Delhi District Court
Da vs Pawan Kumar Aggarwal & Others on 28 January, 2010
1
IN THE COURT OF SHRI SANJEEV KUMAR MALHOTRA,
ADDITIONAL CHIEF METROPOLITAN MAGISTRATE-II,
NEWDELHI
C.C. NO. 169/98
DA Versus Pawan Kumar Aggarwal & Others
U/s 7/16 of the Prevention of Food Adulteration Act, 1954
JUDGMENT
a. The Serial number of the case : 169/98 b. The date of the commission of the offence : 23.8.98 c. The name of the Complainant, if any : F.I. Sanjeev Gupta d. The name of the accused and his parentage :(1) Pawan Kumar Aggarwal S/o Sh.
Shiv Gopal, Gopal Provision Store, Shop No. 1, Prithvi Raj Lane Near Khan Market, New Delhi.
(2) Parivar Agro Industries, B-8, Sector-7, Noida, Gautam Budh Nagar (U.P). Regd.
Office : 1397, Chowk Tilak Bazar, Delhi, (3) Sh. Rakesh Singh, Manager, Parivar Agro Industries, B-8, Sector-7, Noida, Gautam Budh Nagar (U.P), 2 (4) Annacco Food Industries Pvt. Ltd., Proprietor of Parivar Agro Industries, B-8, Sector-7, Noida, Ghaziabad (U.P), Regd. Office:1397, Chowk Tilak Bazar, Delhi.
(5) M/s K. Bros. & Sons under the proprietorship of Annacco Food Industries (P) Ltd.
(6) Sh. Naval Kishore Chaurasia, Director of M/s Parivar Agro Industries, B-8, Sector-7, Noida.
(7) Sh. Satish Kishore Chaurasia, Director of Parivar Agro Industries, B-
8, Sector-7, Noida.
e. The offence complained of or proved : u/s 2 (ia) (a) (l) &
(m) punishable U/s 16(1) (a) 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 : 13.01.2010 i. judgment announced on : 28.01.2010
Brief statement of the reasons for such decision-
1. The present complaint is filed by the Delhi Administration through Food Inspector Sh. Sanjeev Gupta against the above said accused 3 persons, 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 23.8.98 at about 3.30 p.m., Food Inspector, Sh. Bal Mukund, purchased a sample of 'Mustard oil', a food article, for analysis from Sh. Pawan Kumar Aggarwal S/o Sh. Shiv Gopal, at Gopal Provision Store, Shop No. M-1, Prithvi Raj Lane Near Khan Market, New Delhi, where the said food article was found stored for sale and Sh. Pawan Kumar Aggarwal was found conducting the business of the said store at the time of sampling. The sample consisted of 3 X 1000 ml of sealed plastic bottles of mustard oil taken as such in originally sealed condition bearing identical label declaration. The Food Inspector divided the sample then and there into three equal parts. Each bottle containing the sample was separately packed, fastened, marked and sealed according to the PFA Act and Rules. The vendor's signatures were obtained on the LHA slip and the wrapper of the sample bottles. Notice was given to Sh. Pawan Kumar Aggarwal and the price of the sample was also given to him. Panchnama too was prepared at the spot. All the documents were prepared by Food Inspector Sh. Bal Mukund and were signed by the Sh. Pawan Kumar Aggarwal and the other witness Sh. C.B. Boora, FI. Before starting the sample proceedings efforts were made to join the pubic witnesses but none came forward. The sample was taken under the supervision of Sh. Sanjeev Gupta, FI. One counter part of the sample was sent to the Public Analyst, in intact condition and two counter parts were deposited with the LHA in intact condition. The Public Analyst, Delhi analysed the sample on 01.09.98 and according to which the sample does not conform under A17.06 4 of Appendix 'B' of PFA Rules, 1955, because sample shows presence of argemone oil.
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 accorded consent under Section 20 of PFA Act for institution of the case and authorised Sh. Sanjeev Gupta, Food Inspector to file the present complaint .
4. The accused are allegedly to have violated the provisions of Section 2(ia) (a)(b)(c)(f)(h) (l) punishable U/s 16(1) (1A) read with Section 7 of the PFA Act.
5. Summons of the case were served upon the accused and pursuant thereto he had appeared before the court. On 17.12.98, accused No.1 Pawan Kumar Aggarwal 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, Calcutta vide Certificate No. G.14-4/98(Pt.III)-25 dated 21.01.99 according to which the sample of Mustard Oil is adulterated.
6. Notice under Section 251 Cr.P.C for contravention of provision of Section 2 (ia) (a) (l) & (m) punishable U/s 16(1) (a) read with Section 7 of the PFA Act was framed against the accused persons separately on 13.08.2002 to which they pleaded not guilty and claimed trial.
57. In support of its case, complainant examined PW-1 Sh. S.K. Nanda, LHA; PW-2 F.I. Sh. Sanjeev Gupta, PW-3 FI Sh. Bal Mukund and PW-4 FI C.B. Boora.
8. Statements of accused persons were recorded in the case on 24.11.04, 4.1.2005 under Section 313 Cr.P.C wherein they have controverted and rebutted the entire evidence against them while submitting by accused persons that they are innocent and preferred to lead evidence in their defence and examined Ms. Premwati Chaughan as DW-1 & Dr. Shailesh Kumar Mishra as DW-2.
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)(l) of PFA Act, 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 renders it injurious to health.
11. 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 constitute are present in quantities not within the prescribed limits of variability but which does not render it injurious to health.
12. 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 6 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 what was stored or sold was food.
ARGUMENTS AND FINDINGS.
13. I have heard both the sides at length and have given my conscious thought and prolonged consideration to the material on record, relevant provisions of law and the precedents on the point. The SPP has argued that as the case is well proved and the accused are liable to be convicted. On the other hand, Ld. Defence counsel argued that the sample was not representative as to why the reports of the two Analysts are divergent to a great extent. Ld. Defence counsel further argued that the Public Analyst opined that the sample does not conform to the standards as it shows presence of argemone oil but no argemone oil was found by the Director, CFL in the counterpart of the same sample.
Whether sample is representative:
14. 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 argued that as per the report of the Public Analyst, BTT Value and Saponification Value of sample commodity were found within prescribed standards but the sample was opined not conforming to the standards of mustard oil as per PFA Rules for the presence of argemone oil, while the Director, CFL did not find any argemone oil in 7 the counterpart of the same sample commodity but found BTT 28.2 Deg. C ( against maximum 27.5 Deg. C) and Saponification Value 178 ( against maximum 177 ). 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.
15. 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. 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 8 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 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 9 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. ''
16. In view of above judgment of the Hon'ble Delhi High Court, I find no 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 01.09.98 wherein the opinion given by the Public Analyst, Delhi was that the 10 sample does not conform to the standards and the result of the Public Analyst was as follows:-
B.R at 40 Deg. C. : 60.0
Iodine value : 110.58
Saponification value : 169.12
Acid value : 1.74
Test for Argemone oil : Positive
B.T.T ( Acetic acid method ) : 26.8 Deg. C.
17. The second counterpart of the same sample was analysed by the Director, Central Food Laboratory, Calcutta on dated 21.1.99 , the result of analysis of second counterpart of the sample commodity is as under :
Butyrorefractometer reading at 40 Deg. C - 59.8 Saponification value - 178 Iodine value - 109.7 acid value - 3.67 Test for Argemone oil by T.L.C. - Negative B.T.T ( Acetic acid method ) - 28.2 Deg. C.
18. The two analytic reports of the Public Analyst and the Director, CFL in respect of the same counterpart of the sample commodity are divergent to a great extent. One counterpart of the sample commodity shows BTT value & Saponification Value in the prescribed limit while another counterpart of the same sample commodity shows BTT value & Saponification Value above the prescribed limit. Further, Public Analyst finds the test for argemone oil 'positive' and due to only this reason declared the sample non-
11conforming to the standard of mustard oil, while Director, CFL, finds the test for argemone oil 'Negative' in the counterpart of the same sample commodity. Complainant has failed to explain how the two analytic reports in respect of same counterpart of the sample commodity are divergent to such an extent. Thereby relying upon Kashi Nath versus State (supra), I am of the considered view that the sample was not representative as to why divergent reports have been given by two Analysts.
19. In view of the above discussion and reasons, I am of the considered opinion that a representative sample was not taken by the Food Inspector and the complainant has failed to prove its case against the accused persons. In result, complaint stands dismissed and all the accused are acquitted. Bail bonds stand cancelled. Sureties discharged. File be consigned to Record Room.
Announced in the open court. ( S.K. MALHOTRA ) Dated: 28.01.2010 ACMM-II/NEW DELHI.