Delhi District Court
17. In A Judgment Titled As Kanshi Nath vs . State, 2005(2) Fac on 6 September, 2010
IN THE COURT OF SHRI SANJEEV KUMAR MALHOTRA,
ADDITIONAL CHIEF METROPOLITAN MAGISTRATE-II,
NEWDELHI
C.C. N0. 89/96
Local Health Authority
Department of PFA
Govt of NCT of Delhi
Versus
Ashok Kumar Kukreja
S/o Sh. Milk Raj
M/s Big Boss Ice Cream,
C.S , 90-91, Mangol Puri, Khurd, Delhi
R/o 685 A, Rohini, Sector- II, New Delhi.
JUDGMENT
Date of Institution : 25.10.96 Date of reserving judgment :06.09.10 Date of Pronouncement : 06.09.10 U/S: 2 (ia)(a) (m) & (j) punishable under Section 16(1A) read with section 7 of the PFA Act The final order : Acquitted Brief statement of the reasons for such decision-
1. The present complaint is filed by the Delhi Administration C.C. N0. 89/96 1 through LHA K.G. Rao against the above said accused, for prosecution of the offence under section 7/16 of the Prevention of Food Adulteration Act, 1954 (hereinafter referred to as the PFA Act)
2. The case of the complainant is that on 23.05.96 at about 7.15 P.M. Food Inspector Ranjeet Singh purchased a sample of Ice-Candy, a food article, for analysis from Sh. Ashok Kumar Kukreja S/o Sh. Milk Raj at M/s Big Boss Ice Cream, C.S , 90-91, Mangol Puri, Khurd, Delhi, where the said food article was found stored for sale and Sh. Ashok Kumar was found conducting the business of the said factory. The sample consisted of approximately 900 gms. of Ice-Candy taken as twenty seven Ice Candy with sticks from the freezer of the same lot. The Food Inspector directly transferred the Ice Candy into three dry and clean glass bottles equally by cutting them with the help of a clean and dry knife and allowed to melt at room temperature. 24 drops of formalin were added in each of the three bottles. Each bottle containing the sample was separately packed, fastened, marked and sealed according to PFA Act and Rules. Vendor's signatures were obtained on the LHA slip and the wrapper of the sample bottles. Notice was given to Sh. Ashok Kumar Kukreja and the price of the sample was also given to him. Panchnama too was prepared at the spot. All the documents prepared by Sh. Ranjeet Singh, Food Inspector were signed by Sh. Ashok Kumar and the other witness Sh. Arun Kumar , Food Inspector. Before starting sample C.C. N0. 89/96 2 proceedings efforts were made to join public witnesses but none came forward. The sample was taken under the supervision of LHA. One counter part of the sample was sent to the Public Analyst in intact condition and two counter parts were deposited with the LHA in intact condition. The Public Analyst analysed the sample on 24.06.96 and opined the sample does not conform to the standards laid down under item A.07.04.01 of Appendix 'B' of PFA Rules, 1955 because sugar content is less than the minimum prescribed limit of 10%.
3. After the conclusion of the investigation, the entire case file including the statutory documents and PA's report and the report of the FI was sent to the Director (PFA) Delhi Administration, Government of NCT of Delhi who accorded consent under Section 20 of PFA Act for institution of the case and authorised Sh. K.G. Rao, LHA to file the present complaint.
4. The accused is allegedly to have violated the provisions of Section 2 (ia)(a)(m) punishable U/s 16(1) read with Section 7 of the PFA Act and Rules.
5. Summons of the case were served upon the accused and pursuant thereto he had appeared before the court. On 01.04.97, accused Ashok Kumar Kukreja moved an application to get the second counterpart of the sample analysed from the Director, CFL while C.C. N0. 89/96 3 exercising his right under Section 13(2) of the PFA Act and second counterparts of the sample was examined by the Director, CFL, Calcutta vide Certificate No. G.14-4/97-210 dated 29.4.97 and opined the sample of Ice Candy is adulterated.
6. Charge for contravention of provision of Section 2 (ia)(a) (m) &
(j) punishable under Section 16(1A) read with section 7 of the PFA Act was framed against the accused separately on 02.01.09 to which he pleaded not guilty.
7. In support of its case, complainant examined PW-1 Sh. K.G. Rao, Retd. LHA ; PW-2 F.I. Ranjeet Singh & PW-3 F.I. Arun Kumar Gupta.
8. Statement of accused was recorded separately on 28.01.10 under Section 313 Cr.P.C wherein he has controverted and rebutted the entire evidence against him while submitting that he is innocent and preferred not to lead evidence in his defence.
9. As per section 2(ia)(a) of PFA Act, an article of food shall be deemed to be adulterated if the article sold by a vendor is not of the nature, substance or quality demanded by the purchaser and is to his prejudice, or is not of the nature substance or quality which it purports or is represented to be.
C.C. N0. 89/96 410. As per Section 2 (ia)(j) of PFA Act, if any colouring matter other than that prescribed in respect thereof is present in the article, or if the amounts of the prescribed colouring matter which is present in the article are not within the prescribed limits of variability.
11. As per section 2 (ia)(m) of PFA Act, an article of food is said to be adulterated if the quality or purity of the article falls below the prescribed standard or its constituents are present in quantities not within the prescribed limits of variability but which does not render it injurious to health.
12. It is true that the mensrea in the ordinary or usual sense of this term is not required for proving an offence defined by Section 7 of the Prevention of Food Adulteration Act, 1954. It is enough if an article of adulterated food is either manufactured for sale or stored or sold or distributed in contravention of any provision of the Act or of any rule made thereunder. Nevertheless, the prosecution has to prove beyond reasonable doubt that what was stored or sold was food.
ARGUMENTS AND FINDINGS.
13.I have heard both the sides at length and have given my conscious thought and prolonged consideration to the material on record, C.C. N0. 89/96 5 relevant provisions of law and the precedents on the point. The SPP has argued that as the case is well proved and the accused is liable to be convicted. Ld. Defence counsel, on the other hand, has vehemently argued that the sample was taken in violation of Rule 22A of PFA Rules as the Ice Candy was not having identical label declaration. Ld. Defence counsel further argued that a representative sample was not taken as to why divergent reports have been given by two Analys in respect of counterpart of same sample.
Violation of Rule 22A of PFA Rules, 1955
14. Ld. Defence counsel vehemently argued that the Food Inspector lifted the sample of Ice Candy by taking nine Ice Candies as such in one counterpart in violation of Rule 22A of PFA Rules as there was no identical label declaration on the Ice Candies. On the other hand, Ld. SPP for the complainant argued that the Food Inspector adopted the correct procedure of sampling by putting the ice candy directly in the sample bottles, and drawn my attention in respect of authority reported as 2007 (1) JCC 867 wherein it was held by Hon'ble Mr. Justice Shiv Narayan Dhingra as under:-
'' ..... Sample of ice-cream /kulfi- The Food Inspector after taking several sticks/cups/pieces of bricks of ice cream together and putting them in a Patila ( a metallic utensil) and C.C. N0. 89/96 6 allowing them to melt in the Patiala-Then stirred the entire mass with the spoon and filled up the melted ice cream into three bottles and added preservative in each bottle at room temperature-Whether it would be a representative sample of ice cream which is sold to the customer-Held: No- Once the ice cream gets melted, the lighter particles in that mass shall float over and the heavier particles shall have tendency to settle down-Fat being lighter will float at the top surface of the molten ice cream due to law of gravity and the heavier particles shall have tendency to settle down and go down- When such a mass of the melted ice cream is stirred, the part of fat will stick to the surface of the container due to the tendency of fat sticking to the surface and the some of the fat would be lost to the 'patila' when sample is taken out- This molten mass of inc cream, would, therefore, not be a representative sample of ice cream which is sold to the customers- Slight variations in the result of the samples and the minimum standard prescribed under the law, it can be safely said that the sample taken by the FI was not properly taken so as to make it a representative sample in case of ice cream /kulfi- The proper way of taking sample is to put directly the part of brick of ice cream or cup or stick of ice cream/kulfi into the sample bottle and allow the same to come to room temperature and then add preservative so that there is no loss of fat etc- Once loss of fat takes place due to faulty procedure of taking samples, the shopkeeper cannot be convicted. '' C.C. N0. 89/96 7
15. Reverting back to the facts of the present case as mentioned in the complaint, the Food Inspector directly transferred the ice candy into three dry and clean glass bottles equally by cutting with the help of dry and clean knife. Rule 22A of PFA Rules provides that in case food is sold in sealed container having identical label declaration, one or such container shall be treated to be part of the sample. The contention of the Ld. Defence counsel was that as there was no label on the Ice Candy , sample was to be taken after mixing the contents of all the Ice Candies. Admittedly, the Ice Candies were stored in deep freezer and same was not lying in any container, therefore, no question for taking the container as such arises. In the present case, Food Inspector put nine Ice Candies as such in one counterpart to prevent loss of any contents of the Ice Candy in any other container. As Ice Candy is already homogenized product , there was no requirement to mix the contents that appears the second reason by the Food Inspector to put the Ice Candies equally in each counterpart without mixing the contents of all the twenty seven sticks of Ice Candies. Therefore, I am of the considered opinion that there is no violation of Rule 22A of PFA Rules.
Whether sample is representative:
16. Ld. SPP for the complainant has submitted that the sample is representative but the Ld. Counsel for the accused has submitted that the sample was not representative sample. Ld. Defence Counsel further submitted that one Analyst found two permitted colours in C.C. N0. 89/96 8 the sample commodity while another Analyst found one permitted and one non-permitted colour in the counterpart of same sample, which itself shows that either the sample was not representative or Ice Candy of different lot was taken as a sample. On the other hand, Ld. SPP argued that the accused challenged the report of Public Analyst after considering the same as erroneous and moved an application for getting analysed the second counterpart by the Director, CFL. Therefore, he cannot again rely upon the report of the Public Analyst and as such report of Public Analyst cannot be looked into for deciding whether the sample was representative or not.
17. In a judgment titled as Kanshi Nath Vs. State, 2005(2) FAC 219, Delhi High Court , it was held by Hon'ble Mr. Justice Badar Durrez Ahmed, as under;-
''............To this extent, the argument raised by Mr. Sharma that once the certificate of the Director, CFL is obtained, then that is final and conclusive and the Public Analyst's report cannot be looked into at all for any purpose whatsoever, is not quite tenable. If the variation in the two reports is substantial enough, then the Public Analyst's report can certainly be looked into to establish this variation so as to support the contention of the petitioner that the sample was not representative. As indicated above, the Director, CFL who was examined as CW-1 in cross- examination, has clearly stated that if the content of common salt C.C. N0. 89/96 9 as quantified by the two experts would have a variation of more than- Y.3% then the samples would not be representative. This is an opinion of an expert and one has to go by it. In the facts of the present case, we find that the variation, as indicated above, is more than-Y.3%. Therefore, on the facts of the present case, it can be said that the variation is beyond the acceptable range and would clearly imply that the samples were not representative. In view of this finding and in the background of the law which is well settled, no conviction can be sustained. ''
18. In view of above judgment of the Hon'ble Delhi High Court, I find no force in the contention of the Ld. SPP that the report of the Public Analyst and the Director, CFL cannot be looked into to ascertain whether the sample was representative or not. In the present case, as per report of the Public Analyst dated 24.06.96 wherein the opinion given by the Public Analyst, Delhi was that the sample does not conform to the standard and the result of the Public Analyst was as follows:-
Physical description - orange coloured, sample of Ice Candy Sugar - 8.5% Test for synthetic colour - sunset yellow and carmoisine, 59.43 ppm Test for artificial sweetners - Negative' C.C. N0. 89/96 10
19. The second counterpart of the same sample was analysed by the Director, Central Food Laboratory, Calcutta on 29.04.97 , the result of analysis of second counterpart of the sample commodity was as under :-
Physical description - yellow coloured liquid.
Sugar - 9.23% Test for synthetic colour - 7 mg per k.g. Sunset yellow alongwith a red non-
permitted synthetic colour Test for artificial sweetners - Negative
20.The Public Analyst found two colours in the sample i.e sunset yellow and carmoisine upto 59.43 ppm , and both the colours are permitted in the sample of Ice Candy and opined the sample non- conforming to standard only due to the reason that sugar contents were found less then minimum prescribed limit of 10% while in the second counterpart of the same sample, Director, CFL found 7 mg per k.g sunset yellow alongwith a red non-permitted synthetic colour.
21.Rule 29 & 30 of PFA Rules provides that permitted synthetic food colours upto 100 ppm are allowed in Ice Cream and frozen desert and Rule 28 provides the name of the synthetic food colours which are permitted and carmoisine is provided in the table as C.C. N0. 89/96 11 given in Rule 28, as common name of red colour. Therefore, the Public Analyst found both the colours i.e sunset yellow and red ( carmoisine ) i.e permitted colours while the Director, CFL found sunset yellow ( permitted colour ) but the red colour found by the Director, CFL was non-permitted as per his report, however, the Director, CFL has not given the chemical name of red colour. Further, variation in sugar contents between two reports is also more than 0.3%. The complainant has failed to explain how one Analyst found two permitted colours i.e sunset yellow and red ( carmoisine) within prescribed limit but the another Analyst found one red non-permitted synthetic colour in the counterpart of same sample. Thereby relying upon Kanshi Nath versus State (supra), I am of the considered view that the sample was not representative .
22. In view of the above discussion and reasons, I am of the considered opinion that the complainant has failed to prove that a representative sample of Ice Candy was taken . In result, complaint stands dismissed and accused is acquitted. His previous bail bond furnished at the time of appearance stands cancelled. Earlier Surety discharged. Bail bond as per Section 437A Cr.P.C is furnished and accepted which shall remain in force for a period of six months. File be consigned to the record room.
Announced in the open court. ( S.K. MALHOTRA )
Dated:06.09.2010 ACMM-II/NEW DELHI.
C.C. N0. 89/96 12
C.C. N0. 89/96 13