Delhi District Court
Shri Kailash Chand vs The State on 21 February, 2012
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IN THE COURT OF MS. NEENA BANSAL KRISHNA :
ADDITIONAL SESSIONS JUDGE-01 : NEW DELHI
In re :
CA No. 62/11
Shri Kailash Chand
Son of Shri Raj Bahadur Gupta,
R/o A-421, New Ashok Nagar,
Delhi-110096 ..... Petitioner
versus
The State
[Govt. of NCT of Delhi, ..... Respondent
Date of institution of the appeal : 21.10.2011
Date of reserving judgment/order : 15.02.2012
Date of judgment / order : 21.02.2012
JUDGEMENT :
1. This appeal u/s 374 Code of Criminal Procedure has been preferred against the judgment dated 06.09.2011 and order on sentence dated 22.09.2011 of Ld. ACMM-II, New Delhi, in complaint case no. 77/05, vide which the appellant has been convicted for offences punishable u/s 16 (1A) r/w Section 7 of Prevention of Food Adulteration Act, 1954 (hereinafter referred to as the Act) and sentenced to undergo rigorous imprisonment for one year and to pay a fine of Rs.5,000/-, in default to undergo further simple imprisonment for 10 days.
2. The facts in brief are that on 15.02.2005 at about CA No. 62/11 Page No. 1 of 13 -2- 07.00 p.m. Food Inspector Sh. S. P. Singh along with the Food Assistant Jagdish under the supervision and directions of Sh. V. P. Singh, LHA, went to M/s Kailash General Store, New Delhi, whereby the appellant/accused was found to be conducting the business of food articles including sale of "mustard oil" loose. A sample of about 750 gms of "mustard oil", which was ready for sale was taken from an open tin and was divided into three equal parts and sealed as per the PFA Act and Rules. A sum of Rs.36/- was given to the accused towards the price of sample. One sample was sent for Public Analyst and the report of the Public Analyst was received, according to which the sample was found to be adulterated as it contained colour with unpermitted oil soluble synthetic colouring material. The formal complaint was filed in the Court and the accused was summoned, who appeared and exercised his right u/s 13 (2) PFA Act and one sample was sent to CFL for analysis. The CFL report dated 05.04.2005 also opined that "mustard oil"
sample did not conform to the standard as per PFA Rules.
3. The charges for the violation of provisions of S.2 (ia)(a)(j) & (m) of the Act of 1954 and Rule 23 r/w Rule 28 & 29 of PFA Rules, 1955; as well as violation of Gazette Notification dated 27.08.1998, which prohibited the sale of "mustard oil"
in loose form; punishable u.s 16 (1A), r/w S. 7 of the Act of 1954, was framed against the accused vide order dated 22.05.2009, to which he pleaded not guilty and claimed trial.
4. Three witnesses viz. Sh. S. P. Singh, Food Inspector, Sh. V. P. Singh, the then SDM/LHA and Sh. Jagdish Prasad, Field CA No. 62/11 Page No. 2 of 13 -3- Assistant were examined by the prosecution.
5. The statement of the accused was recorded u/s 313 Cr.PC, where he pleaded his innocence.
6. The appellant also examined Dr. S. M. Mahendru, the Chief Chemist as DW1.
7. The Ld. Trial Court after referring to the entire evidence concluded that the accused was guilty of the offences levelled against him except for the offence for violation of Notification in question. The accused was accordingly convicted and sentenced.
8. Aggrieved the present appeal has been filed.
9. The ld. Counsel on behalf of the appellant has argued that though in the Public Analyst report the synthetic colour was found to be present but no such synthetic colour was detected in the CFL report. It has been explained by DW1, the expert, that the "mustard oil" has its own natural colour. Also there is a huge variations in the specifications of saponification value and the temperature in the two reports of Public Analyst and CFL and, therefore, the samples taken by the Food Inspector cannot be held to be representative in nature.
10. The second line of argument was that specific adulterant found in CFL report had not been put specifically u/s 313 Cr.PC to the accused, which caused serious prejudice to him and he is entitled to acquittal on this ground itself.
11. Ld. Special PP on behalf of the Department has argued that the sample of "mustard oil" was found CA No. 62/11 Page No. 3 of 13 -4- adulterated not only by the Public Analyst but also in CFL, which takes precedence over the Public Analyst report. The appellant has been rightly convicted by the Ld. MM and the sentence does not call for any interference.
12. I have heard the arguments and have perused the record and the evidence led therein. My observations are as under :
13. The first line of argument on behalf of the appellant was that in view of huge variations in the Public Analyst report and CFL report, it cannot be held that the two samples were representative of each other and thus, the conviction is liable to be set aside. To appreciate this argument it is pertinent to re-produce the two reports :
REPORT BY THE PUBLIC ANALYST : -
Prescribed Standars as per :
(a) Item A--- of appendix "b"
Quality Characteristics Name of Test Result (b) As per label S.No used declaration for proprietary foods
(c)As per Provisions of the Act and Rules, for both above.
1 Butyro refractometer 28.011 AOAC 59.1 58-60.5
reading at 40 Deg C ()
2 Refractive Index at 40 Not 1.4646-1.4662
Deg C required
3 Saponification value () 28.028 AOAC 189.06 168-177
4 Iodine Value n() 28.028 AOAC 109.52 96-112
CA No. 62/11 Page No. 4 of 13
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5 Unsaponifiable matter () 5.2 DGHS 0.73% Not more than 1.2
MANUAL per cent by weight
6 Acid Value () 5.3 DGHS Not more than 6.0
MANUAL 0.9
Bellier Test (Turbidity 28.125 AOAC 19.5 Deg C 23-27.5
7 temperature Acetic acid
method) ()
8 Test for argemone oil () 7.3 DGHS Negative Negative
MANUAL
9 Test for Hydrocyanic acid 9.4 DGHS Negative Negative
() MANUAL
10 Baudouin Test () 28.129 AOAC Negative Negative
Positive
(Oil soluble
11 Colour () 28.142 AOAC synthetic Nil
colour
present)
12 Test for Caster Oil () 6.3 DGHS Negative Negative
MANUAL
13 Test for Cotton seed Oil () 6.3 DGHS Negative Negative
MANUAL
14 Test for polybromide () 9.4 DGHS Negative Negative
MANUAL
15 Test for Mineral Oil () 28.133 AOAC Negative Negative
16 Test for rice bran oil () 6.5 DGHS Negative Negative
MANUAL
17 Moisture () 28.002 AOAC Not
required ---
OPINION : The sample is Adulterated because it is coloured with unpermitted oil soluble synthetic colour matter. It also does not conforms to standard with respect to Sap Value which is higher than the prescribed maximum limit of 177 and BTT which is less than the prescribed minimum limit of 23.0 Deg C. CA No. 62/11 Page No. 5 of 13 -6- CERTIFICATE OF ANALYSIS BY THE CENTRAL FOOD LABORATORY:-
Prescribed Standards as Sr. Name of per : (a) Item A-of No. Quality Characteristics Method of Results Appendix 'B' test used (b)As per label declaration for proprietary foods.
(c)As per provisions of the Act and Rules, for both above.
1 Butyro Refractometer By DGHS 58.0 to 60.5 Reading at 40 Deg C method 60.1 2 Saponification value -do- 186.90% 168.0 to 177.0 3 Unsaponifiable matter -do- 1.08% Not more than 1.2% 4 Iodine value -do- 110.02 96.0 to 112.0 5 Acid Value -do- 1.68 Not more than 6.0 Belliers Test (Turbidity -do- Could not be 23.0 to 27.5 Deg C Temperature Acetic acid done as the 6 method) Turbidity developed after addition of 70% alcohol 7 Test for Oil soluble colour -do- Positive Shall be negative.
Tests for
Rancidity D.Pearson
Castor Oil DGHS
Mineral Oil man. All the test shall be
8 Argemone Oil -do- All the tests negative.
Halphen -do- negative
Baudouin -do-
Hexabromide -do-
Hydrocyanic Acid -do-
Opinion - I am of the opinion that the sample bearing No. 22/LHA/10705 does not conform to the standards of Mustard Oil (Sarson ka Tel) as per PFA Rules 1955.
CA No. 62/11 Page No. 6 of 13 -7-14. To appreciate whether presence of oil soluble colour would make the sample adulterated, it would be worthwhile to reproduce the relevant part of the definition of the "adulterated" as contained in sub-clause (a) and (b) of Section 2 (ia) of the Act, which reads as follows :
"2(ia) "adulterated" - an article of food shall be deemed to be adulterated -
(a) 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;
(b) if the article contains any other substance which affects, or if the article is so processed as to affect, injuriously the nature, substance or quality thereof;"
15. In the present case, the relevant Section would be sub-clause (a) and sub-clause (b). This aspect was analyzed by Hon'ble Delhi High Court in the case of "Khushi Ram v. The State and Anr., 1984 (II) FAC 256". In Khushi Ram's case sample was of "Bari Ilaichi" and the sample was held to be adulterated on account of presence of mineral oil as reported by the Public Analyst as the standard for "Bari Ilaichi" as provided at A.05.04.02 specified that article should be free from added colouring matter. It was observed that though in the report of the Director, test for mineral oil was stated to be positive but it nowhere gave the quantity, weight or proportion by way of percentage of the mineral oil present in CA No. 62/11 Page No. 7 of 13 -8- the sample "Bari Ilaichi". In the absence of quantity, weight and proportion, it was possible that the presence of mineral oil in the sample may be just negligible so as to cause no prejudice to the purchaser as contemplated in Section 2 (ia) (a) of the Act nor was there any evidence whatsoever to show that the presence of mineral oil in the sample could affect injuriously the nature, substance or quality of the sample of "Bari Ilaichi" as contemplated in Section 2(ia) (b) of the Act. It was, therefore, held that in the absence of any evidence in regard to the prejudice or injurious affect of the presence of mineral oil on the sample, the petitioner was entitled to be exonerated.
16. The Khushi Ram's case was relied upon in recent judgment by Hon'ble Delhi High Court in the matter of "State v. Dwarka Dass, 2007 (1) FAC 229". It was a case in regard to the presence of mineral oil in the sample of "Kali Mirchi". After making a reference to the case of Khushi Ram and observing that there was no evidence to show the prejudice or the injury that could be caused to the purchaser on account of presence of mineral oil in "Kali Mirchi", the petitioner was acquitted.
17. From these judgments it is evident that mere presence of colour is not sufficient to hold that the sample was adulterated. The quantity of such oil also has to be mentioned to determine if its presence would make the sample injurious or prejudicial to the customer. In the present case there is no percentage of soluble oil found present in the sample which CA No. 62/11 Page No. 8 of 13 -9- has been given. Even the exact nature of the soluble colour also has not been disclosed. In view of the cases referred above, simplicitor presence of oil soluble colour would not make the sample adulterated.
18. The second argument of the appellant was that there are huge variations in the report of Public Analyst and Director, CFL and, therefore, the two samples analyzed cannot be considered to be representative of each other. For this it would be pertinent to refer to the two reports.
19. The comparison of the two reports shows that the Saponification value as per the CFL report was found to be 186.90% while as per Public Analyst report it was found to be 189.06%. The expert Mr. Mahendru , who has appeared as DW1 has deposed that the variations in the Saponification value at best can be positive negative 1%. However, in the two reports difference between the values found to be of almost 3%.
20. Likewise, the turbidity bellier test in the Public Analyst report gave the report as 19.5 Deg while in the CFL report the test could not conducted as turbidity developed after addition of 70% of alcohol.
21. Also the acid value in the Public Analyst report was found to be .95% while in the CFL report, it has been found to be 1.68%. Again, it has been explained by DW1 Dr. Mahendru that with passage of time the acid value decreases, but in this case the acid value has increased with the passage of time.
22. It has also worthwhile to refer to the cross-
CA No. 62/11 Page No. 9 of 13- 10 -
examination of DW1, who has clarified that acid value of a given commodity does not show any change on either side in a period of three months or so. Bare value Saponification and the value in respect of the unsaponifiable matter do not change with the passage of time.
23. This aspect was considered in the case of "MCD v. Ghisha Ram, AIR 1967 SC 970", wherein it was held that even after the certificate of CFL, it is open to the accused to show that in the facts of the given case and on the concrete objective grounds that the sample sent for analysis to the Director could not have been taken to a representative sample of the article of food from which it is taken and if this contention is found to be correct, conviction passed on the Certificate will not be sustainable.
24. This judgment has been endorsed by the Hon'ble High Court of Delhi in cases "Kanshi Nath v. State, 2005 (2) FAC 219 Delhi High Court", "MCD v. Bishan Swaroop, 1972 FAC 273 Full Bench Delhi High Court" and in "Criminal Appeal No. 1158 (2007) vide Judgment dated 08.09.2011".
25. In a case titled "State v. Mahender Kumar & Ors., 2008 (1) FAC 177" again a reference was made to the case of "Kanshi Nath" and it was reiterated that if on comparison of the report of Public Analyst and the CFL unacceptable variations are shown in two samples then it cannot be said that the samples were representative and the accused would be entitled to an acquittal.
CA No. 62/11 Page No. 10 of 13- 11 -
26. Therefore, the huge variations in these values which have been found in the report of the Public Analyst and in the report of CFL indicate that the two samples were not representative in nature and the benefit of the same has to be extended to the accused/appellant.
27. The ld. Counsel on behalf of the appellant/accused has also argued that the result of the CFL specifically indicating the parameters due to which the sample was reported to be adulterated had not been put to the appellant in his statement u/s 313 Cr.PC, which has greatly prejudiced his defence and he is entitled to be acquitted on this ground as well.
28. For this the ld. Counsel has relied upon "State (Delhi Administators) v. Ganesh Kumar & Ors., 2001 FAJ 476 Delhi High Court".
29. Section 313 of Code of Criminal Procedure casts a duty on the Court to put to the accused the entire incriminating evidence so as to enable him to explain the circumstances appearing in evidence against him and any failure to do so would amount to serious irregularity vitiating the trial which is shown to have prejudiced to the accused and has resulted in failure of justice.
30. In the case of "Jagdish Prasad v. State of Rajasthan, 1998 (II) FAC 246", the conviction was set aside on the ground that the contents of the report had not been put to the accused while recording the statement u/s 313 Cr.PC. Likewise, in the case of "Mahim Mid Day v. State, 1992 (1) FAC 248, Orissa High Court", observed that non-indication CA No. 62/11 Page No. 11 of 13
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of inculpatory material in its relevant aspect deprives the accused to furnish is replied properly. Recording of statement as the accused is not an empty formality and merely putting the report of the Public Analyst without describing its contents causes serious prejudice to the accused and the conviction is liable to be set aside.
31. Similar were the observations made in the case of "Naseeb Singh v. State of Harynana, 1986 (1) FAC 213".
32. In the case of "State v. Ganesh Kumar (supra)", the Delhi High Court after referring two afore mentioned cases had observed that failure to put the specific contents of the report of the CFL causes serious prejudice to the accused and was a valid ground for acquittal of the accused.
33. In the present case as well as the specific contents of the CFL report have not been put to the accused. The question in regard to the CFL had been framed as under :
"Q. It is further in evidence against you that you availed your statutory right and reference u/s 13(2) of PFA Act and got analyzed the second counter part from CFL Pune, Vide Certificate No. CFL/241/258/05 dated 30.05.2005 according to which the sample does not conform to standard of mustard (Sarson Ka Tel) as per PFA Rules, 1955? What do you have to say?
Ans. No reliance can be placed the report of the Director of CFL, due to sample was not taken properly. Rest is the matter of record."CA No. 62/11 Page No. 12 of 13
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34. Failure to specify the specific reasons for holding the sample to be adulterated having not been put to the accused entitles him to a benefit of acquittal.
35. For the above mentioned reasons, the appeal is allowed. Conviction is hereby set aside and the appellant is acquitted. Bail-bond and surety bond stand discharged.
36. Trial Court Record be sent back alongwith the copy of this order.
37. Appeal file be consigned to the Record Room. Announced in the open Court on this 21st Day of February,2012.
(Neena Bansal Krishna) ASJ-01/PHC/New Delhi CA No. 62/11 Page No. 13 of 13