Delhi District Court
Da vs Ravinder Singh on 2 January, 2010
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IN THE COURT OF SHRI SANJEEV KUMAR MALHOTRA,
ADDITIONAL CHIEF METROPOLITAN MAGISTRATE-II,
NEWDELHI
C.C. NO. 316/03
DA Versus Ravinder Singh
U/s 7/16 of the Prevention of Food Adulteration Act, 1954
JUDGMENT
a. The Serial number of the case : 316/03
b. The date of the commission of the offence : 12.05.03
c. The name of the Complainant, if any : Sh. Sanjiv Kumar
Gupta, F.I.
d. The name of the accused and his parentage : Ravinder Singh S/o Sh.
Karan Singh, Vendor-
cum-Proprietor of M/s
Bobby Ice Cream
Factory, Khasra No.
957, Suleman Nagar,
Kirari, Delhi-41
e. The offence complained of or proved :u/s 2 (ia)(a) & (m)
punishable under
Section 16(1) 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 : 08.12.09
i. judgment announced on : 02.01.2010
Brief statement of the reasons for such decision-
1. The present complaint is filed by the Delhi Administration through the Food Inspector Sanjiv Kumar Gupta against the accused, namely, 2 Ravinder Singh S/o Sh. Karan Singh, Vendor-cum-Proprietor of M/s Bobby Ice Cream Factory, Khasra No. 957, Suleman Nagar, Kirari, Delhi-41, 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 12.05.03 at about 11:30 a.m., Food Inspector, Sanjiv Kumar Gupta purchased a sample of 'Ice Cream' , a food article for analysis from Ravinder Singh S/o Sh. Karan Singh of M/s Bobby Ice Cream Factory, Khasra No. 957, Suleman Nagar, Kirari, Delhi-41, where the said food article was found stored for sale for human consumption. The accused Ravinder Singh was found conducting the business of the said food article at the time of sampling. The sample consisted of 900 gms of ''Ice Cream'' ( ready for sale ) taken from 48 Ice Cream sticks bearing no label declaration. The sample was taken under the supervision/direction of Sh. Kartar Singh, SDM/LHA. The sample was taken after removing the Ice Cream from the sticks in a clean and dry patila with the help of clean and dry knife and allowed to melt at room temperature and mixed with the same steel knife. The Food Inspector divided the sample into three equal parts then and there by putting them into three clean and dry bottles. 36 drops of formalin added in each counterpart of the sample bottle. Each sample bottle was separately packed, fastened, and sealed according to the PFA Act and Rules. Vendor's signatures were obtained on the LHA slip and the wrapper of the sample bottles. Notice in Form VI was given to the accused Ravinder Singh and the price of the sample was given to him. The Panchnama was prepared at the spot. All the documents were prepared by Sh. Sanjiv Kumar Gupta, Food Inspector and were signed by the accused Ravinder Singh and the other witness Shri J.S. Bisht, FA. Before starting the sample proceedings efforts were 3 made to join the pubic witnesses but none came forward, as such Sh. J.S. Bisht, FA was joined as witness. One counter part of the sample was sent to the Public Analyst in intact condition and two counter parts were deposited with the SDM/LHA in intact condition. The Public Analyst analysed the sample on 26.05.03 and found the sample does not conform to standards because milk fat & total solids is less then the prescribed minimum limit of 10.0% & 36.0% respectively.
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 has accorded consent under Section 20 of PFA Act for institution of the case and has authorised Sh. Sanjiv Kumar Gupta, Food Inspector to file the present complaint.
4. The accused is allegedly to have violated the provisions of Section 2 (ia)(a)(m) punishable U/s 16(1) (a) read with Section 7 of the PFA Act.
5. Summons of the case were served upon the accused person and pursuant thereto he had appeared before the court. On 10.09.03, accused Ravinder Singh moved an application to get the second counterpart of the sample analysed from the Director, CFL while exercising his right under Section 13(2) of the PFA Act and second counterparts of the sample was examined by the Director, CFL, Pune vide Certificate No. CFL/788/1226/2003 dated 18.10.03 and found the sample does not conform to the standards of Ice Cream as per PFA Rules, 1955.
6. Charge for contravention of provision of Section 2 (ia)(a) & (m) 4 punishable under Section 16(1) read with section 7 of the PFA Act was framed against the accused separately on 22.09.08 to which he pleaded not guilty.
7. In support of its case, complainant examined PW-1 Sh. Kartar Singh, SDM/LHA; PW-2 F.I Sanjiv Kumar Gupta & PW-3 F.A. J.S. Bist.
8. Statement of accused was recorded separately on 16.11.09 under Section 313 Cr.P.C wherein he has controverted and rebutted the entire evidence against him while submitting that he is innocent. Accused preferred not to lead evidence in his defence.
9. As per section 2(ia)(a) of PFA Act, an article of food shall be deemed to be adulterated if the article sold by a vendor is not of the nature, substance or quality demanded by the purchaser and is to his prejudice, or is not of the nature substance or quality which it purports or is represented to be.
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 thereunder. Nevertheless, the prosecution has to prove beyond reasonable doubt that 5 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, written submission, relevant provisions of law and the precedents on the point. The SPP has argued that as the case is well proved and the accused is liable to be convicted. Ld. Defence counsel, on the other hand, has vehemently argued that Food Inspector adopted wrong procedure of the sampling and sample was not representative as to why there is vast variation between two reports and drawn my attention in respect of the authorities reported as 2007 (1) JCC 867 ; 2008 (1) FAC 177; 1972 PFA Cases 273; 1980 (II) PFA Cases 145; 2005 (1) FAC 162.
Procedure of sampling
13. Ld. Defence counsel vehemently argued that the Food Inspector adopted the wrong procedure of lifting the sample of ice cream by putting the ice cream in a Patila and then mixing the same with the help of knife. PW-2 F.I. Sanjeev Kumar Gupta deposed as also mentioned in Notice in form VI Ex. PW1/B that 900 gms of ice cream, ready for sale, was taken from 48 ice cream sticks bearing no label declaration, after removing the ice cream from the sticks in a clean and dry steel Patila with the help of clean and dry steel knife and allowed to melt at room temperature and then was mixed with the said steel knife. In his cross-examination by the Ld. Defence counsel, PW-2 confirmed that ice cream is slightly sticky substance, however, denied the suggestion that his procedure of sampling was wrong as there was no need to mix the ice cream as it was already homogenized substance. In an authority reported as 2007 (1) JCC 867, it 6 was held by Hon'ble Mr. Justice Shiv Narayan Dhingra as under:-
'' ..... Sample of ice-cream /kulfi- The Food Inspector after taking several sticks/cups/pieces of bricks of ice cream together and putting them in a Patila ( a metallic utensil) and allowing them to melt in the Patiala-Then stirred the entire mass with the spoon and filled up the melted ice cream into three bottles and added preservative in each bottle at room temperature-Whether it would be a representative sample of ice cream which is sold to the customer-Held: No- Once the ice cream gets melted, the lighter particles in that mass shall float over and the heavier particles shall have tendency to settle down-Fat being lighter will float at the top surface of the molten ice cream due to law of gravity and the heavier particles shall have tendency to settle down and go down-When such a mass of the melted ice cream is stirred, the part of fat will stick to the surface of the container due to the tendency of fat sticking to the surface and the some of the fat would be lost to the 'patila' when sample is taken out- This molten mass of inc cream, would, therefore, not be a representative sample of ice cream which is sold to the customers- Slight variations in the result of the samples and the minimum standard prescribed under the law, it can be safely said that the sample taken by the FI was not properly taken so as to make it a representative sample in case of ice cream /kulfi- The proper way of taking sample is to put directly the part of brick of ice cream or cup or stick of ice cream/kulfi into the sample bottle and allow the same to come to room temperature and then add preservative so that there is no loss of fat etc- Once loss of fat takes place due to faulty procedure of taking samples, the shopkeeper cannot be convicted. ''
14. Admittedly, in the present case, the Food Inspector removed the ice cream from the sticks with the help of clean and dry knife in a clean and 7 dry steel Patila and mixed the same with the help of same knife. Relying upon the authority 2007 (1) JCC 867 ( Supra), I am of the considered opinion that the Food Inspector adopted the wrong procedure of sampling by putting the ice cream in a Patila and then mixing it with the knife.
Whether sample is representative:
15. Ld. SPP for the complainant has submitted that the sample is representative but the Ld. Counsel for the accused has submitted that the sample was not representative sample. Ld. Defence Counsel further submitted that there is difference of more than .3% between the report of the Public Analyst and Report of Director, CFL, Pune which itself shows that the sample was not representative. On the other hand, Ld. SPP argued that the accused challenged the report of Public Analyst after considering the same as erroneous and moved an application for getting analysed the second counterpart by the Director, CFL. Therefore, he cannot again rely upon the report of the Public Analyst and as such report of Public Analyst cannot be looked into for deciding whether the sample was representative or not.
16. In a judgment titled as Kanshi Nath Vs. State, 2005(2) FAC 219, Delhi High Court , it was held by Hon'ble Mr. Justice Badar Durrez Ahmed, as under;-
'' Coming to the next controversy, i.e with regard to the representativeness of the sample, it is clear from the Full bench decision in MCD Vs. Bishan Sarup (supra) that if the samples are not representative, then any test report based on it would not indicate the true position. That being the case, a conviction cannot be founded on such a test report. Upon an examination of the cases mentioned by Mr. 8 Mittal, it also becomes clear that although in terms of Section 13(3) of the PFA Act, the Director's certificate would supersede the Public Analyst's report, the difference in the two can still be looked into by the courts for ascertaining as to whether the samples were representative or not.'' Mr. Sharma had placed reliance on the Supreme Court decision in Calcutta Municipal Corporation (supra) and particularly on paragraph 14 thereof which reads as under:-
14.Thus the legal impact of a certificate of the Director of Central Food Laboratory is three-
fold. It annuls or replaces the report of the Public Analyst, it gains finality regarding the quality and standard of the food article involved in the case and its becomes irrefutable so far as the facts stated therein are concerned. (emphasis added) A careful reading of the Supreme Court decision reveals that the certificate of the Director, CFL supersedes the report of the Public Analyst and is conclusive as regards the quality and standards of the sample tested.
There is no quarrel with this and there can be none. But, this does not enable us to detract from the ratio of the Full Bench decision of this court in the case of MCD vs. Bishan Sarup (supra) that even after such a certificate is issued by the Director, CFL, it would still be open to the accused to establish, if he can do so on concrete grounds, that the sample tested was not a 9 representative one. To this extent, the argument raised by Mr. Sharma that once the certificate of the Director, CFL is obtained, then that is final and conclusive and the Public Analyst's report cannot be looked into at all for any purpose whatsoever, is not quite tenable. If the variation in the two reports is substantial enough, then the Public Analyst's report can certainly be looked into to establish this variation so as to support the contention of the petitioner that the sample was not representative. As indicated above, the Director, CFL who was examined as CW-1 in cross-examination, has clearly stated that if the content of common salt as quantified by the two experts would have a variation of more than- Y.3% then the samples would not be representative. This is an opinion of an expert and one has to go by it. In the facts of the present case, we find that the variation, as indicated above, is more than-Y.3%. Therefore, on the facts of the present case, it can be said that the variation is beyond the acceptable range and would clearly imply that the samples were not representative. In view of this finding and in the background of the law which is well settled, no conviction can be sustained. ''
17. In view of above judgment of the Hon'ble Delhi High Court, I find no 10 force in the contention of the Ld. SPP that the report of the Public Analyst and the Director, CFL cannot be looked into to ascertain whether the sample was representative or not. In the present case, as per report of the Public Analyst dated 26.5.03 wherein the opinion given by the Public Analyst, Delhi was that the sample does not conform to the standard and the result of the Public Analyst was as follows:-
Milk fat - 5.34%
Total solids - 28.88 %
Protein - 3.82%
18. The second counterpart of the same sample was analysed by the Director, Central Food Laboratory, Pune dated 18.10.03 , the result of analysis of second counterpart of the sample commodity was that milk fat was found 2.6% and total solids were found 33.7%. The difference of analysis in respect of milk fat and total solids in respect of sample of ice-cream by the report of two analysts are not within acceptable range of .3% . Thereby relying upon Kashi Nath versus State (supra), I am of the considered view that the sample was not representative due to which different report were given by two experts in respect of counterpart of the same sample.
19. In view of the above discussion and reasons, I am of the considered opinion that the complainant has failed to prove its case against the accused. In result, complaint stands dismissed and accused is acquitted. Bail bond stands cancelled. Surety discharged. File be consigned to Record Room.
Announced in the open court. ( S.K. MALHOTRA )
Dated:02.01.2010 ACMM-II/NEW DELHI.
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