Delhi District Court
R/O Block-Ba vs The State on 2 February, 2012
-1-
IN THE COURT OF MS. NEENA BANSAL KRISHNA :
ADDITIONAL SESSIONS JUDGE-01 : NEW DELHI
In re :
CA No. 01/12
Sanjeev Kumar
S/o Late Sh. Daulat Ram
M/s. Nath Super Bazar,
C-3/12, Janak Puri,
New Delhi-58
Also at :-
R/o Block-BA,
Flat No.156-B, LIG,
Janak Puri, New Delhi ..... Petitioner
versus
The State
[Delhi Administration]
PFA Department,
A-20, Lawrence Road,
Industrial Area, Delhi. ..... Respondent
Date of institution of the appeal : 02.01.2012
Date of reserving judgment/order : 19.01.2012
Date of judgment / order : 02.02.2012
JUDGEMENT :
1. This appeal u/s 374 Code of Criminal Procedure against the conviction of the appellant vide judgment dated 21.11.2011 vide which the appellant has been convicted u/s 7/16 of PFA Act and order on sentence dated 02.12.2011 vide CA No. 01/12 Page No. 1 of 10 -2- which the appellant has been sentenced to undergo simple imprisonment for one year and fine of Rs.5,000/-, in default further SI for 10 days.
2. The facts in brief are that on 02.09.2003 at 07.25 P.M Food Inspector, V.P.S. Chaudhary purchased a sample of "Rai Whole" on payment of Rs.36/-, which consisted of 12x50gms sealed polythene bags of "Rai Whole". The samples of "Rai Whole" were duly sealed, according to the Act and the Rules, one sealed bag was deposited with Public Analyst on 03.09.2003, who after analysis gave a report that the sample was adulterated as paper chromatography test was found to be positive.
3. After investigation, the complaint u/s 16 of PFA Act was filed. The accused was summoned who thereafter exercised his right u/s 13(2) of the Act and the sample was sent to Central Food Laboratory (hereinafter referred to as "CFL") who gave the report that the sample of "Mustard whole" (Rai Whole) did not conform to the standards as per PFA Rule 55 and also there was contravention of Rule 32 (f) (i), Rule 23 and Rule 42 (ZZZ) (17) of PFA Rules.
4. Charge for violation of the Provisions of Sub Clause
(a) (b) (j) & (l) of S.2 (ia) and S. (ix) (j) (k) of PFA Act 1954, Rule 32 (f) (i), Rule 23 and Rule 42 (ZZZ) (17) of PFA Rules; punishable u/s 16 (1A) r/w S. 7 of the PFA Act was framed against the accused, to which he pleaded not guilty and claimed trial.
CA No. 01/12 Page No. 2 of 10 -3-5. The prosecution in support of its case examined three witnesses namely PW1 Sh. V.P.S. Chaudhary, Food Inspector, PW2 Sh. M. A. Ashraf, the then SDM/LHA and PW3 Sh. Balwant Shah, Field Assistant.
6. Statement of the accused was recorded u/s 313 Cr.PC in which he pleaded his innocence and accused also opted for leading defence evidence. However, no defence evidence was led on behalf of the accused, hence, defence evidence was closed vide order dated 26.08.2010.
7. The Ld. ACMM after recording the evidence, vide judgment dated 21.11.2011 concluded that the Rai sample did not conform to the prescribed standards under the Act and the Rules and held the accused guilty.
8. Aggrieved, the present appeal has been filed. Ld. counsel on behalf of appellant has argued that as per the Public Analyst report synthetic colour was found which was non-permissible but the name of the colour has not been mentioned. There is a difference in the report of Public Analyst and Director, CFL which shows that the sample taken were not representative samples. Furthermore, the methodology of conducting the test was paper chromatography, which is not conclusive.
9. Furthermore, no public witness has been joined at the time of sampling which is in contravention of section 10 of the Act. Also, no proper sanction has been granted. It is, therefore, argued that the appellant is entitled to be acquitted.
10. Ld. Special PP has argued that once the right under CA No. 01/12 Page No. 3 of 10 -4- 13(2) of the Act is exercised the said report supercedes the report of the Public Analyst and the same cannot be referred for any purpose. Moreover, a clear finding has been given in the report of Public Analyst as well as Director, CFL that the sample of "Rai Whole" were adulterated. It is, therefore, argued that the appellant has been rightly convicted and the present appeal is without merit.
11. I have heard the arguments and perused the record. My observations are as under :
12. The first main argument addressed on behalf of the appellant is that there is a variation in the report of Public Analyst and CFL because of which it cannot be said that the two samples were representative of each other. On the other hand, it has been argued by the Ld. Special PP that once the appellant has exercised his right u/s 13(2) of the Act, the report of CFL becomes final and binding and it supersedes the report of Public Analyst which loses its significance. This aspect was considered in the case of "MCD v. Ghisha Ram, AIR 1967 SC 970", wherein it was held that even after this certificate of CFL, it is open to the accused to show that in the facts of the given case and on the concrete objective grounds, to prove on the record that the sample sent for analysis to the Director could not have been taken to a representative sample of the article of food from which it is taken and if this contention is found to be correct, conviction passed on the certificate will not be sustainable. This judgment has been endorsed by the Hon'ble High Court of Delhi in cases "Kanshi Nath v. State, CA No. 01/12 Page No. 4 of 10 -5- 2005 (2) FAC 219 Delhi High Court" and "MCD v. Bishan Swaroop, 1972 FAC 273 Full Bench Delhi High Court".
13. In a case titled "State v. Mahender Kumar & Ors., 2008 (1) FAC 177" again a reference was made to the case of "Kanshi Nath" and it was reiterated that if on comparison to the report of Public Analyst and the CFL unacceptable variations are shown in two samples then it cannot be said that the samples were representative and the accused would be entitled to an acquittal.
14. Reference on this aspect may be made to the observations of the Double Bench of Punjab High Court in case "MCD v. Niranjan Kumar & Ors., 1965 PLR 941", wherein it was clarified that finality and conclusiveness has only been attached to the facts stated in the report of CFL. It is, however, not conclusive of any other matter and it may still be ascertained whether adulteration as disclosed in the report of the CFL was due to certain factors for which an accused could not be held responsible. In short, the finality or conclusiveness are only to the extent that the sample as sent to the CFL contained what the report disclosed.
15. The argument addressed by Ld. Special PP in this regard is not tenable as the two reports i.e. of Public Analyst and CFL can be compared to see if they pertain to the samples which are representative of each sample.
16. Now, to consider whether the sample of "Rai Whole", which was purchased from the police was adulterated, it would be pertinent to refer to the report of CA No. 01/12 Page No. 5 of 10 -6- Public Analyst and Director, CFL.
17. The variations which have been noted in the Public Analyst and CFL report are as under :
Sr.No. Quality Characteristics PA Report CFL Report 1 Extraneous matter
a) Inorganic 0.21% 1.90%
b) Organic 0.08% NIL 2 Test for Argemone Mexicana Seeds ---- Absent 3 Insect damaged matter NIL NIL 4 Test for colour Oil soluble Non permitted synthetic synthetic red colour & Orange oil present. soluble colours detected.
18. The Public Analyst report Ex.PW1/F has given a finding that the sample of "Rai Whole" was redish brown and it was found to be positive for oil soluble synthetic colour which was not permitted and the methodology used was the chromatography method. The Public Analyst has not been examined by the prosecution to explain why the test was applied to come to the conclusion that the colour detected was not permissible.
19. The credibility of Chromatography Test was considered in the case of "Maya Ram v. State of Punjab, 1987 (II) FAC 320 (P & H)", wherein it was observed as under :
"The ordinary dictionary meaning of chromatography is that it is a method of separating substances in a mixture which depend on selective absorption, partition CA No. 01/12 Page No. 6 of 10 -7- between non-mixing solvents, etc., and which present the substances as a chromatogram, such as a series of visible bands in a vertical tube. And the word 'Chromatic' is meant to pertain to, or consisting of, colours. Thus, paper chromatography would reveal that there is present food colouring on coal tar dye. But on that test to conclude that it was permitted or non-permitted is rather begging the question. No other data is available on the Public Analyst's report as to how he had come to the conclusion that the coal tar dye was non-permitted. It has already been noticed that rule 28permits use of coal tar dye. The Public Analyst should have excluded in this opinion the possibility of all the five permitted coal tar dyes pertaining to red colour. As is plain, no such effort was made. Thus, the report of the Public Analyst cannot be taken as the gospel truth outweigh normal judicial balancing. If the courts were to blindly follow the report of the Public Analyst, then to my mind it would be in the nature of abdication of judicial functions. It is to be borne in mind that the Public Analyst is just an expert and his opinion evidence should normally be clear and unambiguous so that it is understandable, if not to all, at least a sizeable section of the people who are non-experts."
20. The perusal of the CFL report shows that it had detected non-permitted synthetic red and orange oil soluble colour and the methodology used was the one as prescribed in CA No. 01/12 Page No. 7 of 10 -8- DGHS Mannual. The physical appearance of the same was dark orange coloured dried seeds.
21. In a book written by S. N. Mahendroo and published by TATA Macgra-Hill Publishing Ltd. on the subject of "Food Safety A Techno-Legal Analysis", it has been stated by the Scientist that all varieties of mustard seed contain natural colour pigment of their own. These colour pigments are also oil soluble. When the mustard seeds are treated with a solvent to detect the presence of added colour, then the natural colour pigments present in the seed also get leached out in the solvent and when subjected to TLC test, it shows the presence of colour. In order to find out whether the colour is inherent or synthetic or added, it is compared with the known colours and thereafter, to distinguish between the natural colour or added colour, solvent is sprinkled over a filter paper or the chromatograph itself is kept in an oven. The natural colours have tendency to disappear within 3 or 4 days while synthetic colours last longer. However, the natural colour pigments i.e. Carotenoids of mustard seeds do not disappear in the oven for a long time and are sometimes mistaken to be those of synthetic colour. Further Rai/Mustard seeds contains upto 162 micro carotenoide pigments which are oil soluble in nature. The certificate issued by the Director CFL does not show what test was conducted to know whether the oil soluble colour present in the sample was natural or added one. It does not show whether the presence of red and orange shade is oil soluble colouring material or natural one or added one.
CA No. 01/12 Page No. 8 of 10 -9-22. The Chromatography Test can only detect the presence of colour and not whether it is inherent or added one. In order to distinguish between the two, further tests are required to be performed.
23. "Rai Whole" has its own inherent natural colour. Brown coloured "rai"belongs to two varieties of mustard seed.
"Rai" has two natural colours, one belongs to caronides and other to raiboflavines. Caronides are red coloured and raiboflavines are of orange colour. The skin of "rai" seed has fine reticulations as seen through the lens i.e. lattice the surface marked by a not working of fine up standing rigids. The reverse phase Chromatography Test is a confirmatory to find out the presence of synthetic oil soluble dyes in "rai" and it was not available in the year 2003 because the first Manual which came in the year 1975 was revised only in the year 2005.
24. It is, thus, seen that there are several oil soluble colouring matters which are edible and also present in "rai" in its natural growth. The Chromatography Test in itself was not sufficient to determine whether the colours detected in the samples were natural or synthetic. It is nowhere shown that besides TLC Test, any other test was carried out to confirm that the colours found were in fact not permitted synthetic colours.
25. The appeal is accordingly allowed. Conviction is hereby set aside and the appellant is acquitted. His bail bond and surety bond stands cancelled.
CA No. 01/12 Page No. 9 of 10- 10 -
26. Trial Court Record be sent back alongwith the copy of this order.
27. Appeal file be consigned to the Record Room. Announced in the open Court on 02nd Day of February,2012. (Neena Bansal Krishna) ASJ-01/PHC/New Delhi CA No. 01/12 Page No. 10 of 10