Delhi District Court
Fi vs . Nirmal Jain & Anr. Page 1 Of 21 on 6 January, 2014
IN THE COURT OF SHRI BALWANT RAI BANSAL
ADDITIONAL CHIEF METROPOLITAN MAGISTRATEII,
PATIALA HOUSE COURTS, NEW DELHI
C.C. No. 10/2000
Food Inspector
Department of PFA
Govt. of NCT of Delhi
A20, Lawrence Road
Indl. Area, Delhi - 35
........... Complainant
Versus
1. Smt. Nirmal Jain W/o late Sh. V.K. Jain
M/s Shashank Confectioners Pvt. Ltd.
1862, Chandni Chowk, Delhi110006
............ VendorcumNominee
cum Managing Director
2. M/s Shashank Confectioners Pvt. Ltd.
1862, Chandni Chowk, Delhi110006
............ Vendor Company
COMPLAINT U/S 16 OF THE PREVENTION OF
FOOD ADULTERATION ACT, 1954
Serial number of the case : 10/2000
Date of the commission of the offence : 27.07.1999
Date of filing of the complaint : 13.01.2000
Name of the Complainant, if any : Shri N.N. Sharma, Food Inspector
CC No. 10/2000
FI Vs. Nirmal Jain & Anr. Page 1 of 21
Offence complained of or proved : Violation of provisions of
A.11.02.21 of Appendix B of PFA
Rules 1955 & violation of
provisions of Section 2 (ia) (a) &
(m) of PFA Act 1954, punishable
U/s 16(1) (a) r/w Section 7 of PFA
Act.
Plea of the accused : Pleaded not guilty
Final order : Convicted
Arguments heard on : 11.11.2013
Judgment announced on : 06.01.2014
J U D G M E N T
1. The present complaint has been filed on 13.01.2000 by the Delhi Administration through FI Sh. N.N. Sharma against the accused. It is stated in the complaint that on 27.07.1999 at about 6.00 PM, FI Sh. N.N. Sharma purchased a sample of Ghee, a food article for analysis from Nirmal Jain W/o Late Sh. V.K. Jain at M/s Shashank Confectioners Pvt. Ltd., 1862, Chandni Chowk, Delhi6, where the said food article was found stored in premises for preparation of sweets for sale and where accused Nirmal Jain was found conducting the business of the said food article at the time of sampling. The sample consisted of 450 gms of 'Ghee' taken from open tin bearing no label declaration. The sample was taken under the supervision/direction of Sh. Ajay Chagti, SDM/LHA after proper mixing with the help of clean and dry long handled steel Karchi. Thereafter, the sample was divided into three equal parts by FI by putting it in three clean CC No. 10/2000 FI Vs. Nirmal Jain & Anr. Page 2 of 21 and dry glass bottles and each bottle containing the sample was separately packed, fastened and sealed according to the PFA Act and Rules. The signatures of vendor were obtained on the LHA slip and the wrapper of the sample bottles containing the sample. Notice in Form VI was given to accused and price of sample was also offered to the accused but not accepted. Panchnama was also prepared at the spot. All these documents prepared by FI Sh. N.N. Sharma were signed by accused Nirmal Jain and the other witness namely Sh. V.P.S. Chaudhary, FI. It is stated that before taking the sample, efforts were made to get the public witnesses to join the proceedings, but none came forward.
2. It is further stated that one counterpart of the sample in intact condition was sent to the Public Analyst, Delhi and two counterparts of the sample in intact conditions were deposited with LHA. The Public Analyst analysed the sample and opined that, "The sample does not conform to standards because Reichert value is less than the prescribed minimum limit of 28."`
3. It is revealed that Smt. Nirmal Jain W/o late Sh. V.K. Jain is the Vendor of the firm M/s Shashank Confectioners Pvt. Ltd. and was conducting the business at the time of sampling. M/s Shashank Confectioners Pvt. Ltd. is a Pvt. Ltd. Concern having two directors namely Smt. Nirmal Jain and Sh. Shashank Jain and the company has nominated Smt. Nirmal Jain, Managing Director of the company as Nominee and, therefore, she is responsible and incharge for the conduct of the business of CC No. 10/2000 FI Vs. Nirmal Jain & Anr. Page 3 of 21 the said Company. It is further stated in the complaint that later on vendor cumdirector has claimed that the sample commodity was purchased from M/s S.K. Foods vide bill no. 2628, who had denied the same and the vendor also has not disclosed the name of supplier in the Form VI at the time of sampling. As there is no label declaration as stated by LHA, the contention of the vendor is after thought to avoid prosecution and, therefore, the supplier firm has not been made as delinquent party. It is stated that after conclusion of the investigation, the entire case file was sent to the Director, PFA who accorded the requisite consent U/s 20 of the Act and consequent thereto the present complaint was filed against the accused for violation of provisions of Section Section 2 (ia) (a) & (m) of the PFA Act, 1954, which is punishable U/s 16 (1) (a) r/w Section 7 of the PFA Act 1954.
4. The accused were summoned vide order dated 13.01.2000.
Accused no. 1, representing accused no. 2 as well appeared and moved an application U/s 13 (2) of the Act to get analyzed the second counterpart of the sample from Central Food Laboratory (CFL). The said application was allowed and consequently second counterpart of the sample was sent to CFL, Calcutta for analysis. Director, CFL on analysing the second counterpart of the sample in question opined vide his Certificate dated 27.03.2000 that "The sample of Ghee is adulterated".
5. Notice U/s 251 Cr.P.C. for violation of provisions of Section 2 (ia) (a) & (m) of the PFA Act, punishable U/s 16 (1) (a) r/w section 7 of the PFA Act 1954 was framed against the accused no. 1 for herself and also CC No. 10/2000 FI Vs. Nirmal Jain & Anr. Page 4 of 21 for accused no. 2 being AR of accused no. 2, vide order dated 08.05.2001 to which she pleaded not guilty and claimed trial.
6. Thereafter, the prosecution examined three witnesses namely FI N.N. Sharma as PW1, Shri Ajay Chagti, the then SDM / LHA as PW2 and FI Sh. V.P.S. Chaudhary as PW3 and PE was closed vide order dated 06.02.2010.
7. Statement of accused Nirmal Jain U/s 313 Cr.P.C. was recorded on 10.05.2010 wherein she claimed herself to be innocent. Though, she opted not to lead evidence in her defence, but at the request of the Ld. Defence counsel, the accused was given an opportunity to lead evidence in her defence.
8. Accused in her defence has examined Sh. Balram Soni, Scientific Asstt. Metrological Department as DW1, one Sh. Mohan Chand as DW1 and also examined herself as DW2 and DE was closed vide order dated 19.08.2010.
9. I have heard the Ld. Counsel for the parties and perused the record carefully.
10. Ld. Counsel for accused has argued that sample commodity i.e. Ghee was not for direct sale, but same was to be used in preparation of sweets and hence Food Inspector was not empowered to lift the sample of Ghee. He further argued that sample of Ghee should have been taken after heating the same, which method was not applied by the Food Inspector and hence it is a case of bad sampling for which accused cannot be held guilty.
CC No. 10/2000 FI Vs. Nirmal Jain & Anr. Page 5 of 21He further argued that sample commodity i.e. Ghee was manufactured at Hathras, U.P. and therefore, standards applicable at U.P. were to be applied and if the said standard is applied, then sample commodity cannot be said to be adulterated. Ld. Defence Counsel further argued that there are variations in the report of Public Analyst and Director, Central Food Laboratory, which suggests that a representative sample was not lifted in the present case and on the basis of unrepresentative sample, accused cannot be held guilty for alleged adulteration found in the sample.
11. On the other hand, Ld. SPP for complainant argued that Food Inspector was within his power to lift the sample of Ghee. He contended that it is immaterial that Ghee was not meant for direct sale because Ghee was to be used in preparation of sweets which were admittedly meant for sale for human consumption and therefore the Ghee kept or stored for preparation of Sweets, which were admittedly for sale in the shop is covered under the definition of "sale" as per Section 2 (xiii) of the PFA Act. He further argued that sample of Ghee was lifted in the month of July and it is a common knowledge that in Delhi in the month of July, it is a hot summer and the Ghee was already in melted condition and, therefore, Food Inspector was not required to melt the Ghee further by heating it and it cannot be said that bad sampling procedure was adopted by the Food Inspector. He further argued that there is no evidence to the effect that sample commodity was manufactured at Hathras, U.P. and accused has failed to produce any bill or any other evidence to prove her said claim.
CC No. 10/2000 FI Vs. Nirmal Jain & Anr. Page 6 of 21He further argued that even the accused has not given the declaration as required under proviso to Rule 44B of PFA Rules 1955 at the time of lifting the sample and, therefore, accused cannot be granted benefit on the ground that sample commodity was manufactured at Hathras, U.P. and standards applicable at U.P. were to be applied. Ld. Prosecutor further argued that there are minor variations in the report of PA and CFL for which no benefit can be given to the accused and since the sample lifted from the accused was found to be adulterated as per report of Director, CFL, which supersedes the report of Public Analyst, the accused is liable to be convicted.
12. All the witnesses examined by the prosecution have deposed more or less as per the averments made in the complaint.
13. PW1 Sh. N.N. Sharma who conducted the sample proceedings has deposed in his examinationinchief that on 27.07.1999, he along with FI Shri V.P.S. Chaudhary under the supervision and direction of SDM/LHA Sh. Ajay Chagti reached at M/s Shashank Confectioners Pvt. Ltd., 1862, Chandni Chowk, Delhi6, where the food articles including Ghee were stored and found in the premises for preparation of sweets for sale for human consumption and accused Nirmal Jain was found conducting the business of said shop at that time. He further deposed that he disclosed his identity and intended to purchase a sample of Ghee for analysis, to which accused agreed and thereafter a sample of ghee approximately 450 gms from an open tin bearing no label declaration was taken after properly CC No. 10/2000 FI Vs. Nirmal Jain & Anr. Page 7 of 21 mixing the ghee contained in the tin with the help of clean and dry long handled steel karchi. He further deposed that he offered the price of the sample to accused, but she refused to accept the same on the plea that the said ghee was not for sale and same was only for use for in the preparation of sweets for sale for human consumption. He further deposed that he divided the the sample quantity in three equal parts by putting the same in 3 clean and dry glass bottles and all the three sample bottles were separately packed, marked, fastened and sealed accordingly to PFA Act and Rules.
14. PW1 has further deposed that he gave notice Ex. PW1/A to accused and a copy was also delivered to her. He further deposed that Vendor's receipt PW1/B and panchnama Ex. PW1/C were also prepared at the spot and all the documents Ex. PW1/A to Ex. PW1/C prepared on the spot were read over and explained to the accused who after understanding the same signed the same. It is further deposed by PW1 that one counter part of the sample in intact condition was deposited with PA on 28.07.1999 vide receipt Ex. PW1/D and remaining two counter parts of the sample in a sealed packet were deposited in intact condition with the LHA on the same day vide receipt Ex. PW1/E. He further deposed that PA's report was received according to which sample was found not conforming to the standards and during investigation he found that accused was the vendor of M/s Shashank Confectioners Pvt. Ltd. which was having two directors including accused Nirmal Jain and the company has nominated the accused as Nominee and as such accused is the incharge and responsible for the CC No. 10/2000 FI Vs. Nirmal Jain & Anr. Page 8 of 21 day to day affairs of said company. He further deposed that after completion of investigation, the complete case file along with all statutory documents were sent to Director, PFA who after applying his mind gave the sanction for prosecution against the accused and thereafter complaint was filed by him and after filing the complaint intimation letter along with PA report was sent to accused by registered post through the LHA.
15. During his deposition, PW1 has also placed on record report of Public Analyst as Ex. PW1/F, bill produced by accused as Ex. PW1/G, letter sent by him during investigation to M/s S.K. Foods as Ex. PW1/H, letter sent to accused as Ex. PW1/J, reply of M/s S.K. Foods as Ex. PW1/K, letter sent to Sale Tax Deptt as Ex. PW1/L, its reply as Ex. PW1/M, letter sent to registrar of companies to procure the Constitution of M/s Shashank Confectioners Pvt. Ltd. as Ex. PW1/N, copy of renewal receipt of MCD and Form B of Sales tax department produced by accused during investigation as Ex. PW1/O & Ex. PW1/P respectively, letter sent to Dy. Health Officer as Ex. PW1/Q, another letter sent to accused Nirmal Jain as Ex. PW1/R, consent given by the Director, PFA Department for prosecution of accused as Ex. PW1/S, complaint filed by him as Ex. PW1/T, copy of intimation letter sent to the accused along with PA's report as Ex. PW1/U, copy of postal receipt as Ex. PW1/V and copy of nomination form as Ex. PW1/W.
16. PW 2 Sh. Ajay Chagti under whose supervision and direction, sample proceedings were conducted has corroborated the version of PW1 and deposed on the similar lines as deposed by PW1 in his examinationin CC No. 10/2000 FI Vs. Nirmal Jain & Anr. Page 9 of 21 chief.
17. PW3 Sh. V.P.S. Chaudhary who was made a witness at the time of sample proceedings has also more or less deposed on the similar lines as deposed by PW1 & PW 2 in his examinationinchief regarding the sample proceedings.
18. The accused no. 1, who is also representing accused no. 2 as its AR in her statement U/s 313 Cr.P.C. though has not disputed the visit of PFA team on 27.07.1999 including FI N.N. Sharma & FI V.P.S. Chaudhary under the supervision and direction of SDM/LHA Sh. Ajay Chagti at M/s Shashank Confectioners Pvt. Ltd. 1862, Chandni Chowk, Delhi, where she was found present and lifting of sample of Ghee which on being analyzed by the Public Analyst as well as Director CFL was found to be adulterated. However, it was contended by accused that at the time of lifting of the sample she was in her kitchen and she was called to put the signature. She stated that workers were present there and they used to remove the required quantity of ghee from a tin of 15/16 kg according to need. She contended that the big tin was having proper declaration and manufacturing address i.e. manufacturer in Hathras in Utter Pradesh and the sample was lifted from smaller tin in which Ghee was lying for use which was taken from the big tin. It was also contended by accused that the ghee was not for sale, but it was kept for preparation of sweets. Accused further contended that she is innocent and made no adulteration and had purchased the sample commodity from M/s S.K. Food, Khari Baoli, Delhi.
CC No. 10/2000 FI Vs. Nirmal Jain & Anr. Page 10 of 2119. The case of the prosecution is that on 27.07.1999 at about 6.00 PM, a sample of 'Ghee' was lifted by FI Sh. N.N. Sharma from accused no. 1 Nirmal Jain from M/s Shashank Confectioners Pvt. Ltd.(accused no. 2), of which the accused Nirmal Jain is the Nominee, for analysis. The sample of 'Ghee' was sent to the Public Analyst, who vide his report dated 09.08.1999 found the sample adulterated because Reichert Value was found less than the prescribed minimum limit of 28. The report of Public Analyst has been proved on record as Ex. PW1/F on the basis of which present complaint has been launched against the accused. On appearing, the accused exercised her right U/s 13 (2) of PFA Act and got examined second counterpart of the sample from the Director, CFL, Calcutta who also vide his certificate dated 27.03.2000 found the sample adulterated on the same reason as found by the Public Analyst in its report Ex. PW1/F.
20. First of all, I shall deal with the contention of the accused that Ghee, sample of which was lifted in the present case was not for sale. Accused in her statement recorded U/s 313 Cr.P.C., has taken a plea that the Ghee was not meant for direct sale, but it was kept for preparation of sweets and, therefore, it was contended by the Ld. Counsel for accused that by lifting the sample of Ghee, which was not meant for sale, the Food Inspector acted beyond his jurisdiction.
21. In this regard, PW1 FI N.N. Sharma admitted in his cross examination that the vendor was not selling Ghee to the public but same was for preparation of sweets for sale. PW2 also in his crossexamination CC No. 10/2000 FI Vs. Nirmal Jain & Anr. Page 11 of 21 admitted that vendor refused to accept the sample price while saying that they do not sell Ghee in the market directly. Even if it is so, still as per Section 10 (2) of PFA Act, the Food Inspector was within his power to lift the sample of Ghee which was to be used in preparation of sweets . Clause 2 of Section 10 of PFA Act empowers the Food Inspector to enter and inspect any place where any article of food is manufactured, or stored for sale, or stored for the manufacture of any other article of food for sale. Admittedly, the sweets in which Ghee was to be used as an ingredient were meant for sale, which fact has been admitted by accused in her cross examination and she also made endorsement to this effect in the Vendor's receipt Ex. PW1/B prepared at the spot and in this regard affirmative suggestions have also been given to the PWs as stated above. Therefore, Food Inspector has not acted beyond his jurisdiction by lifting the sample of Ghee which was kept/stored in the shop for preparation of sweets, which were meant for sale. Even otherwise, as per Section 2 (xiii) of PFA Act, "sale" means sale of any article of food, whether for cash or on credit or by way of exchange and whether by wholesale or retail, for human consumption or use, or for analysis, and includes an agreement for sale, an offer for sale, the exposing for sale or having in possession for sale of any such article, and includes also an attempt to sell any such article. As such, definition of "sale" contained in Section 2 (xiii) of the Act is not confined to the sale of articles of food for human consumption only but extends to the sale of any article of food regardless of the use to which it is put.
CC No. 10/2000 FI Vs. Nirmal Jain & Anr. Page 12 of 21Therefore, Ghee kept or stored in the shop for preparation of Sweets, which were admittedly for sale for human consumption in the shop is covered under the definition of "sale" as per Section 2 (xiii) of the PFA Act. Hence, the defence of the accused that Ghee was not meant for direct sale, but was to be used in preparation of sweets, is of no help to the accused.
22. Another contention of the accused is that bad sample procedure has been adopted by the Food Inspector while lifting the sample of Ghee as he did not heat up the Ghee before taking the sample. In this regard, Ld. Counsel for accused placed reliance on judgments reported in State of Gujarat Vs. Prakashbhai Ramchandra Takhtani (Vendor) & Anr., 2010 (1) FAC 460, Mitha Ram Vs. State of Punjab, Cr. Revision No 1150 of 198 and State of Gujarat Vs. Kiritkumar Gopaldas Kakkad & Anr., 2010 (1) FAC 457.
23. In State of Gujarat Vs. Prakashbhai Ramchandra Takhtani case and in another case State of Gujarat Vs. Kiritkumar Gopaldas Kakkad (cited supra), it has been held by the Hon'ble Gujarat High Court that a sample of pure Ghee is to be collected only after heating it in a given temperature and stirring it so as to make it homogeneous. Similarly, in Mitha Ram case (cited supra), the Hon'ble Punjab & Haryana High Court held that the contents of entire tin containing Ghee should be heated so that they change from semisolid state to the liquid state and the contents of the tin should be thoroughly stirred after melting and stirring.
24. PW1 FI N.N. Sharma in his crossexamination though CC No. 10/2000 FI Vs. Nirmal Jain & Anr. Page 13 of 21 admitted that Ghee was not heated, but he stated that it was already in liquid state. He denied the suggestion that the proper method of lifting the sample of Ghee is that Ghee should be heated first and then sample should be taken. Voluntarily, he stated that if the Ghee is in liquid state, there is no need of heating the Ghee.
25. From the aforesaid statement of PW1, it is clear that Ghee was already in liquid state and therefore, he did not heat up the Ghee. There can be no deviation from the law laid down in the aforesaid authorities relied upon by the Ld. Defence Counsel, but the fact of the matter remains that Ghee was already in liquid condition and same was not required to be heated further to bring it in melted condition. Though, a suggestion was put to PW1 by Ld. Defence Counsel that the Ghee was in semiliquid condition, which was denied by him. As per PW1, Ghee was already in liquid/ melted condition. No contrary evidence has been led by the accused to prove that Ghee was in semiliquid condition. It is also to be noted that sample of Ghee was lifted in the month of July on 27.07.1999, which was a hot summer day and it is a common knowledge that temperature in the month of July is very high as rightly argued by the Ld. Prosecutor and in such a hot summer day, Ghee could not be in frozen or semi liquid condition as suggested by Ld. Defence Counsel to PW1 and when the Ghee was already in melted condition, there was no need to heat up the Ghee further. Therefore, it cannot be said that faulty procedure has been adopted by the Food Inspector by not heating the Ghee before lifting the CC No. 10/2000 FI Vs. Nirmal Jain & Anr. Page 14 of 21 sample and hence there is no merit in this contention of the accused.
26. Accused has also taken a plea in her statement recorded U/s 313 Cr.P.C. that she purchased the sample commodity from M/s S.K. Foods, Khari Baoli, Delhi and same was manufactured at Hathras, U.P. As per Ld. Defence Counsel, since the sample commodity was manufactured at Hathras, U.P., standard applicable at Hathras, U.P. was to be applied while examining the sample and if the said standard is applied, the Reichert Value is within prescribed limit and hence sample cannot be said to be adulterated.
27. It is not in dispute that among other documents, notice in Form VI Ex. PW1/A was prepared at the spot, copy of which was also given to the accused. Perusal of same reveals that accused had not disclosed the fact that she had purchased the sample commodity from M/s S.K. Foods, Khari Bawli, Delhi or that same was manufactured at Hathras, U.P. at the time of sampling. In this regard, PW1 FI N.N. Sharma who conducted the sample proceedings has also stated in his evidence that Vendor cum director had also claimed that the sample commodity was purchased by them from M/s S.K. Foods vide bill No. 2628, but S.K. Foods denied the same apart from that the vendor had not disclosed the name of S.K. Foods in Form VI at the time of sampling. He further deposed that since there was no label declaration on the tin as stated by LHA, so the contention of vendor was after though due to which the supplier firm was not included as an accused in the present case. In his crossexamination also, PW1 categorically stated CC No. 10/2000 FI Vs. Nirmal Jain & Anr. Page 15 of 21 that vendor did not disclose at the spot that they purchased the Ghee from M/s S.K. Foods, but later on during investigation, a representation was given by the accused that Ghee was purchased from M/s S.K. Foods and on investigation they denied the sale to the vendor as they used to sell the Ghee in sealed labeled tin. PW2 also in his crossexamination though admitted that accused made one or two representation to the Director, PFA that they purchased the Ghee from M/s S.K. Foods, Khari Baoli, Delhi, but he stated that during investigation, M/s S.K. Foods denied the sale of Ghee to the vendor. He further stated that as the vendor did not inform the source of purchase at the spot or mention in the Notice in Form VI, their disclosure of purchase from M/s S.K. Foods was an after thought.
28. PW1 has also placed on record the reply sent by M/s S.K. Foods as Ex. PW1/K in response to the letter of Food Inspector whereby they denied the sale of sample commodity to the vendor/accused. It was stated that their product is sold in the market bearing label declaration Jagdish Brand, Batch No., Date of manufacturing and complete address of the manufacturer and the vendor has falsely disclosed their name. Though, the photocopy of the Bill No. 2628 by which accused has claimed to have purchased the sample commodity from M/s S.K. Foods has been placed on record as Ex. PW1/G, but in view of categorical denial by the supplier firm M/s S.K. Foods that they supplied the sample commodity to the accused, the onus was upon the accused to prove that she had purchased the sample commodity from M/s S.K. Foods vide Bill Ex. PW1/G. CC No. 10/2000 FI Vs. Nirmal Jain & Anr. Page 16 of 21
29. In order to prove her claim that she had purchased the sample commodity from M/s S.K. Foods and same was manufactured at Hathras, U.P., accused has examined one Sh. Mohan Chand who was posted as Muneem in her shop as DW1 and also examined herself as DW2. In his examinationinchief, DW1 deposed that the sample commodity was purchased from M/s S.K. Foods, Khari Baoli, Delhi and said Ghee was manufactured at Hathras, U.P. He further deposed that there was label on the Tin, where it was mentioned 'manufactured at Hathras' and the label was also containing Agmark. He further deposed that accused did not accept the price because it was not for sale and the Tin which was purchased from M/s S.K. Foods was bearing the aforesaid label but the another tin from which the sample was taken was containing 23 Kg ghee, which was taken out from another tin for use.
30. Accused in her evidence also deposed that she purchased the Ghee from M/s S.K. Foods, Khari Baoli, Delhi, out of which sample of 450 gms Ghee was taken by the FI and the sample commodity was manufactured at Hathras, UP. She also stated that the sample was taken from the tin in which Ghee was taken by karigar as per their requirement and there was Agmark on the tin. She further deposed that after receiving the PA report that the Ghee was found adulterated, she returned the remaining Ghee to M/s S.K. Foods and after fivesix days, they changed the same.
CC No. 10/2000 FI Vs. Nirmal Jain & Anr. Page 17 of 2131. In his crossexamination, DW1 admitted that the Ghee out of which the sample was taken, was being used for preparation of sweet items etc. He stated that the Bill of purchase was shown to the FI at the spot but he did not take the same from them. He further stated that neither he nor the accused made any complaint against the FI to PFA Department or any other concerned Authority to the fact that the FI did not take the Bill of purchase from them at the spot even though it was shown to him.
32. The aforesaid testimony of DW1 is of no help to the accused as it was never the case of accused that bill of purchase was shown to the Food Inspector at the time of sampling and he refused to accept the same, as stated by DW1 in his crossexamination. Rather, the accused admitted in her crossexamination that she did not show any bill to the FI at the time of sampling. She further admitted that she had not mentioned on the documents prepared at the spot from where she purchased the sample i.e. Ghee.
33. From the aforesaid evidence produced on record by the accused, it is evident that accused has not been able to prove that she had purchased the sample commodity from M/s S.K. Foods vide bill Ex. PW1/G or that sample commodity was manufactured at Hathras, U.P. Neither original of bill Ex. PW1/G has been placed on record by the accused nor any positive evidence has been led by accused to prove her said claim. The witness examined by the accused is making contradictory statement to the statement of accused and his testimony is of no help to the CC No. 10/2000 FI Vs. Nirmal Jain & Anr. Page 18 of 21 accused as stated above. Merely, on the basis of photocopy of bill Ex. PW1/G, it cannot be said that accused had purchased the sample commodity from M/s S.K. Foods in view of categorical denial by the said firm vide their letter Ex. PW1/K that they have supplied the sample commodity to the accused. Though, the accused has also placed on record the photocopy of receipt in respect of total payment of 20 bills paid to M/s S.K. Foods as Mark X, but perusal of same reveals that none of the payment was in respect of the sample commodity and same are in respect of other transactions.
34. Accused has also taken a plea that big tin of Ghee purchased from M/s S.K. Foods was having label declaration and the Food Inspector lifted the sample from the smaller tin in which the Ghee was transferred from the big tin having Agmark. Ld. Counsel for accused contended that as per Rule 44B of PFA Rules 1955, the accused can sell loose Ghee after opening the Agmark sealed container in quantities not exceeding 2 Kg. at a time and same can also be used in the preparation of confectioneries. I agree with the aforesaid contention of the Ld. Counsel for the accused, but while doing so, the accused was required to make a declaration in Form VI B to the effect that the ghee so sold or used by her in the preparation of confectionery items was taken from a tin with batch number and the source of purchase against the invoice, cash/credit memo as provided in proviso to Rule 44 B of PFA Rules 1955. Admittedly, no such declaration was made by the accused in Form VI Ex. PW1/A at the time of sampling, therefore CC No. 10/2000 FI Vs. Nirmal Jain & Anr. Page 19 of 21 this plea of the accused that big tin from which the Ghee was transferred into a small tin, was having Agmark is of no avail.
35. Ld. Counsel for accused has also pointed out the variations in the report of Public Analyst and Director, Central Food Laboratory and contended that since there are variations in both the reports, it cannot be said that a representative sample was lifted in the present case, benefit of which is liable to be given to the accused.
36. Perusal of report of both the Analysts shows that there are minor variations in respect of certain parameters of the sample commodity and on the said count, it cannot be concluded that sample was not made homogenized. As per report of Public Analyst Ex. PW1/F, 'Butyro refractrometer Reading at 40 Deg. C' was 43, while as per report of Director, CFL, same was 42.7 and the variation is upto 00.3. Similarly, as per report of Public Analyst 'Moisture' was 0.057%, while Director, CFL after analyzing the second counterpart of the sample found the 'Moisture' to the extent of 0.04% and the variation is upto 0.017%. Again, Public Analyst found the 'Reichert value' to be 26.01, and the Director CFL found the same to be 26.2 against the prescribed minimum limit of 28 and the variation is upto 0.19. The only variation which is beyond the permissible limit of .3% was in respect of 'Free Fatty Acids as Oleic acid', which as per the report of Public Analyst was 1.44%, while the Director, CFL found the same to the extent of 1.01% and the variation is upto .43%. However, on the basis of this minor variation, which is negligible, it cannot be CC No. 10/2000 FI Vs. Nirmal Jain & Anr. Page 20 of 21 concluded that sample was not representative one.
37. In view of aforesaid discussions, since as per the report of Director, CFL, which supersedes the report of Public Analyst, 'Reichert Value' was found to be 26.2, which was less than the minimum prescribed limit of 28 as per the standard applicable in Delhi and accused has miserably failed to prove that sample commodity was manufactured at Hatrhras, UP and standard applicable at UP was applicable, therefore, the accused is held guilty for violation of provisions of A.11.02.21 of Appendix B of PFA Rules 1955 and of Section 2(ia) (a) & (m) of PFA Act 1954 and is accordingly liable to be convicted for the said offences, which are punishable under section 16 (1) (a) r/w Section 7 of PFA Act 1954.
Now to come up on 13.01.2014 for arguments on quantum of sentence.
Announced in the open Court (Balwant Rai Bansal)
on 6th January, 2014 ACMMII/ PHC/ New Delhi
CC No. 10/2000
FI Vs. Nirmal Jain & Anr. Page 21 of 21
CC No. 152/03
DA Vs. Nirmal Jain Etc.
06.01.2014
Present: None for complainant.
Accused no. 1, representing accused no. 2 as well, with counsel Sh. M.L. Narang.
Clarifications made by the counsel for accused.
Put up at 3.00 PM for orders.
(Balwant Rai Bansal)
ACMMII/PHC/ND/06.01.2014
AT 3.00 PM
Present: As above.
Vide my separate Judgment of even date dictated and announced in the open court, accused is held guilty for violation of provisions of A.11.02.21 of Appendix B of PFA Rules 1955 and of Section 2(ia) (a) & (m) of PFA Act 1954 and is accordingly liable to be convicted for the said offences, which are punishable under section 16(1) (a) r/w Section 7 of PFA Act 1954.
Put up for arguments on quantum of sentence on 13.01.2014.
(Balwant Rai Bansal) ACMMII/PHC/ND/06.01.2014 CC No. 10/2000 FI Vs. Nirmal Jain & Anr. Page 22 of 21