Delhi District Court
Da vs . Virender Kumar Gupta Page 1 Of 17 on 3 January, 2014
IN THE COURT OF SHRI BALWANT RAI BANSAL
ADDITIONAL CHIEF METROPOLITAN MAGISTRATEII,
PATIALA HOUSE COURTS, NEW DELHI
C.C. No. 175/02
Food Inspector
Department of PFA
Govt. of NCT of Delhi
A20, Lawrence Road
Indl. Area, Delhi - 35
........ Complainant
Versus
Sh. Virender Kumar Gupta S/o Sh. K.C. Gupta
M/s Suvidha Discount Store, 3/84,
Scindia House, Connaught Place,
New Delhi - 01
R/o J63, RBI Colony, Paschim Vihar,
New Delhi
........ VendorcumProprietor
COMPLAINT U/S 16 OF THE PREVENTION OF
FOOD ADULTERATION ACT, 1954
Serial number of the case : 175/02
Date of the commission of the offence : 18.03.2002
Date of filing of the complaint : 20.11.2002
Name of the Complainant, if any : Shri Bal Mukand, Food Inspector
CC No. 175/02
DA Vs. Virender Kumar Gupta Page 1 of 17
Offence complained of or proved : Violation of provisions of Section 2
(ia) (a) (j) & (m) of PFA Act 1954,
violation of Rule 23, 28 & 29 of
PFA Rules and violation of Rule 32
(i) and 36 (2) (a) of PFA Rules;
punishable U/s 16(1) (1A) r/w
section 7 of the PFA Act.
Plea of the accused : Pleaded not guilty
Final order : Acquitted
Arguments heard on : 20.11.2013
Judgment announced on : 03.01.2014
J U D G M E N T
1. The present complaint has been filed on 20.11.2002 by the Delhi Administration through FI Sh. Bal Mukand against the accused Virender Kumar Gupta. It is stated in the complaint that on 18.03.2002 at about 4.00 PM, FI Sh. Jeet Ram purchased a sample of Dal Arhar, a food article for analysis from Virender Kumar Gupta S/o Sh. K.C. Gupta of M/s Suvidha Discount Store, 3/84, Scindia House, Connaught Place, New Delhi01, where the said food article was found stored for sale and where accused Virender Kumar Gupta was found conducting the business of the said food article at the time of sampling. The sample consisted of approximately 3 x 1 Kg. of Dal Arhar in sealed polythene packets having identical label declaration. The sample was taken as such in original sealed condition under the supervision/direction of Sh. S.M. Haider, SDM/LHA. The sample commodity was divided into three equal parts by Food CC No. 175/02 DA Vs. Virender Kumar Gupta Page 2 of 17 Inspector and each sample counterpart 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 packets containing the sample. Notice was given to accused and price of sample was also paid to the accused vide vendor's receipt dated 18.03.2002. Panchnama was also prepared at the spot. All these documents prepared by Food Inspector were signed by accused Virender Kumar Gupta and the other witness namely Sh. S.K. Sharma, FI. It is stated that before starting the sample proceedings, efforts were made to get the public witnesses to join the proceedings, but none came forward and as such Sh. S.K. Sharma, FI was joined as witness.
2. It is further stated that one counterpart of the sample bearing LHA Code No. SMH/LHA/1184 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 is adulterated because it is coloured with synthetic colouring matter viz. Tartrazine. The sample is also misbranded as there is violation of Rule 32 (i) and Rule 32 (2) (a)".
3. It is revealed that Sh. Virender Kumar Gupta S/o Sh. K.C. Gupta was the VendorcumProprietor of M/s Suvidha Discount Store, 3/84, Scindia House, Connaught Polace, New Delhi at the time of sampling and as such he is incharge and responsible for day to day conduct of the business of the said shop. Thereafter, the entire case file was sent to the Director, PFA who accorded the requisite consent U/s 20 of the Act and CC No. 175/02 DA Vs. Virender Kumar Gupta Page 3 of 17 consequent thereto the present complaint was filed against the accused for violation of provisions of Section 2 (ia) (j) & (m) of the PFA Act and also for violation of Rule 23 r/w Rules 28 and 29 of the PFA Rules and also for violation of Rule 32 (i) and 36 (2) (a) of PFA Rules 1955, which is punishable U/s 16 (1A) r/w Section 7 of the PFA Act.
4. The accused was summoned vide order dated 20.11.2002 The accused appeared and moved an application U/s 13 (2) of the PFA 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, Pune for analysis. The Director, CFL, Pune on analysing the second counterpart of the sample in question opined vide his Certificate dated 18.02.2003 that "The sample does not conform to the standards of Dal Arhar as pr PFA Rules 1955 and it also contravenes Rule 32 (i) of the PFA Rules 1955."
5. The prosecution examined Sh. S.M. Haider, the then SDM/LHA under whose supervision the sample proceedings were conducted as PW1 and FI Jeet Ram, who conducted the sample proceedings against the accused as PW2 towards precharge evidence and vide order dated 09.02.2005, pre charge evidence was closed.
6. Charge for violation of provisions of Section 2 (ia) (j) and (m) of the PFA Act and for violation of Rule 23 r/w Rule 28 & 29 of PFA Rules 1955 and for violation of Rule 32 (i) and 36 (2) (a) of PFA Rules; punishable U/s 16 (1) (1A) r/w section 7 of the Act was framed against the CC No. 175/02 DA Vs. Virender Kumar Gupta Page 4 of 17 accused vide order dated 07.06.2005 to which accused pleaded not guilty and claimed trial.
7. Thereafter, in order to prove its case, in post charge evidence the prosecution examined four witnesses including Sh. S.M. Haider, the then SDM/LHA as PW1, FI Sh. Jeet Ram as PW2, FI Bal Mukand, who has filed the present complaint as PW3 and FI S.K. Sharma who was made a witness in the sample proceedings as PW4 and PE was closed vide order dated 13.08.2010.
8. Statement of accused U/s 313 Cr.P.C. was recorded on 16.08.2011 wherein accused claimed himself to be innocent and opted to lead evidence in his defence.
9. Accused in his defence has examined one witness namely Sh. Anil Kumar as DW1 and DE was closed vide order dated 03.02.2012.
10. I have heard the Ld. Counsel for the parties and perused the record carefully.
11. Ld. Counsel for accused has vehemently argued that a representative sample was not lifted by the Food Inspector, which is evident from the variations in the report of Public Analyst and Director, CFL, and on the basis of unrepresentative sample, accused cannot be held guilty for the alleged adulteration found in the sample commodity. He has relied upon authorities titled as State Vs. Ram Rattan Malhotra 2012 (2) FAC 398, Kanshi Nath Vs. State 2005(2) FAC 219, State Vs. Mahender Kumar & Ors, 2008 (1) FAC 177, M/s Raja Ram Seth & Sons & Anr. Vs. Delhi CC No. 175/02 DA Vs. Virender Kumar Gupta Page 5 of 17 Administration, State (Delhi Administration) Vs. Ram Singh & Ors. 2009 (1) FAC 371, State Vs. Suresh Kumar & Anr. 2010 (2) FAC 204. He further argued that both the Analysts have not disclosed the test applied by them for detecting the synthetic colour in the sample of Dal Arhar, benefit of which is liable to be given to the accused. With regard to the allegation of 'misbranding' against the accused for violation of Rule 32 (i) of PFA Rules 1955, Ld. Defence counsel vehemently argued that there was a Department Policy No. F6(228)/85/ENF/PFA according to which cases of breach of Rule 32 regarding label declaration cannot be prosecuted against a person for the first time offence. He contended that no written warning was given to the accused before filing the complaint against him and it is not a case of second violation and hence no complaint could have been filed against the accused for violation of Rule 32 for the first offence in terms of aforesaid department policy which was in force at the time of alleged commission of offence and hence accused is liable to be acquitted of the charges of misbranding. In this regard, he has relied upon the judgment passed by the the Hon'ble High Court of Delhi in S.S. Gokul Krishnana & Ors. Vs. State (Through Food Inspector), 2009 (1) JCC 675 and M/s Gupta Tea Traders & Ors. Vs. State 2012 (2) FAC 415.
12. On the other hand, Ld. SPP for complainant argued that as per report of Director, CFL, the sample was found to be adulterated and misbranded and the report of Director, CFL being conclusive, supersedes the report of Public Analyst and, therefore, the accused cannot be given CC No. 175/02 DA Vs. Virender Kumar Gupta Page 6 of 17 benefit of variations in the reports of PA and CFL and accused is liable to be convicted for the violation of rules as reported by the Director, CFL.
13. All the witnesses examined by the prosecution have deposed as per the averments made in the complaint.
14. PW2 Sh. Jeet Ram who conducted the sample proceedings has deposed in his examinationinchief that on 18.03.2002, he along with FI S.K. Sharma under the supervision of SDM/LHA Sh. S.M. Hyder visited the premises of M/s Suvidha Discount Store, 3/84, Scindia House, CP, New Delhi, where accused Virender Kumar Gupta was found conducting the business of the Dal Arhar which was contained in originally sealed packets of 1 Kg. Each with label declaration. He further deposed that he introduced himself to the accused and intended to purchase sample of said Dal Arhar for analysis to which accused agreed and thereafter he purchased three sealed polythene packet of said Dal Arhar from accused on payment of Rs. 78 vide vendor's receipt Ex. PW1/A. He further deposed that he divided the sample into three equal parts by having one packet as one counterpart and each counterpart was separately packed, fastened and sealed according to PFA Act and Rules. He further deposed that he prepared notice and a copy of the notice was received by the accused and Panchnama was also prepared and all the aforesaid documents were read over and explained to the accused who after understanding the same signed the same. He further deposed that on 19.03.2002, one counterpart of the sample was deposited with Public Analyst and remaining two counterparts were deposited with CC No. 175/02 DA Vs. Virender Kumar Gupta Page 7 of 17 LHA and report of Public Analyst was received which revealed that sample was adulterated as well as misbranded. It is further deposed by PW1 that during investigation conducted by him he found the accused responsible to conduct the business of the shop and after conclusion of investigation, the entire file was sent to the Director, PFA who accorded the requisite consent for launching the prosecution against the accused and accordingly present complaint was filed by FI Bal Mukand and thereafter the intimation letter along with PA's report was sent to the accused by SDM/LHA through registered post.
15. During his deposition, PW2 has also placed on record cash memo issued accused at the spot regarding the sale of sample commodity as Ex. PW2/A, receipt showing deposition of one counterpart of the sample with Public Analyst as Ex. PW2/B, statement given by the accused to the effect that he was the sole proprietor of the shop as Ex. PW2/C, copy of representation submitted by accused as Ex. PW2/D, copy of bill sent by accused to Director, PFA as Ex. PW2/E and reply received by him from M/s Varun Kumar Venkat Kumar as Ex. PW2/F, whereby they denied the sale of sample commodity to the accused.
16. PW1 Sh. S.M. Haider, the then SDM/LHA corroborated the testimony of PW1 in his examinationinchief and has placed on record the vendor's receipt by which price of sample was paid to the accused as Ex. PW1/A, notice in Form VI and Panchnama prepared at the spot as Ex. PW1/B & Ex. PW1/C respectively, receipt showing deposition of two CC No. 175/02 DA Vs. Virender Kumar Gupta Page 8 of 17 counterparts of sample with him as Ex. PW1/D, report of Public Analyst as Ex. PW1/E, reply received by FI from STO during investigation as Ex. PW1/F, consent given by the Director, PFA for initiating the prosecution against the accused as Ex. PW1/G, complaint filed by FI Bal Mukand as Ex. PW1/H, copy of intimation letter sent to the accused along with PA report as Ex. PW1/J, photocopy of postal registration receipt as Ex. PW1/K and the memo by which the second counterpart of the sample was sent to the Court as Ex. PW1/L.
17. PW3 FI Bal Mukand in his examinationinchief stated that Director, PFA Sh. K.S. Wahi accorded the sanction Ex. PW1/G and authorized him to file the complaint and accordingly he filed the complaint Ex. PW1/H and thereafter intimation letter Ex. PW1/J along with the PA report was sent to the accused by registered post by the SDM/LHA which was not received back undelivered.
18. PW4 Sh. S.K. Sharma, FI who was made a witness at the time of sample proceedings has deposed more or less on the similar lines as deposed by PW1 & PW2 in their examinationinchief regarding the sample proceedings.
19. PW1 in his crossexamination after charge denied the suggestion that sample was not sent to CFL which belonged to the accused. PW2 also in his crossexamination after charge denied the suggestion that Tartrazine colour is not injurious to health and cannot be used in the prescribed limits in sweets only. He further denied the suggestion that CC No. 175/02 DA Vs. Virender Kumar Gupta Page 9 of 17 public witnesses were not asked to join intentionally. He was further suggested that the sample was not lifted as per PFA Rules, which was denied by him. He stated that he cannot comment that why the two reports are different.
20. The accused in his statement U/s 313 Cr.P.C. has not disputed that on 18.03.2002 at about 4.00 PM, he was found conducting the business of food articles including Dal Arhar at his shop M/s Suvidha Discount Store, 3/84, Sindhiya House, Connaught Place, New Delhi, when PFA Team including FI Jeet Ram and FI S.K. Sharma under the supervision and direction of SDM/LHA Sh. S.M. Haider visited his aforesaid shop and a sample of Dal Arhar was lifted by the Food Inspector Jeet Ram from him which on being analyzed by the Public Analyst as well as Director, CFL found to be adulterated and misbranded. However, it was contended by the accused that he has made no adulteration in the sample commodity and he purchased the sample commodity from M/s Varun Kumar Venkat Kumar vide Bill No. 2116 dated 31.01.2002 and sample was lifted from the said commodity. It was also contended by accused that he showed the bill to the FI, but he refused to accept the same.
21. The present case has been launched against the accused on the basis of report of Public Analyst Ex. PW1/E. The Public Analyst vide its report Ex. PW1/E found the sample lifted from the accused adulterated as it contained synthetic colouring matter viz. 'Tartrazine' which is not permissible in pulses under the PFA Act & Rules and also found the sample CC No. 175/02 DA Vs. Virender Kumar Gupta Page 10 of 17 misbranded as there is violation of Rule 32 (i) and Rule 36 (2) (a) of PFA Rules 1955. The accused on appearing exercised her right u/s 13 (2) of the PFA Act and consequently second counterpart of the sample selected by the accused was sent to the Central Food Laboratory (CFL), Pune for analyzing the sample and the Director, CFL also vide report/certificate dated 18.02.2003 found the sample adulterated on account of detection of synthetic colour 'Tartrazine' and misbranded on account of violation of Rule 32 (i) of PFA Rules 1955.
22. It is pertinent here to mention that though the accused had taken a defence in his statement U/s 313 Cr.P.C. that he had purchased the sample commodity from M/s Varun Kumar Venkat Kumar vide Bill No. 2116 dated 31.01.2002, original of which has been placed on record as Ex. D1, and also examined one witness namely Sh. Anil Kumar as DW1 in this regard in order to avail the benefit/protection U/s 19 (2) of PFA Act. But, subsequently, during the pendency of the present case, accused gave up the said plea stating that he is not claiming the said protection under warranty clause. The accused also made statement to this effect and accordingly claim of accused regarding benefit U/s 19 (2) of PFA Act was dropped vide order dated 03.10.2013.
23. Now, from the crossexamination of PWs and arguments advanced by the Ld. Counsel for accused, the main defence of the accused appears to be that since there are variations in the report of Public Analyst and Director, CFL in respect of material parameters of the sample CC No. 175/02 DA Vs. Virender Kumar Gupta Page 11 of 17 commodity, it suggests that a representative sample was not lifted in the present case and on the basis of unrepresentative sample, he cannot be held guilty for the alleged adulteration found in the sample commodity.
24. In the present case, the Public Analyst as well as the Director, Central Food Laboratory (CF) failed the sample of Dal Arhar lifted from the accused as synthetic colour 'Tartrazine' was detected which is not permissible in pulses as per PFA Act and Rules, but a perusal of both the reports shows that reports of both the Analysts are divergent to each other. As per report of Public Analyst (PA) Ex. PW1/E, the moisture determined by heating the pulverized grains at 130133 deg. C was found to the extent of 7.86%, while Director, Central Food Laboratory found the same to the extent of 9.19% and the variation is upto 1.33%. Similarly, Public Analyst vide its report Ex. PW1/E found the 'Damaged grain' and 'Weevilled grain' to be Nil, while the Director, CFL after analyzing the second counterpart of the sample found the 'Damaged grain' to the extent of 1.52% and 'Weevilled grain' to the extent of 1.0% in the sample commodity, which is again in contradiction to the report of Public Analyst.
25. The variations in the report of aforesaid two Analysts shows that the sample was not properly mixed up and hence it cannot be said to be representative sample. In State Vs. Rama Rattan Malhotra 2012 (2) FAC 398 after relying upon various judgments titled as Kanshi Nath Vs. State 2005(2) FAC 219 and State Vs. Mahender Kumar & Ors, 2008 (1) FAC 177, the Hon'ble High Court of Delhi has held that, "Since in the present CC No. 175/02 DA Vs. Virender Kumar Gupta Page 12 of 17 case, variation in public analyst and CFL certificates is more than .3%, it would clearly imply that samples in the present case were not representative.". In Kanshi Nath Vs. State (Supra) even while certain other contentions of the accused were rejected, the contention concerning the samples sent to the two test labs not being representative was accepted and the accused were acquitted. In this judgment after referring to the judgment of Calcutta Municipal Corporation Vs. Pawan Kumar Saraf 1999(1) FAC 1 and Municipal Corporation of Delhi Vs. Bishan Sarup 1972 FAC 273, the Hon'ble Delhi High Court has observed that, "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". Similarly in State Vs. Mahender Kumar & Ors. (Supra) has been observed that, " While both reports have concurred in the conclusion that the sample was adulterated, the variation in the material parameters in the sample sent to each of them is not insignificant. In the sample sent to the Public Analyst the ash content is 4.04% whereas in the sample sent to the CFTRI it is 6%. The ash insoluble in dilute HCL is 2.55% in the sample sent to the Public Analyst whereas it is 1.95% in the sample sent to the CFTRI. The lead content is Nil in the first and 5.4 ppm in the second. These variations are more than y.3% which is stated to be the permissible limit. It cannot therefore be said that identical representatives samples were sent to both CC No. 175/02 DA Vs. Virender Kumar Gupta Page 13 of 17 the Public Analyst as well as the CFTRI".
26. It has been further held by the Hon'ble Delhi High Court in M/s Raja Ram Seth & Sons & Anr. Vs. Delhi Administration that, "If the variations in the report of PA and CFL is more than 0.3 % which is stated to be permissible limit, it cannot be said that identical representative samples were sent to both the Public Analyst and CFL and therefore it raises a doubt about the sample of being not homogenized and no conviction is permissible on the basis of said reports and benefit of doubt is liable to be given to the accused." Similar view has been taken by the Hon'ble High Court of Delhi in State (Delhi Administration) Vs. Ram Singh & Ors. 2009 (1) FAC 371. Reliance may also be placed upon State Vs. Suresh Kumar & Anr. 2010 (2) FAC 204.
27. In view of law laid down in the aforesaid authorities, since there are variations in the report of Public Analyst (PA) and Director, Central Food Laboratory as stated above which are beyond the permissible limit of .3 %, it can be safely inferred that sample lifted in the present case was not representative one. Therefore, benefit of doubt is liable to be given to the accused.
28. It is also to be noted that both the Analysts have not disclosed the test/method applied by them to detect the synthetic colour in the sample commodity. They were required to disclose the method applied for detecting the synthetic colour in the sample commodity and in the absence of disclosure of method, it is not ascertainable that how they reached to CC No. 175/02 DA Vs. Virender Kumar Gupta Page 14 of 17 findings that sample was containing synthetic colour i.e. tartrazine and for this reason also, benefit of doubt is liable to be given to the accused.
29. The accused has also been prosecuted for the allegation of 'misbranding'. As per report of Public Analyst Ex. PW1/E, on the basis of which present complaint has been launched against the accused, the sample was also found to be 'misbranded' as there is violation of Rule 32 (i) and Rule 36 (2) (a) of PFA Rules. However, Director, CFL after analyzing the second counterpart of the sample, though also found the sample adulterated, but the ground of 'misbranding' was only in respect of violation of Rule 32
(i) of PFA Rules 1955. No such violation of Rule 36 (2) (a) of PFA Rules 1955 was found by the Director, CFL as reported by the Public Analyst, which again shows contradiction in both the reports.
30. In S.S. Gokul Krishnana case cited supra relied upon by the Ld. Defence Counsel, the Hon'ble High Court of Delhi observed that vide Policy No. F6(228)1/85/ENF./PFA, a decision was taken by the Department of PFA, Govt. of NCT of Delhi in 1985, that deficiency with regard to Rule 32 which pertained to the particulars of the labeling on the container or packet, were technical offence and in such a case, the party concerned be given a written warning drawing its attention to Rule 32 which required of date, month and year of manufacturing to be exhibited on the labels affixed on tin or the packet. It was only if the violation was repeated after a written warning, the party committing the offence second time had to be prosecuted. Though, the aforesaid policy has been subsequently withdrawn CC No. 175/02 DA Vs. Virender Kumar Gupta Page 15 of 17 by the department vide order No. 5/07 dated 14.09.2007 and is no longer in existence. In M/s Gupta Tea Traders & Ors. Vs. State 2012 (2) FAC 415, ratio of judgment passed in S.S. Gokul Krishnan & Ors Vs. State, through Food Inspector was applied by the Hon'ble Delhi High Court by which the petitioners were granted benefit of policy of the Department whereby violation of label declaration under Rule 32 was to be condoned for the first time offender.
31. In the present case, admittedly the sample of Dal Arhar was lifted by the Food Inspector on 18.03.2002. As such, at the relevant time the Department Policy bearing No. F6(228)1/85/ENF./PFA was in existence, which was cancelled, modified or withdrawn by the department on 14.09.2007. As per said policy, the accused should have been given a written warning by the department drawing his attention to Rule 32 which provided for particulars to be exhibited on the sample and only if after receiving the notice, there was violation of Rule 32 by the accused, he is liable to be prosecuted. But, admittedly no such notice was given to the accused. It is also not case of the prosecution that accused has committed the offence for the second time. Therefore, in view of law laid down in the aforesaid authority, the accused is covered under the aforesaid department policy and cannot be said to have violated the Rule 32 (i) of PFA Rules 1955 as reported by the Director, CFL.
32. In view of above reasons and discussions, I am of the considered opinion that the prosecution has failed to prove its case against the accused CC No. 175/02 DA Vs. Virender Kumar Gupta Page 16 of 17 beyond reasonable doubt, benefit of which must go in favour of accused. Accordingly, benefit of doubt is given to the accused and he is acquitted of the charges of 'adulteration' and 'misbranding' leveled against him.
File be consigned to Record Room.
Announced in the open Court (Balwant Rai Bansal)
on 3rd January, 2014 ACMMII/ PHC/ New Delhi
CC No. 175/02
DA Vs. Virender Kumar Gupta Page 17 of 17
CC No. 175/02
DA Vs. Virender Kumar Gupta
03.01.2014
Present: Sh. Masood Ahmad, Ld. SPP for complainant.
Accused with counsel Sh. R.D. Goel.
Vide my separate Judgment of even date dictated and announced in the open court, the accused stands acquitted of the charges leveled against him. Previous Bail Bond / Surety Bond stands cancelled. Surety stands discharged. Endorsement on the documents of the previous surety, if any, be cancelled.
Accused is directed to furnish fresh bail bonds in compliance of Section 437A Cr.P.C. He has furnished the B/B & S/B in the sum of Rs. 20,000/. Same is accepted.
File be consigned to Record Room.
(Balwant Rai Bansal) ACMMII/PHC/ND/03.01.2014 CC No. 175/02 DA Vs. Virender Kumar Gupta Page 18 of 17