Delhi District Court
Food Inspector vs Anita Jatana W/O Sh. R. L. Jatana on 30 July, 2013
IN THE COURT OF SHRI I.S. MEHTA
DISTRICT & SESSIONS JUDGE : NEW DELHI DISTRICT
NEW DELHI.
Criminal Revision No. 154A/10
Food Inspector .......Appellant
Department of PFA,
Govt of NCT of Delhi
A20, Lawrence Road Industrial Area,
New Delhi.
Versus
1 Anita Jatana W/o Sh. R. L. Jatana,
Dietetics Department,
Batra Hospital & Medical Research Centre,
M B. Road, New Delhi110062.
R/o Sector C8547, Vasant Kunj
New Delhi.
2 M/s Ch. Ashi Ram Batra Public Charitable Trust,
Amira Kadal,
Sri Nagar ( J&K)
Owner of Dietetics Department
Batra Hospital & Medical Research Centre,
M. B. Road, New Delhi110062
3 A. L. Batra s/o late Ch. Ashi Ram Batra
M/s Ch. Ashi Ram Batra Public Charitable Trust,
Amira Kadal,
Criminal Revision No. 154A/10 1 Of page 12
Sri Nagar ( J&K)
R/o C2728, South Extn PartII
New Delhi110048
4 D. V. Batra s/o late Ch. Ashi Ram Batra
M/s Ch. Ashi Ram Batra Public Charitable Trust,
Amira Kadal,
Sri Nagar ( J&K)
R/o W11, Greater Kailash
New Delhi110048
5 Sh. A. P. Batra S/o late Ch. Ashi Ram Batra
M/s Ch. Ashi Ram Batra Public Charitable Trust,
Amira Kadal,
Sri Nagar ( J&K)
R/o A12, Green Park, N. Delhi110016
6 Sh. S. K. Chawla S/o late Sh. B. D. Chawla
M/s Ch. Ashi Ram Batra Public Charitable Trust,
Amira Kadal,
Sri Nagar ( J&K)
R/o 549, Mount Kailash Apartments,
Tower No. 3, East of Kailash,
New Delhi110065
7 K. K. Leekha S/o late Sh. Vashdev Leekha
M/s Ch. Ashi Ram Batra Public Charitable Trust,
Amira Kadal,
Sri Nagar ( J&K)
R/o B4/1 Safdarjung Enclave, N. Delhi.
Criminal Revision No. 154A/10 2 Of page 12
8 Rahoul Rai S/o late Sh. Nakumat Rai,
M/s Ch. Ashi Ram Batra Public Charitable Trust,
Amira Kadal,
Sri Nagar ( J&K)
R/o 18, Chinal Driver,
DLF, Chattarpur, Mehrauli, N. Delhi
9 R. P. Makhija S/o late Sh. R. D. M. Makhija
M/s Ch. Ashi Ram Batra Public Charitable Trust,
Amira Kadal,
Sri Nagar ( J&K)
R/o 222, Model Town,
Sonepat131001, Haryana
10 Sushil Kumar S/o late Sh. Jeewan Das Munjal,
M/s Ch. Ashi Ram Batra Public Charitable Trust,
Amira Kadal,
Sri Nagar ( J&K)
R/o House No. 173, Sector14,
Gurgaon.
11 Dr. D. H. Shete
M/s Ch. Ashi Ram Batra Public Charitable Trust,
Amira Kadal,
Sri Nagar ( J&K)
R/o B51, NDSE, PartII,
New Delhi
.........Respondents
Criminal Revision No. 154A/10 3 Of page 12
Date of Institution : 30.10.2010
Date of Argument : 23.07.2013
Date of Decision : 30.07.2013
Appearance: Mr. Rakesh Kumar Chief
Prosecutor for appellant.
Sh. R. N. Mittal Ld. Sr. Advocate
for respondent.
J U D G M E N T
This is an appeal filed by the appellant for setting aside the order dated 23.3.2010 (in short, referred to as the impugned order) passed by Sh. S. K. Malhotra Ld. ACMM II New Delhi discharging all the accused persons. 2 Brief facts of the present case are that a Complaint U/s 16 of the PFA Act 1954 was filed by Complainant/Food Inspector Sh. B. S. Saroha ( hereinafter referred to as complainant) against Smt. Anita Jatana and 10 other accused persons. It is stated in the complaint that on 23.12.2003 at about 1.00 PM Food Inspector, B. P. Saroha purchased a sample of Curd 9 ready for use), a food article for analysis from Smt. Anita Jatana ( A1) Chief Dietician, Dietitics Department, Batra Hospital and Medical Research Centre, M. B. Road, New Delhi where the food article was stored for human consumption and at the time of sampling Smt. Criminal Revision No. 154A/10 4 Of page 12 Anita Jatana was found supervising the hospital kitchen. The sample consisted of App. 600 gms of Curd taken after homogenization with the help of clean and dry stainless steel spoon taken from an open glass container bearing no label declaration. The sample was taken under the supervision/direction of Sh. Bajrang Lal, SDM/LHA. Necessary documents including Panchnama was prepared at the spot. All the documents prepared by the Food Inspector were signed by Smt. Anita Jatana and witness Sh. S. Messy Food Inspector and no other public witness join the proceeding as such Sh. Messy was joined as witness. 3 It is further stated that the sample does not confirm to standard because milk fat is less than the prescribed minimum limit of 6.0%. Smt. Anita Jatana was the vendor at Dietitics Department, Batra Hospital and Medical Research Centre, M. B. Road, New Delhi at the time of sampling and as such she is incharge of and responsible for day to day conduct of the business of the said Dietetics Department, Batra Hospital & Medical Research Centre. M/s Ch. Ashi Ram Batra Public Charitable Trust, Amira Kadal, Sri Nagar ( J & K ) is the owner of M/s Batra Hospital and Medical Research Centre. The bye laws dated 17.8.1989 of the Society revealed that the governing body is responsible for the affairs of the Criminal Revision No. 154A/10 5 Of page 12 Society and respondent No. 2 to 9 being the governing body members are also responsible for the offence. Hence they violated the provisions of Section 2 (ia) (a) & (m) of PFA Act.
4 It is further stated that after conclusion of investigation entire case file including statutory documents, PA's report and FI report were sent to Director PFA, Government of Delhi who accorded his consent U/s 20 of PFA Act for instituting complaint in the designated Court vide his order dated 1.9.2006. 5 On filing of complaint the ld. Trial court summoned all the accused persons. Precharge evidence was recorded and arguments were heard on the point of charge. Thereafter vide order dated 23.3.2010 ld. Trial court has discharged all the accused persons.
6 Aggrieved from the impugned order the appellant has preferred the present appeal. It is stated that order of discharge is bad in law. Complaint was filed in about 2 years and 9 months and the complaint can be filed within three years. Hence there is no delay in filing the complaint. The sample was found fit for Criminal Revision No. 154A/10 6 Of page 12 test and not deteriorated as per CFL Certificate. The ld. ACMM did not discuss the case laws at all. The PA report of a lesser expert cannot be compared with the CFL Certificate of a higher expert which was chosen by accused himself. That as per general law the certificate of Director CFL is final and conclusive of the facts stated therein and the report of PA cannot be looked into as it stood superseded by the Certificate of Director. The appellant has prayed for setting aside the impugned order by holding the accused persons guilty as per law. 7 I have heard Sh. Rakesh Ld. Chief Prosecutor for appellant and Sh. R. N. Mittal Ld. Sr. Advocate along with Puneet Mittal Advocate for respondents. 8 The Ld. Chief Prosecutor has submitted that the complaint filed against the respondents is within three years i.e. 2 years 9 months and there is no delay on the part of the appellant. The Ld. Chief Prosecutor has further submitted that the sample sent for analysis were fit for its test and the report of public analyst is Ex. PW1/F and certificate of the CFL is dated 30.10.2006. Ld. Chief Prosecutor has further submitted that the sample sent to the Public Analyst and the CFL, found nonconfirming to the standard prescribed under the Act. The Ld. Chief Criminal Revision No. 154A/10 7 Of page 12 Prosecutor has further submitted that the CFL certificate would prevail over the public analyst report and is final and conclusive as the respondents have chosen their right of the option. Ld. Chief Prosecutor has further submitted that the sample sent to the CFL failed therefore, the respondents violated the provisions of Section 2(ia)(a) & (m) of the PFA Act and Rules and relied upon the judgment AIR 1982 Supreme Court 57.
9. On the other hand, Sh. R.N.Mittal Sr. Advocate alongwith Sh. Puneet Mittal, Advocate vehemently opposes the contention of the Ld. Chief Prosecutor and submits that there is no infirmity in the impugned order and prays that the appeal of the appellant be dismissed.
10. As per the complaint, on 23.12.2003 at 1 p.m. The sample of 'curd' approx. 600 grams (ready to use) was taken from an open glass container in the presence of Sh. Bajrang Lal SDM/LHA. The Food Inspector divided the sample into three equal parts without indication. Each bottle containing the sample was separately packed, fastened and sealed. One sample LHA code no. 72/LHA/7092 was sent to Public Analyst, Delhi and two counter parts were deposited with the Criminal Revision No. 154A/10 8 Of page 12 LHA. The Public Analyst analysed the sample and found the same non conforming to the standards prescribed under the PFA Act and Rules and thereafter one of the sample was sent to CFL, Pune.
11. The contents of the report of Public Analyst dated 9.1.2004 is reproduce as under: Analysis Report i Sample Description: Sample received in sealed ordinary glass sample bottle. ii Physical appearance: While Colour sample of Curd without any insect & fungus. Iii Label: Original lebel not received with sample. S.No Quality Characteristic Name of Method of Test used Result Prescribed Standards as per:
(a) Item A...of appendix B
(b) As per label declaration for proprietary foods © As pr provisions of the Act and Rules, for both above 1 Milk Fat RoseGottlieb Method 2.92% Not less than 6.0% 2 Milk Solids not fat By difference from total solid 9.49% Not less than 9.0% 3 B.R.at 40 Deg.C 28.011 AOAC 42.00% 40.0 to 43.0 4 Test for Starch Iodine Test Negative Negative 5 Test for Sugar 4.2.1 ICMR Negative Negative 6 Baudouin Test 28.129 AOAC Negative Negative Opinion : The sample does not conform to standard because milk fat is less than the prescribed minimum limit of 6.0%. When judged on the basis of buffalo milk curd. On the other hand the report of CFL is reproduce as under : Criminal Revision No. 154A/10 9 Of page 12 Analysis Report Sr.No Quality Characteristic Name of Method of test used Results Prescribed Standards as per
(a) Item Aof Appendix 'B'
(b) As per label declaration for proprietary foods ( c) As per provisions of the Act & Rules, for both above 1 Test for Formalin DGHS Manual Method Positive Shall be positive 2 Total Solid do 17.07% 3 Milk fat do 5.32% Not less than 6.0 % 4 Milk solids Not fat do 11.75% Not less than 9.0% 5 B.R.Extracted fat at 40° C DGHS 43.00% 6 Test for Sugar do negative Starch do negative All tests shall be Negative.
Urea do negative
Skimmed Milk Powder do Positive
Opinion I am of the opinion that the sample bearing No. 72/LHA/7092 does not conform to the standards of Curd prepared from buffalo Milk as per PFA Rules, 1955.
12. The sample sent to the Public Analyst and CFL, Pune was without indication consequently, the 'curd' was deemed to be prepared from the buffalo milk. As per Public Analyst report dated 09.01.2004 Ex PW1/F the Milk Fat was 2.92 per cent as against 6 per cent and the contents of the non fatty solids were found to be 9.49 per cent as against 9 per cent, the remaining parameters were found to be as per the requirements.
13. The CFL certificate dated 30.10.2006 indicate the presence of the Criminal Revision No. 154A/10 10 Of page 12 milk fat to be 5.32 per cent against not less than 6 per cent and 11.75 per cent fatty solid as against not less than 9 per cent in the sample curd.
14. The Public Analyst report Ex. PW1/F shows the fatty solid were 2.92 per cent against 6 per cent whereas certificate of CFL Pune shows that 5.32 per cent just near about double the conclusion found by the Public Analyst ( in the same way the non fatty solid found in the Public Analyst report to be 9.49 per cent and in CFL certificate found it 11.75 per cent which is about 25 per cent more than the Public Analyst report
15. Both the reports on comparison found to be not consistent to each other. The contention of the Ld. Chief Prosecutor that the CFL certificate prevails upon the Public Analyst report, the same is correct, only, to the extent of, facts, stated there in the certificate and its examination. The presumption attaching to the certificate again is only in regard to what is stated in it as to the contents of the sample actually examined by the Director and nothing more. The accused has still right to agitate that the sample sent to the Director CFL was not the representative of the sample taken on 23.12.2003. The reliance is placed on Municipal Corporation of Delhi Vs. Bishan Sarup Criminal 'Appeal judgment "
Criminal Revision No. 154A/10 11 Of page 12 no. 48 D of 1966 Delhi High Court.
16. In the present case both the reports brings to the conclusion that the sample was adulterated and there is variation of more than 25% . Therefore, it cannot be said that identical representative samples were sent to both the Public Analyst as well as the CFL, Pune and further reliance is placed on the judgments ' State Vs. Mahender Kumar and others 2008(1) FAC 177 Delhi High Court' and 'Kashi Nath vs. State 2005(2) FAC 219 Delhi High Court'.
17. As discussed above, the appellant failed to prove that identical representative samples were sent to Public Analyst as well as to the CFL, Pune, as such, I find no merit in the appeal and the same is dismissed. Trial Court record be sent back along with the copy of this order. Appeal file be consigned to record room.
ANNOUNCED IN THE OPEN COURT ON THIS DAY OF 30th July, 2013.
(I.S. MEHTA)
District & Sessions Judge
New Delhi
Criminal Revision No. 154A/10 12 Of page 12