Delhi District Court
Da vs Darshan Singh & Others on 15 January, 2010
1
IN THE COURT OF SHRI SANJEEV KUMAR MALHOTRA,
ADDITIONAL CHIEF METROPOLITAN MAGISTRATE-II,
NEWDELHI
C.C. No. 80/96
DA Versus Darshan Singh & Others
U/s 7/16 of the Prevention of Food Adulteration Act, 1954
JUDGMENT
a. The Serial number of the case : 80/96 b. The date of the commission of the offence :23.11.95 c. The name of the Complainant, if any :Dr. G.C. Raha, LHA d. The name of the accused and his parentage :(1) Darshan Singh S/o Sh. Man Singh (Sr. Manager) , Kendriya Bhandar Packing Godown No. 19, Mahadev Road, New Delhi-1 R/o WZ 15, Krishna Park, New Delhi -18 (2) Kendriya Bhandar, ( Central Govt. Employees Consumer Co-
operative Society Ltd.) E Wing, Pushpa Bhawan, Madangir Road, New Delhi.
(3) Avneet Goyal S/o Late Sh. Brij Mohan M/s R.B. Enterprises, 4064, Naya Bazar, Delhi.
e. The offence complained of or proved :u/s 2(ia)(a)(f) (m) of PFA Act, 2 punishable u/s 16(1) (1A) read with section 7 of the PFA Act.
f. The plea of the accused : Pleaded not guilty g. The final order : Acquitted h. Arguments heard on : 18.12.09 i. judgment announced on : 15.01.2010
Brief statement of the reasons for such decision-
1. The present complaint is filed by the Delhi Administration through LHA Dr. G.C. Raha against the above said accused persons, 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 complainant has submitted that on 23.11.95 at about 2.15 p.m., Food Inspector, Dr. Pramod Kothekar purchased a sample of ' Kabli Chana Whole', a food article for analysis from accused Darshan Singh S/o Sh. Man Singh at Kendriya Bhandar Packing Godown No. 19, Mahadev Road, New Delhi-1, where the said food article was found stored for sale. The accused Darshan Singh was found conducting the business of the Kendriya Bhandar at the time of sampling. The sample consisted of three sealed packets each containing 1 k.g of Kabli Chana Whole, taken from the same lot having identical label declaration. The Food Inspector divided the sample then and there into three equal parts and each part containing the sample was separately packed, fastened, marked and sealed according to the PFA Act and Rules. The vendor's signatures were obtained on the LHA slip and wrapper of the sample parts/packets. Notice was given to the accused Darshan Singh and the price of the sample was also given to him. The Panchnama was prepared at the spot. All the documents 3 were prepared by Dr. Pramod Kothekar, Food Inspector and were signed by the accused Darshan Singh and the other witness Ms. Usha Kiran, Food Inspector. Before starting the sample proceedings efforts were made to join the pubic 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, Delhi in intact condition and two counter parts were deposited with the LHA in intact condition. The Public Analyst analysed the sample on 8.12.95 and found the sample is adulterated because it is insect infested.
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 Dr. G.C. Raha, LHA to file the present complaint.
4. The accused are allegedly to have violated the provisions of Section 2 (ia)(a)(b)(f)(h)(l)(m) of PFA Act punishable U/s 16 (1)(1A ) read with Section 7 of the PFA Act .
5. Summons of the case were served upon the accused person and pursuant thereto they had appeared before the court. Charge for contravention of provision of Section 2(ia)(a)(f) (m) of PFA Act, punishable u/s 16(1) (1A) read with section 7 of the PFA Act was framed against the accused persons separately on 24.5.2000 to which they pleaded not guilty.
6. In support of its case, complainant examined PW-1 F.I. Pramod Kothekar & PW-2 F.I. Usha Kiran.
47. Statements of accused persons were recorded under Section 313 Cr.P.C on 22.4.09 wherein they have controverted and rebutted the entire evidence against him while submitting that they are innocent. Accused preferred to lead evidence in their defence but despite opportunities they failed to lead evidence in their defence and finally their DE was closed on 11.9.09.
8.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.
9. As per Section 2 (ia) (f) of PFA Act, if the article consists wholly or in part of any filthy, putrid, rotten, decomposed or diseased animal or vegetable substance or is insect-infested or is otherwise unfit for human consumption.
10. 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.
11. 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 5 thereunder. Nevertheless, the prosecution has to prove beyond reasonable doubt that what was stored or sold was food.
ARGUMENTS AND FINDINGS.
12.I have heard both the sides at length and have given my conscious thought and prolonged consideration to the material on record, relevant provisions of law and the precedents on the point. The SPP has argued that as the case is well proved and the accused are liable to be convicted. Ld. Defence counsel for accused No.1 & 2, on the other hand, has vehemently argued that polythene packets are not suitable container and the Public Analyst found the sample insect-infested due to presence of 12 insects, although, the weevilled grains were found 2.01%. Ld. Defence counsel further argued that as per standards of Chana Whole as given in item No. A.18.06.08 of Appendix 'B' of PFA Rules, the weevilled grains should not be more than 10% by count. Ld. Counsel for accused No.3 argued that at the time of sampling, no insects were found and the complainant had also filed an application under Section 321 Cr.P.C for withdrawal of the present complaint. Ld. Counsel has also drawn my attention in respect of the authorities reported as 1980 (1) PFA Cases 272; 1972 PFA Cases 636; I- 1998 All India PFA Journal 39; II-1998 All India PFA Journal 126; 1972 PFA Cases 335 ; 2001 (2) FAC 9; 2009 (2) JCC 904; 1984 (1) PFA Cases 316; 2004 (1) FAC 65.
Whether the polythene bags were suitable container, (violation of Rule 14 of PFA Rules, 1955)
13.Rule 14 of the PFA Rules provides that the sample of food for the purpose of analysis shall be taken in clean dry bottles or jars or in 6 other suitable container which shall be closed sufficiently to prevent leakage evaporation or in the case of dry substance , entrance of moisture and shall be carefully sealed.
14. Ld. Defence counsel argued that the polythene bags were not suitable containers as it were not capable to prevent evaporation or entrance of moisture and sample should have been taken after putting the polythene bag in sealed container/jar. On the other hand, Ld. SPP argued that polythene bag was a sealed container itself having identical label declaration, therefore, there was no need to put the polythene bags in the jars as per Rule 22A of the PFA Rules.
15. In an authority reported as 1993 (2) PFA Cases 236 titled as the Food Inspector Vs. K. Hanumanthaiah Setty , Andhra Pradesh High Court, it was held as under :-
'' Rule 14 speaks of manner of sending samples for analysis and states '' samples of food for the purpose of analysis shall be taken in clean dry bottles or jars or any other suitable containers which shall be closed sufficiently tight to prevent leakage, evaporation or in the case of substance, entrance of moisture and shall be carefully sealed''. The polythene bag does not come within the definition of either bottle or a jar and it will also not come within the ambit of '' other suitable container''. The polythene bag cannot be called a container and hardly it is a wrapper. The language of rule 14 admits of no ambiguity and it is imperative for the prosecution to use the container as contemplated under the said rule. The object is not only to prevent 7 leakage or evaporation of the contents of the bottles, but also to eliminate the chances of presence of moisture. The polythene bag cannot ensure the same and cannot be called a container within the meaning of Rule 14. As the rule is mandatory in nature and the penal provision has to be construed strictly, the court of Magistrate was correct in holding that the accused was entitled to acquittal. ''
16.In an another authority reported as 1998 (1) PFA Cases 9 titled as State of Punjab Vs. Raman Kumar, Hon'ble Full Bench of Punjab & Haryana High Court held as under:-
'' Para 14. It may be noted that in the case in hand, the Food Inspector had purchased six packets out of 12 packets of 100 grams each which were wrapped in polythene papers and on which it was printed as Kashmiri Mirch Chillies Powder M.S. Company, Delhi Trade Mark. The so purchased packets were made into three packets containing 2 packets in each parcel....................
Further para 19 reads as under.
The only point to be determined is as to whether a polythene container or a wrapper of strong thick paper can be called suitable containers as defined in rule 14 of the Rules. Rule 14 provides that samples of food or the purpose of analysis shall be taken in clean dry bottles or jars or in other suitable 8 containers, which shall be closed sufficiently tight to prevent leakage, evaporation, or in the case of dry substance, entrance of moisture and shall be carefully sealed. A reading of the rule gives us a clear impression that other suitable containers mentioned in the rule connotes that it should be as hard as bottles and jars and also could be closed sufficiently tight to prevent leakage, evaporation and in the case of dry substance entrance of moisture. The words bottles and jars are generally understood as closed bottles or glass jars.
Para 20. When interpreting other suitable containers, the provisions contained in rule 14 of the Rules have to be read as a whole and the words suitable container take the hue from the words used in the rule itself. The words bottles or jars mentioned before other suitable container in rule 14 itself indicates that a suitable container should be as hard as a closed bottle or as a glass jar. The expression used in rule 16 (a) which reads as under:
''16 (a) The stopper shall first be securely fastened so as to prevent leakage of the contents in transit.'' is also indicative of the fact that the container stipulated in rule 14 will have a stopper also. With the advancement of time some other containers are also available which are as hard as closed; though they 9 may be made of some other hard substance like tin, hard plastic or other material like the one in which we get tooth paste, cream etc. In sum and substance a suitable container as defined in rule 14, should be of an impervious character which should be closed sufficiently tight and carefully sealed to prevent leakage, evaporation or entrance of moisture.'' Para 21- In our considered view, polythene containers or a wrapper of strong thick paper cannot conform to a definition of container as contained in rule 14 of the Rules........''
17. Reverting back to the facts of the present case, as per Notice in form VI Ex.PW1/B which was prepared at the spot, it is mentioned by the F.I that Kabli Chana Whole taken as such 3 x 1 k.g of originally sealed polypakets of same lot having following label declaration, packets were not put into any other jar or suitable containers. Rule 22A says that similar sealed container having identical labels to constitute the quantity of a food sample, it does not say that sealed container amount to suitable container. This issue is squarely covered by the decision of the Hon'ble Full Bench of Punjab & Haryana High Court ( Supra) that poly packets do not conform to the definition of container as contained in Rule 14 of the PFA Rules, therefore, I am of the considered opinion that poly packets as such were not suitable containers and same should have been put in clean and dry bottles or jars so as to prevent evaporation or entrance of moisture.
Whether the sample commodity was insect-infested.
18. It is admitted case of the complainant that sample was lifted on 10 23.11.95 and was analysed by the Public Analyst as per report Ex.PW1/F on 27.11.95 and twelve living insects in 1 k.g of sample were found in the sample commodity by the Public Analyst and it was opined that the sample is adulterated as it was insect-infested. Ld. Defence counsel vehemently argued that the sample commodity cannot be termed as insect-infested as twelve living insects in 1.k.g of Kabli Channa Whole were found in the one counterpart by the Public Analyst. Ld. Defence counsel further argued that there is delay of about eleven months in filing the complaint which caused prejudice to the accused in obtaining the correct analysis of the sample commodity from the Director, CFL. Ld. Defence counsel further argued that even as per standard of Channa Whole as given in item No. A.18.06.08 of Appendix 'B' of PFA Rules, the weevilled grains should not be more than 10% by count and uric acid which is an excreta of insects should not be more than 30 micro gram per kilo gram, and if these two parameters are above the prescribed standards then the sample commodity can be termed as insect-infected and not conforming to standard. Ld. Defence counsel further argued that the weevilled grains means the grains holed by the insects and drawn my attention in respect of the report of PA wherein the weevilled grains were found 2.01% and uric acid contents were found 16 mili gram per kilo gram. On the other hand, it was argued by the Ld. SPP that both the Analysts found the sample commodity insect-infested.
19. In a Criminal Appeal No. 158/1988 titled as State Vs Jehmat Mal, wherein it is held by Hon'ble Mr. Justice S.N. Dhingra, High Court of Delhi as under:-
''Law also permits foreign matters up to one percent out of which 0.10% can be impurities of animal origin. Thus, in food grains presence of impurities of animal origin like Rodent excreta are not ruled 11 out and mere presence of Rodent excreta the food grain can be called as adulterated food grain unless the quantity exceeds the limit provided by law. In the present case 01 full Rodent excreta or 08 pieces of small Rodent excreta in 300 gms by no imagination can be said that exceeding 0.1 percent of 300 gms. Similarly presence pf 07 living and 15 dead insects is natural as the law recognizes presence of weevilled grains which means those grains whose kernels are wholly or partially bored by grains. If insects bore the kernels, many a time insects are very likely to be present in kernel and keep moving in and out of the food grains. The presence of living or dead insects is not adulteration unless the quantity of insects infested grains exceeds the prescribed limit. It was not the case of prosecution that the percentage of insect infested food grains was more than the prescribed quantity. I find that the Trial Court was justified in acquitting the accused there is no force in the appeal. The appeal is hereby dismissed.''
20. In an authority reported as 1984 (I) PFA Cases 316, wherein it is held by Hon'ble Delhi High Court, as under:-
''Para 20. Mrs. Kumar contended that presence of dead insects in prepared food would be wholly unpermissible. Mr. Sanghi, contended that insects may be inside the kernel and it was only during the process of frying that the insects may have come out and died. In our view the answer to this argument of Mrs. Kumar depends upon the interpretation to be given to Rule 48B. There is a lacuna in Rule 48B and it will be for the rule making authority under the Prevention of Food Adulteration Rules to clarify whether insect infestation is permissible in cashew nuts and if so, to what extent. The rule making authority also needs to clarify item No. 14 of Rule 22 as to what is prepared food or processed food.'' 12
21. In an authority reported as State Vs. Anil Kumar Sodhi & Anothers , 2009 (2) JCC 904, it was held by the Hon'ble Delhi High Court, as under:-.
'' Prevention of Food Adulteration Act, 1954- Secs 7 & 16
- Appeal against acquittal-Metropolitan Magistrate convicted the accused/respondent- In appeal Sessions Judge acquitted the accused/respondent- Hence this appeal- Food Inspector visited the firm of respondent and purchased 600 gms Atta- Sample was sent to P.A. Delhi for analysis- P.A analysed the sample and found Atta was adulterated because 3 living and 3 insects were found- A.D.J held that since Atta, is standardised commodity and the standards have been complied with, it cannot be said that food article was adulterated- And observed that it was not a case of adulteration- Finding of insects does not mean that it had been deliberately done by the respondent to increase the value or down grade the quality of the food- As per report of P.A. It is also found standard of Atta was not below the quality which was required-Presence of insects was only an incident which can occur due to open storage- Appeal dismissed.''
22. In an another authority reported as 1984 (II) PFA Cases 304 titled as MCD Vs. Ved Parkash wherein it is as under :-
'' Prevention of Food Adulteration Act, 1954- Section 13 (2)- exercise of right under-delay in filing complaint- it cannot be said that the trial court was wrong in holding that the sample bottle was not securely fastened because the Director, Central Food Laboratory had found '' appreciable amount'' of living insects in the sample examined by him after a lapse of five months. In other words, the bottle of sample was not air 13 tight and the insects already present in the sample of Amchur whole continued breeding. The trial court was accordingly right in holding that the respondent because of the late filing of the complaint, could not effectively exercise his right under Section 13 (2) of the Act in obtaining the opinion of the Director, Central Food Laboratory, Calcutta, on the sample being not in the same condition in which it was at the time it was purchased. ''
23. Reverting back to the facts of the present case, the weevilled grains and uric acid contents were found within prescribed standard of Kabli Chana. Relying upon State Vs Jehmat Mal (Supra ) had it been that the sample was insect infested , both these parameters should be above the prescribed standard. The sample packets were not put in suitable container as such there is violation of Rule 14 of PFA Rules and period of about 11 months in filing the complaint, also frustrated the right of accused under Section 13 (2) of PFA Act , as the complainant is aware that accused can exercise their right under Section 13 (2) of the PFA Act only after filing the complaint. Therefore, I am of the considered opinion that the complainant has failed to prove its case against the accused persons. In result, complaint stands dismissed and accused persons are acquitted. Bail bonds stand cancelled. Sureties discharged. File be consigned to the record room.
Announced in the open court. ( S.K. MALHOTRA ) Dated:15.01.2010 ACMM-II/NEW DELHI.