. The question before this court is raised by the appellant in his arguments that how much shelf life, this preservative i.e. "Formalin" can raise, if added to Paneer. This is a fact which has already been established by Hon. High Court of Delhi in the aforesaid judgment of Chanan Lal. In that case Hon. High Court had himself examined the experts from both sides i.e. from the Government and an independent food analyst. In para 11 the court had given specific reasons for accepting the version of independent food analyst i.e. Dr. B. D. Narang over than that of Sh. P. P. Bhatnagar then Public Analyst. In para 13 of the said judgment Ld. Trial Court had held as a fact "that the shelf life of the Paneer after adding formalin and kept in refrigerator, is one month".
Ld. Trial court failed to distinguish this opinion given by Hon. High Court of Delhi. The main thrust of the judgment was that "if the CFL found the sample fit for analysis, then the period does not matter". However in this judgment of Chanan Lal, the court had established that Paneer, after adding the formalin and kept in refrigerator, is only suitable for analysis upto one month. Ld. Trial Court failed to distinguish this fact/finding of Hon. High Court in Chanan Lal vis-a-vis the judgments relied by it.
20 Now this fact is made by Hon. High Court of Delhi and bound all the courts subordinate to it including this court. So, as far as, this court is concerned, as a fact, this court has to follow that the shelf life of the CA No. 60/15 Rakesh Kumar Vs. State page 7 of 9 8 Paneer can be enhanced by adding formalin and by keeping it in refrigerator, but for only a period of one month.
21 So, in these circumstances, it can be held that formalin can only have effect as preservative up to a period of one month if the samples are kept in refrigerator.
22 In the present case the samples were not kept in refrigerator. Moreover, the same were analyzed after a period of 4 months from the date of sampling.
23 As far as Ld. trial court is concerned, they have dealt in its analysis on page 48 regarding "best before date". However, the said analysis does not apply to the facts of the case as such dates are used in the act for the purposes of offences of "misbranding". As far as the reasoning given by Ld. Trial Court regarding the fact that CFL found the sample as "Fit for Analysis" and relied upon the result as conclusive does not fit in the present case. As far as the conclusiveness of CFL report is concerned, the same is conclusive regarding the contents/facts narrated therein and not for other purposes. The accused can show that the result is on the basis of examination done on a sample which was not fit for analysis on the day of examination. Moreover, as far as the philosophy of PFA Act and such legislations are concerned, the purpose is that analysis of food article be done to ascertain as to whether it is fit for human consumption or not. One criteria of food article for human consumption is, the shelf life of article. So, to determine whether the article is fit for consumption, it has to be taken before its expiry period or before its period of shelf life. Similarly, the examination of the said article be done keeping CA No. 60/15 Rakesh Kumar Vs. State page 8 of 9 9 in view that it is "Fit For Human Consumption" and thus "Fit for Analysis". As discussed above the formalin can enhanced the shelf life for one month and thereafter despite the presence of formalin, the shelf life expires and the food cannot be used for human consumption or for analysis. So, it can be said that the sample analyzed after four months cannot give accurate results as suggested in para 8 onwards of Chanan Lal judgment.
24 So, in these circumstances, on account of my aforesaid discussion, the benefit goes in favour of accused. So appeal is allowed. Accused Rakesh Kumar is acquitted.
25 TCR be sent back with copy of the order.
26 File of appeal be consigned to Record Room.
ANNOUNCED In the open Court (RAKESH PANDIT)
today i.e. 16.03.2016 ASJ-01/New Delhi District
Patiala House Courts/New Delhi
CA No. 60/15 Rakesh Kumar Vs. State page 9 of 9
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CA No. 60/15
Rakesh Kumar Vs. State
16.03.2016
Present: Appellant in person.
None for State.
Vide separate judgment announced and dictated in open court the appeal filed by appellant is allowed. Accused is Rakesh Kumar is acquitted.
TCR be sent back with copy of order.
Copy of order be given to prosecution.
File of appeal be consigned to Record Room.
(Rakesh Pandit)
ASJ-01/PHC/New Delhi District
16.03.2016
CA No. 60/15 Rakesh Kumar Vs. State page 10 of 9