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[Cites 22, Cited by 0]

Delhi District Court

Hari Chand vs Delhi Administration on 1 July, 2008

                                                     1

          IN THE COURT OF SHRI S.K. SARVARIA 

                 ADDITIONAL SESSIONS JUDGE

                          NEW DELHI 



Criminal Appeal No. 08/2003



Hari Chand
son of Sh Govind Ram
M/s Bharat Dairy
J 501, Jahangir Puri, Delhi­33
R/o A­68, Sanjay Nagar
Mahindra Park, Delhi

                                                                      Appellant 

                          Vs.



Delhi Administration

                                                                   Respondent

Date of Institution                :  18.3.2003
Date when the arguments
were heard                         : 31.5.08
Date of judgment             :  01.7.08



JUDGMENT

This appeal is directed against the judgment dated 07.02.2003 passed by learned Metropolitan Magistrate by which he was convicted under section U/s 16 read with section 7 of PFA Act 1954. By subsequent order on sentence dated 17.2.2003 the appellant was 2 sentenced to undergo rigorous imprisonment for a period of six months and to pay fine of Rs.1000/­. In default of payment of fine, he was to undergo simple imprisonment for two months. Aggrieved by the judgment and order on sentence passed by the learned trial court the appellant has preferred this appeal.

BRIEF FACTS The prosecution case, in brief, is that on 5.7.96 at about 3.00 p.m, the Food Inspector Sh. Satish Kumar, purchased a sample of cow's milk from the appellant for analysis at M/s Bharat Dairy, J­501, Jahangir Puri, Delhi where the said food article was found stored for sale for human consumption and appellant was found conducting the business of the dairy. Sample of cow's milk was taken from an open drum having declaration as cow's milk and sample was taken after proper mixing with the help of clean and dry plunger. So purchased sample was divided into three equal parts and each part was packed, fastened, marked and sealed as provided in PFA Act. The one counter part of the sample was sent to Public Analyst for analysis in intact condition who opined that sample was did not conform to the prescribed standards. Thereafter, the sanction for prosecution was obtained from 3 the competent authority and complaint was filed against the appellant before the ld Metropolitan Magistrate, New Delhi. CHARGE AND PLEA OF THE ACCUSED Notice under section 251 Cr.P.C for commission of offence punishable under section 16(1) read with Section 7/16 PFA Act was given to the appellant by the learned trial court to which he pleaded not guilty and claimed trial.

PROSECUTION EVIDENCE In support of its case, the prosecution has examined three witnesses in all. PW­1 Food Inspector Sh. Satish Kumar Gupta, PW­2 Sh. S.K. Nagpal,A.I.H.A. And PW­3 Sh. Shyam Lal Food Inspector, and closed its evidence.

PLEA AND DEFENCE OF THE ACCUSED.

In his statement U/s 313 Cr.P.C the appellant stated that Food Inspector did not try to associate independent witnesses. The sample was not properly packed. Appellant stated that he was not proprietor of the dairy. Appellant further stated that he is innocent and has been falsely implicated in this case. He stated that the sample was not properly homogenized, so the sample was not representative as such 4 variation in the report has been declared.

In support of its case the appellant has produced only one witness Dr. O. P. Singhal and closed his defence evidence. FINDINGS.

I have heard the learned counsel for the appellant, the learned Special Public Prosecutor for the respondent State and have gone through the written arguments filed on behalf of the appellant, the trial court record, the appeal file and the relevant provisions of law, carefully.

The main contention on behalf of the appellant is that the milk was not properly homogenised before taking sample by the Food Inspector which fact is reflected due to the glaring difference between the report of Public Analyst Ex PW1/E and the Certificate issued by Director CFL Ex PX. On behalf of the respondent State it is argued that the evidence on record shows that the milk was properly homogenised before taking sample of the milk so the sample and its counterparts were of representative character.

The question arises whether despite the fact that Certificate of Director CFL supersedes the report of the Public Analyst, the difference between the two can be looked into to infer that the sample was was not 5 of representative character. The answer lies in the following authorities:

In State v. Mahender Kumar and ors. 2008 (1) FAC 177 (Del), it was held as follows:
"11. 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 by .3% which is stated to be the permissible limit. It cannot therefore be said that identical representative samples were sent to both the Public Analyst as well as the CFTRI.
In Kanshi Nath v. State 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 Kanshi Nath after referring to the judgment of the Supreme Court in Calcutta Municipal Corporation v. Pawan Kumar Saraf 1999 (1) FAC 1 and the judgment of the Full Bench of this Court in Municipal Corporation of Delhi v. Bishan Sarup 1972 FAC 273, this 6 Court observed as under (PFA Cases, p. 227):
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.
Following the said judgment of this Court in Kanshi Nath, it is held that in the instant case the variation in the samples sent to the Public Analyst and the CFTRI is beyond the acceptable limits and renders the samples unrepresentative. The conviction of the Respondents can, therefore, not be sustained in law. Accordingly, the impugned order of the ASJ acquitting the Respondents calls for no interference."

In MCD v Jawahar Lal 1980 (II) FAC 145 (Del), it was observed as follows:

"6. Without expressing our opinion with regard to the representative nature of the sample, we are inclined to accept the second submission sought to be urged by Shri Soni. From the certificate of the Director it cannot be inferred that any water had been added to the milk. The non­fatty solid falling below the prescribed standard 7 would only justify an inference that because of the excess in fat contents either the cow was not properly fed or the report of the Public Analyst was erroneous. Shri Randhir Jain, however, contends that to accept this contention would amount to holding as enquiry into the certificate of the Director. Further, no ground has been made out by leading evidence to challenge the correctness of the same which, in law, is conclusive of the facts stated therein. That being so, this will be embarking upon the domain of conjectures in accepting the submission of Shri Soni. We do not agree. When asked to explain for the presence of large quantity of fat contents in the sample than the prescribed standard, Shri Jain had no answer. As a matter of fact a question was addressed to Shri .P. Sharma, Public Analyst who was examined as D.W. 1 by asking him to describe reasons for a sample containing 8.14 per cent milk solids not fat and at 5.1 per cent when tested in August 1976. On again being tested on or about 25th January, 1977 would be found to contain 4.8 percent fat and milk solids not fat 7.7 percent. Shri Sharma stated that he could not give any rationable or scientific reasons for such a difference.
Admittedly, the sample taken was that of cow's milk and that being so the fat contents ought to be 3.5 8 percent. Making allowance for marginal difference the fat contents could not be 4.8 percent in cow's milk. There is thus no escape from the inference that either the test conducted was erroneous or that there was imbalance in the fodder fed to the cow which resulted in the high percentage of fat present in it while giving lower percentage in solids not fats.
In this view of the matter the question of law, including the one with regard the maintainability of the appeal, are not required be gone into."

In MCD v. Lala Ram and anr, 1980 (II) FAC 147 (Del), it was held:

"3. It is true that the certificate of the Director supersedes the report of the Public Analyst and that the report of the Public Analyst cannot be made the basis for recording conviction or acquittal of an accused person, but in the instant case what has shocked us is that the two samples, one sent to the Public Analyst seeking his opinion and the other counter­part sent to the Director seeking his opinion, appear to be absolutely divergent and different from each other. The Learned counsel for the appellant was unable to explain the circumstances under which the divergent results were given by the two Competent authorities in examining the sample. It is for 9 this reason that we have looked into the report of the Public Analyst more so when the consequences involved are penal and the minimum sentence of imprisonment to be awarded to a delinquent person found guilty of having committed an offence under the Act, is 6 months, Rigorous Imprisonment. As per his certificate dt. Dec. 3 1976, the Director found not only "a few dead and living insects" but also "excessive amount of foreign seeds" in the counter­part of the sample. Not only this, the Director did not find any rodent excreta as was found by the Public Analyst. As earlier noted in this judgment, the Public Analyst did not find edible seeds other than cumin seeds in the sample and the remark given in his report against the column "Edible seeds other than cumin seeds" was "Nil". Similar remark was given by the Public Analyst in his report against the column "Insect infestation per 100 gms." It is really strange as to how, if the sample was the same, the Director was able to find a few dead and living insects besides noticing excessive amount of foreign seeds, more especially when the Director had certified that the seals of the sample sent to him were intact. We are conscious of the fact that in law the certificate of the Director supersedes the report of the Public Analyst and that it is the certificate of the Director alone which has to be taken into consideration for recording acquittal or 10 conviction against an accused person, but in the circumstances noted above, we are compelled to look into the report of the Public Analyst as well. We may warn that this judgment not be taken as a precedent for comparing the certificate of the Director with the report of the Public Analyst, as in the peculiar circumstances of this case, we were, as noted earlier, compelled to look into the report of the Public Analyst, because it was pointed out by the learned Counsel for the respondents that the counter­part of the sample sent to the Director appeared to be sample of another person rather than of the respondent."

In view of the above case law it is clear that the difference between the report of the of the Public Analyst and in the Certificate issued by Director CFL shows that the sample taken by the Food Inspector was not of representative character and the accused is entitled to be acquitted in such cases. In the present case the report of the Public Analyst Ex PW1/E shows that the fat contents of the sample of cow milk were 4.7% while solids not fat 7.53% while according to the Certificate issued by Director CFL Ex PX the milk fat 11 contents in the counterpart of the sample were 3.3% and milk solids not fat 6.9%. According to the expert witness DW1 Dr O. P. Singhal examined as defence witness by the appellant before learned trial court in the same samples variations of the results of two laboratories and between two analyst should not be more than 0.1%. Therefore, in this case there being appreciable difference between the two counterparts of the sample of the milk as depicted by the report of the Public Analyst Ex PW1/E and the Certificate issued by Director CFLEx PX, the only inference in the light of the above case law is that the sample taken by the Food Inspector was not of representative character. The fact that the sample of the food item should be of representative character , which is required to be sent for analysis, has attained judicial recognition and if the sample is not of representative character of the food item from which a sample is taken then the accused is entitled to be acquitted is 12 also by now a settled legal position.

On behalf of the respondent State it is argued that the difference between the report of Public Analyst and the Certificate given by Director CFL doesn't matter as the latter would supersede the report of the Public Analyst. Reliance is placed upon the following authorities:

In "Jagdish Prasad v. State of Delhi" AIR 1982 SC 57, relied on behalf of the respondent State it was observed as follows:
"4. The offence took place nearly eleven years ago and there is no evidence on the record to show what was the extent of insect infestation in the sample when it was taken. A rather interesting feature of this case is that when, on the application of the prosecution, the report of the Director of Central Food Laboratory was brought on the record of the case, the earlier report of the analyst was replaced by that report. The result is that though there is evidence on the record to show that the sample was "highly insect infested" on September 10, 1971 when the Director of the Central Food Laboratory gave his report there is no evidence on the record to show as to what was the state of the sample on October 3, 1970. Shri Bawa Gurcharan Singh argues that in this state of affairs the appellant is entitled to an acquittal but we are not inclined to accept that submission. The evidence on the whole can be accepted as justifying the conclusion that on the date on which the sample was taken, it was insect infested within the meaning of section 2 (ia) (f) of the Act."
13

In Mathukutty v. State of Kerala , AIR 1988 Kerala 60, relied on behalf of the respondent State wherein it was observed as follows:

"15. We are not impressed by the argument that because there is disparity in the results declared by the public analyst and by the Director of Central Food Laboratory and living insects were present at the time of analysis, it has to be assumed that sample contained only eggs or larvae at the time of the sale or that there was rapid growth of insects after the date of sale or that the sample was not insect infested at the time of sale and the percentage of insect damaged matter could have been below 5% or even negligible at the time of sale. The report of the public analyst is superseded by the certificate of the Director. Even if there is wide variation between the Director's certificate and analyst's report, the former supersedes the latter and the superseded report cannot be revived for any purpose. The difference in the percentage of insect infested matter as reported in Ext. P6 and Ext. D1 cannot be an indication of any steady growth of insects or increase in infestation after the sale. One of us in Food Inspector v. Hameed, 1983 Ker LT 901 : (1983 Cri LJ NOC 224), after considering practically the entire case law on the point, including the decisions in Abdul Hameed v. Food Inspector, 1969 Ker LR 922, State of Kerala v. 14 Vasudevan Nair, 1974 Ker LT 617 : (1975 Cri LJ 97) (FB), State of Kerala v. P.K. Chamu, 1975 Ker LT 411 and State of Kerala v. K.C. John, 1978 Ker LT 738 :
(1979 Cri LJ NOC 48), observed in para 23 :
".....it is settled law that the report of the Public Analyst is superseded by the certificate of the Director which has conclusive effect also. Analysis in the two cases is done by different persons at different laboratories. It would not be surprising if, assuming the best conditions, there is some difference in the results of the two analyses. Even in cases where sampling and analysis is done to the satisfaction of the most exacting standards, there could be variation in the percentage of different components arrived at in the two laboratories. But, once the report of the Public Analyst is superseded by the report of the Director of Central Food Laboratory, there is no report of the Public Analyst available in the eyes of law for comparison with the certificate issued by the Director. The court cannot, therefore, legitimately make such a comparison and conclude that there are divergences and therefrom draw an inference that the sampling must have been done improperly. To arrive at such a conclusion would amount to flying in the face of settled position of 15 the law and the terms of Sub­Secs. (3) and (5) of S.13 of the Act."

We hold that the above is the correct position of law. The divergences in the report and the certificate cannot be used to contend that the number of insects or the percentage of insect damaged seeds have increased during the interval between the analysis by the Public Analyst and the Director. Hence we cannot draw an inference that on the date of sampling, number of insects or percentage of insect damaged seeds would have been much less than what is shown in the report or the certificate."

In Jagdish Prasad's case (supra) both reports of Public Analyst and that of Director CFL were procured by the prosecution. The Certificate of Director CFL was sought by the prosecution as the percentage of the insect infection in the sample of raw mango peals was not given in the report of the Public Analyst. In that case the Certificate of Director CFL was not obtained by sending sample to him on the request of the accused made under section 13 (2) of the PFA Act. The right under this provision of law is exercised here by the accused to challenge the report of the Public Analyst. Therefore, the Jagdish 16 Prasad's case (supra) is distinguishable on facts and inapplicable to the present appeals. The observations of Kerala High Court in Mathukutty's case (supra) being in conflict with the consistent view of our Hon High Court in Lala Ram's case (supra), Jawaharlal's case (supra) and the recent Mahender Kumar's case (supra) does not help the respondent State in this appeal.

There is one more important aspect in this case. There is inordinate delay in initiating prosecution by filing complaint in the court and also in communicating the result of the Public Analyst to the appellant by the Local Health Authority. The sample of cow milk was taken by the Food Inspector on 5/7/1996. It was sent to the Public Analyst on the same day who has given his report dated 30/7/1996 Ex PW1/E. But the intimation Ex PW2/E regarding the report of the Public Analyst was given to the appellant on 28/10/1996 for exercising the right under section 13 (2) of the PFA Act by the Local Held Authority. The complaint against the appellant/accused was filed before learned Metropolitan Magistrate on 14/10/1996. The second counterpart of the sample was sent to CFL on 20/10/1996 and was received in CFL 6/11/1996 and the CertificateEx PX was issued by Director CFL on 17 4/12/1996 which shows that the counterpart of sample sent to CFL was analysed between 6/11/1996 to 4/12/1986.

In The State of Punjab v. Balwant Singh 1992 (II) Recent Criminal Report (R.C.R.) 57 (P & H), it was observed as follows:

"8. Another aspect of the matter is that the sample was received by the Public Analyst on 26­6­1985 and it was analysed on 26­7­1985 as is evident from the report Ext. PD. This report was forwarded to Shri S. L. Lamba, Food Inspector on 2­8­1985 for launching prosecution against the accused. Complaint dated 13­8­1985 was filed in the Court. A latter dated 14­8­1985 issued by the local Health Authority was received by the accused along with a copy of the Public Analyst's report wherein a direction was issued to the accused that if he was interested, he could get the second sample tested from the Central Food Laboratory Ghaziabad and if he so desired, he could ask for the same within ten days of the receipt of the letter. On 20­8­19856, the accused moved an application for producing the sample in the Court. The sample was produced in the Court on 18­10­1985 and it was analysed by the Central Food Laboratory on 28­10­1985. Thus the whole process consumed more than four months resulting in violation of the provisions of Section 13(2) of the Act. This Section envisages prompt despatch of the sample within a period of five days from the receipt of such 18 requisition from the Court. Where sample of food article like milk which is of perishable nature is kept for such a ling time of more than four months at room temperature (Particularly when sample is taken in the hot month of June) it is likely to deteriorate. The accused lost no time in availing of this statutory protection. Had moved the application on 20­8­1985 for production of the sample in the Court but it was produced on 18­10­1985. To add to the miseries of the accused it was analysed on 28­10­ 1985 i.e., much more than four months from the taking of the sample. Under these circumstances, non­production of the sample in the Court for such a long time will certainly cause material prejudice to the accused and breach of the aforesaid mandatory Section of the Act which is fatal to the prosecution."

In Gopi Ram v. The State of Haryana 1987 (I) FAC 153 (P & H), it was observed as follows:

"4. The petitioner was served on March 21, 1979 for, appearance in Court i e. exactly four months after the date on which, the sample was taken In the wake of, the above finding, it is only after March 21, 1979 that the, Petitioner could be expected to apply to the Court for sending the second sample for re­analysis. A period of four months having already elapsed, the sample of milk could not have remained fit for analysis. The learned 19 counsel has placed reliance upon the observation of Their . Lordship of the Supreme Court in Municipal Corporation of Delhi v, Ghisa Ram, 1975 (I) FAG 186 as followed by this Court in Resham Singh v. The State of PunJab, 1972 FAC 732 that even if a preservative is added in the sample of milk at room .temperature, the percentage of fat and ­non­fatty, solids contents for purposes of analysis will be retained only for about four months. This period having already elapsed, it has been rightly argued that petitioner was deprived of his valuable right causing him serious, prejudice. "

In Makhan Singh v. State of U.P 1988 (II) FAC 62 (All), it was observed as follows:

"3. The contention of the revisionist is that an account of undue delay in filing the Complaint against him for the alleged adulteration and also on account of inordinate delay in sending the report of the Public Analyst to him be was 'deprived of his valuable right to move for obtaining the report of the Director of Central Food Laboratory under Section 13(2) of the Act with regard to the sample of the milk taken. His contention is that as the report of the Public Analyst was sent to him as late as on 12­1­1980 that is to say about 8 months after taking of the sample it was obviously quite useless for him to move far obtaining the, report of the Central Food Laboratory under Section 13 of the Act, because by that time the sample must be decomposed and deteriorated and would not have remained fit for analysis his 20 connection it is material to note that even the complaint against the , revisionist on the basis of the report of the Public Analyst seems to have been reveived in the Court on 10­1­80. The complaint is dated 31­ 12­79. The revisionist has relied on the cast of Municipal Corporation of .Delhi v. Ghisa Ram 1975(1) FAC 186 and Desh Raj v. State of U.P. 1985(I) FAC 135 in support of his contention. On account of inordinate delay the revisionist was virtually deprived of his valuable right under Section 13 of the Act to get the sample analysed by the Director of Central Food Laboratory. It was of no use to move for obtaining the report of the Director , of Central Food Laboratory as the sample kept in the office of Chief Medical Officer, must have decomposed and deteriorated making it unfit for analysis by the Director. Consequently, the conviction and sentences of the revisionist cannot be upheld in the revision. The revision has to be allowed."

In Sheikh Abdul v. State of Maharashtra 1986 (III) FAC 122 (Bom), it was observed as follows:

"2. ............The usual procedure was followed. One of the samples of the milk was sent to the Public Analyst and his Report was received by the Local Health Authority on 5­2­ 1980. The Authority, however, dragged its feet for the full period of 4 months further and did not institute prosecution before 7­6­1980 and thereafter on 9­6­1980 a notice was given by the local authority to the petitioner under section 13 of, the Food Adulteration Act informing him that he was at liberty to send to the Director of 21 Central Food Laboratory another sample of milk. There is a dispute as to whether such a notice was received by the petitioner or not. But the lower Court has recorded a finding in that behalf and I find no reason to disagree with the same. The fact, however, remains that at the most the petitioner would have asked for the 2nd sample to be sent to the Director, by making an application in that behalf on or before 19­6­1980. The sample would have been thereafter sent to the Director. This means that the sample of the milk would be reaching the Director long after the expiry of the period of 6 months. From the very nature of things, the milk could not remain undecomposed for that much of period, exceeding even 6 months. There is no evidence in this case that the milk was kept in the cold storage. The only contention is that preservative was added. It has been held by our Court in 1982, Maharashtra Law Journal p.181 that even assuming that the preservative was added, the normal course is that the milk would get decomposed and it is futile to send the sample for analysis after that period. In these circumstances, the normal presumption would be that the milk must have been decomposed. If the Department wanted to prove that the milk had remained in tact even after such a longer period, it was for the prosecution to prove that fact by examining proper experts in that behalf."
22

In the light of the above case law it is clear that the delay in launching prosecution against the appellant and also delay in intimating him about the Public Analyst report has prejudiced the appellant the sample being of cow milk, a perishable food item.

In view of the above the appellant is entitled to the benefit of doubt and acquittal in this appeal so there is no need to go into the other arguments raised on behalf of the appellants like non­joining of public witnesses, non examination of important witness and non­ mentioning of the essential facts regarding homogenisation of the milk in the panchnama etc. RESULT OF THE APPEAL In view of the above discussion the appeal is allowed. The impugned judgement of conviction and order on sentence passed by the learned trial court are set­aside. The appellant is acquitted of the offences under sections 7/16 of the PFA Act for which Notice under section 251 CrPC was given by the learned trial court to him. The bail bonds furnished in the appeal are cancelled. The fine if paid by the appellant in terms of order on sentence passed by the learned trial court 23 be refunded to him by the learned trial court. The trial court record be returned alongwith the copy of this judgment. The judgment be sent to the server (www.delhidistrictcourts.nic.in). The appeal file be consigned to the record room.

Announced in the open court on 1st day of July, 2008 ( S.K. SARVARIA ) Additional Sessions Judge Patiala House Court New Delhi