Delhi District Court
Delhi Administration / Food Inspector vs Bhagwan Dass on 30 April, 2016
IN THE COURT OF SH. ASHU GARG,
Addl. Chief Metropolitan Magistrate - II (New Delhi),
Patiala House Courts, New Delhi
CC No. 2007/09
Unique Case ID No. 02403R0411452009
Date of Institution: 01.12.2009
Date of reserving judgement: 26.04.2016
Date of pronouncement: 30.04.2016
In re:
Delhi Administration / Food Inspector
Department of PFA,
Govt. of NCT of Delhi
A-20, Lawrence Road Industrial Area,
Delhi-110035 ... Complainant
versus
Bhagwan Dass
S/o. Sh. Madan Lal
R/o. 52/14D, Anand Parbat,
Karol Bagh, New Delhi-110005 ... Accused
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 has violated the provisions of the PFA Act and Rules. The accused Bhagwan Dass is stated to be the vendor-cum-proprietor of M/s. Krishna Dairy, from where the food article, that is, 'ghee' was lifted for sampling.
CC No. 2007/09 Page 1 of 112. As per the complaint, on 14.05.2009, the food officials consisting of Food Inspector (FI) Arun Kumar and Field Assistant (FA) Mitter Pal under the supervision of Local Health Authority (LHA)/SDM Sh. Girish Pandey reached along with their staff at the premises of M/s. Krishna Dairy at 5513/73, Regar Pura, Karol Bagh, New Delhi-110005, where the accused was found conducting the business of various food articles, which were lying stored for sale for human consumption. The FI disclosed his identity and expressed his intention to purchase a sample of ghee 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 25.05.2009, the PA found the sample to be adulterated on the ground that the BR exceeded the prescribed maximum limit, that RM value was less than the prescribed minimum limit and that the sample gave positive Baudoin test. Upon receipt of report, the SDM/LHA ordered investigation which was carried out by FI. 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 01.12.2009 alleging violation of section 2(ia)(a), (b), (c) and (m) of PFA Act and Rule 44(c) of PFA Rules, as punishable section 7/16(1)(a) of PFA Act.
CC No. 2007/09 Page 2 of 113. As the complaint was filed in writing by a public servant, recording of pre-summoning evidence was dispensed with and the accused was summoned vide order dated 01.12.2009. The accused appeared and filed an application under section 13(2) of PFA Act thereby exercising is 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 20.03.2010, opining the sample to be not conforming to the PFA Rues due to Free Fatty acids being more than prescribed maximum limits and the sample testing positive for rancidity.
4. Based on the report pf the CFL, notice of accusation under section 251 CrPC was framed against the accused on 28.04.2010 for commission of the offence punishable under section 7/16(1)(a) PFA Act, being violation of section 2(ia)(a) and (m) of PFA Act, to which he pleaded not guilty and claimed trial.
5. At the trial, prosecution examined three witnesses in support of its case. PW-1 FI Arun Kumar, PW-2 FA Mittar Pal and PW-3 Sh. Girish Pandey (the then SDM/LHA) were part of the team that had visited the spot for sample proceedings. All these witnesses deposed about the proceedings conducted by them on 14.05.2009 and narrated the steps undertaken by them during the sample proceedings, including disclosing their identity, expressing intention to purchase sample for analysis, lifting the sample of 600 gms ghee lying in open drum bearing no label declaration, mixing/homogenizing it, dividing it in three parts and putting CC No. 2007/09 Page 3 of 11 in clean and dry bottles, fastening, sealing, marking the sample bottles, and obtaining signatures of vendor and witnesses. They also proved the necessary documents including the vendor's receipt Ex. PW-1/A, Notice Ex. PW-1/B, Panchnama Ex. PW-1/C, Raid report Ex. PW-1/D, PA Receipt Ex. PW-1/F and LHA receipt Ex. PW-1/G. PA report Ex. PW- 1/H was received and investigation was started. Letter Ex. PW-1/I was written to the STO and its reply sought. After completion of investigation, sanction Ex. PW-1/J was taken from the Director PFA and the complaint Ex. PW-1/K was filed in the court. A copy of PA report with intimation letter Ex. PW-1/L 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 had been falsely implicated. They denied that the changes in the contents of ghee were natural changes.
6. Statement of the accused under section 313 CrPC was recorded on 21.06.2013 wherein he denied the allegations and pleaded innocence. Though he admitted the proceedings dated 14.05.2009, yet he questioned the reports on PA and CFL. He claimed that sample was not taken properly. He chose to lead evidence in defence.
7. The accused summoned an examined DW-1 Dr. O. P. Singhal, a food chemical expert who deposed that development of rancidity and increase in free fatty acids are natural phenomena in case of ghee stored at room temperature. He opined that the samples in this case did not appear to be representative in view of the two reports of PA and CFL. During CC No. 2007/09 Page 4 of 11 cross-examination, he deposed that chemical properties of products gets changed by atmospheric pressure, temperature, etc.
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 beyond reasonable doubt, on the ground that the accused has not been able to rebut the findings of the CFL report dated 20.03.2010 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 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 and have carefully perused the material available on record.
11. It is to be understood that the notice framed against the accused is for violation of section 2(ia)(a) and (m) of the PFA Act on the basis of CFL report, though in the initial complaint section 2(ia)(b) and (c) were CC No. 2007/09 Page 5 of 11 stated to have been also violated as per PA 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 both the reports of PA and CFL that the food article fell under Item A.11.02.15 of 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.
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 CC No. 2007/09 Page 6 of 11 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. It 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 all the three counts. The BR Reading shown to be at 49.5 by PA was found to be 42.8 by CFL (within minimum and maximum prescribed limits); the RM Value shown to be 6.94 by the PA was found to be 28.20 by CFL (more than minimum prescribed); and Baudoin test shown positive by the PA was found negative by the CFL.
CC No. 2007/09 Page 7 of 11On the contrary, the sample was opined to be not conforming to the standards by the CFL only on two counts, that is, free fatty acids being more than 3.0% and rancidity being positive. Apparently, the PA report shows free fatty acids to be 0.19% and within limits. 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 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 CC No. 2007/09 Page 8 of 11 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. The PA found Baudouin test positive which was found to be negative by the CFL. There is vast difference in the BR reading and RM value by the two analysts. The entire incriminating matter on the basis of which prosecution was launched, stood negated by CFL.
21. As far as the grounds on which CFL failed the sample are concerned, it is important to understand that ghee 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 free fatty acids and rancidity, it can be said that either the food article had not been properly homogenised and made truly representative, or otherwise the sample had CC No. 2007/09 Page 9 of 11 undergone a natural change beyond the control of the accused. The CFL had examined the sample from 17.37.2010 to 20.03.2010. Thus, it was so analysed after about 10 months when it was lifted from the possession of the accused. The nature of ghee 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, as also deposed by food chemical expert DW-1. DW-1 was a retired Principal Scientist and Head of the division of Dairy Chemistry, NDRI, Karnal. His PhD thesis was also on ghee and animal body fats. His opinion cannot be ignored particularly when there is nothing in his cross-examination to attribute any falsity to his testimony. He deposed that rancidity and free fatty acids increase in sample of ghee with passage of time. In the present case, such increase in free fatty acids and development of rancidity cannot be ruled out after 10 months of lifting of the sample. Thus, there is possibility that such changes 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. 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.
CC No. 2007/09 Page 10 of 1122. 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 ghee 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).
23. As far as section 2(ia)(m) is concerned, the accused 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 the accused for commission of offences punishable under section 7/16 of the PFA Act.
24. Having said so, the accused is acquitted of the charges. However, his bail bonds shall remain in force for the next six months in terms of section 437-A. CrPC.
25. File be consigned to record room.
Announced in the open court this 30th day of April 2016 ASHU GARG ACMM-II (New Delhi), PHC CC No. 2007/09 Page 11 of 11