Delhi District Court
19. In A Judgment Titled As Kanshi Nath vs . State, 2005(2) Fac 219, on 14 July, 2010
IN THE COURT OF SHRI SANJEEV KUMAR MALHOTRA,
ADDITIONAL CHIEF METROPOLITAN MAGISTRATE-II,
NEWDELHI
C.C. N0. 105/97
Local Health Authority,
Department of PFA
Govt of NCT of Delhi
A-20, Lawrence Road,
Indl. Area, Delhi-35
Versus
Shyam Lal Arora
S/o Sh. Ganesh Dass Arora
M/s Arora Drinks Products,
DLF 6/10, Moti Nagar,
New Delhi-15
R/o 7/4, Ashok Nagar,
New Delhi-18.
JUDGMENT
Date of Institution : 13.10.97 Date of reserving judgment : 14.07.10 Dated of Pronouncement : 14.07.10 U/S: 2 (ia) (a)(b)(c) (f) (j) & (l) punishable U/s 16(1)(1A) read with Section 7 of the PFA Act The final order : Acquitted Brief statement of the reasons for such decision-
C.C. N0. 105/97 11. The present complaint is filed by the Delhi Administration through Local Health Authority, Shri M.R. Grover, against the above said accused, 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 13.6.97 at about 2:00 p.m. Food Inspector, Suniti Kumar Gupta purchased a sample of ' Carbonated Water (Sweetened) ', a food article, for analysis from Sh. Shyam Lal Arora S/o Sh. Ganesh Dass Arora at M/s Arora Drinks Products, DL, 6/10, Moti Nagar, New Delhi-15, where the said food article was found stored for sale and the above named Sh. Shyam Lal Arora was found conducting the business of the said store at the time of sampling. The sample consisted of 9 bottles of Sweetened Carbonated Water ( Kanchewali) of 200 ml, each having the identical label declaration. The Food Inspector divided the sample then and there into three equal parts & each part containing 3 originally sealed bottles of Sweetened Carbonated water ( Kancehwali). Each part/packet was separately packed, fastened, marked 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 was given to the accused Shyam Lal Arora and the price of the sample was also given to him. The Panchnama was prepared at the spot. All the documents prepared by Sh. Suniti Kumar Gutpa, Food Inspector were signed by the accused Shyam Lal Arora and the other witness Shri Rajesh Kumar, Food Inspector. Before starting the sample proceedings efforts were made to join the pubic witnesses but none came forward. The sample was taken under the supervisions of LHA. One counter C.C. N0. 105/97 2 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 analysed the sample on 15.07.97 and opined that the sample does not conform to the standards laid down under item No. A.01.01 of Appendix 'B' of the PFA Rules, 1955 because total plate count, coliform count and yeast & mould count are more than the maximum prescribed limit.
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. M.R. Grover, Local (Health Authority) to file the present complaint.
4. The accused is allegedly to have violated the provisions of Section 2 (ia)(a)(b)(c)(f)(h)(l) (m) punishable U/s 16(1)(1A) read with Section 7 of the PFA Act and Rules.
5. Summon of the case were served upon the accused and pursuant thereto he had appeared before the court. On 23.10.97, accused Shyam Lal Arora 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.14-4/97 C.C. N0. 105/97 3 (Pt.1)-504 dated 01.12.97 and opined that the sample of Sweetened Carbonated Water is adulterated.
6. Charge for contravention of provision of Section 2 (ia) (a)(b)(c) (f) (j) &
(l) punishable U/s 16(1)(1A) read with Section 7 of the PFA Act was framed against the accused on 16.4.09 to which he pleaded not guilty.
7. In support of its case, complainant examined PW-1 Sh. M.R. Grover, Retd, LHA & PW-2 F.I. Suniti Kumar Gupta.
8. Statement of accused was recorded under Section 313 Cr.P.C on 06.02.10 wherein he has controverted and rebutted the entire evidence against him while submitting that he is innocent. Accused preferred to lead evidence in his defence but despite opportunity, he failed to lead evidence in his defence and finally his DE was closed on 07.04.10.
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)(b) of PFA Act, if the article contains any other substance which affects, or if the article is so processed as to affect, injuriously the nature, substance or quality thereof.
C.C. N0. 105/97 411.As per Section 2(ia)(c) of PFA Act, if any inferior or cheaper substance has been substituted wholly or in part for the article so as to affect injuriously the nature, substance or quality thereof.
12. As per Section 2 (ia) (f) of PFA Act, if the article consists wholly or in part of any filthy, putrid, rotten, decomposed or diseased animal or vegetable substance or is insect-infested or is otherwise unfit for human consumption.
13. As per Section 2 (ia)(j) of PFA Act, if any colouring matter other than that prescribed in respect thereof is present in the article, or if the amounts of the prescribed colouring matter which is present in the article are not within the prescribed limits of variability.
14. 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.
15. 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 or misbranded food is either manufactured for sale or stored or sold or C.C. N0. 105/97 5 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.
16.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 is liable to be convicted. Ld. Defence counsel for accused on the other hand, has vehemently argued that Food Inspector adopted the wrong procedure of sampling and in absence of batch number, sample should have been taken after opening the bottles. Ld. Defence counsel further argued that the sample was not representative as to why there is vast variation between two reports in respect of counterparts of same sample.
Whether the Food Inspector adopted wrong procedure of sampling.
17.Ld. Defence counsel argued that the Food Inspector adopted wrong procedure of sampling as in absence of batch number, sample should have been taken after opening the sample bottles and mixing the contents. On the other hand, Ld. SPP argued that the sample bottles were sealed bottles of sweetened carbonated water bearing identical label declaration, and as per Rule 22A of PFA Rules, similar sealed container having identical label, can be taken as such to be part of the sample. PW-2 F.I. C.C. N0. 105/97 6 Suniti Kumar Gupta confirmed in his cross-examination that all the bottles were having same identical label declaration and it was also informed to him by the vendor that all the bottles belonged to the same lot. PW-1 Sh. M.R. Grover, LHA under whose supervision, the sample was lifted , denied the suggestion as put by the Ld. Defence counsel that in absence of lot number, wrong method of lifting the sample was adopted and explained voluntarily that if the bottles would have been opened , the carbon dioxide would have been evaporated and it would not be a carbonated water. The purpose of giving batch number or lot number on the label of the sample commodity is to identify the food articles prepared at one time so that same can be removed from the market , if the situation demands so. I find force in the explanation given by PW-1 Sh. M.R. Grover, LHA that on opening the sample bottles, the nature of sample commodity would have been changed due to evaporation of carbon dioxide. Notice in form VI Ex.PW1/B on which the label of the sample commodity was reproduced by Food Inspector shows that all the bottles were bearing identical label. Therefore, I am of the considered opinion that the Food Inspector adopted the correct method for lifting the sample while taking the sealed bottles of carbonated water (sweetened) bearing identical label declaration as such in one counterpart.
Whether sample is representative:
18. Ld. SPP for the complainant has submitted that the sample is C.C. N0. 105/97 7 representative but the Ld. Counsel for the accused has submitted that the sample was not representative sample as there is vast variation between two reports in respect of counterparts of same sample. 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.
19. 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;-
''............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 C.C. N0. 105/97 8 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. ''
20. 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 find whether the sample was representative or not. In the present case, as per report of the Public Analyst dated 15.7.97 wherein the opinion given by the Public Analyst, Delhi was that the sample does not conform to the standard because total plate count, coliform count and yeast and mould count are more than the maximum prescribed limit and the result of the analysis of Public Analyst is as follows:-
Appearance - Orange coloured sample of carbonated water Coaltar dye identified -sunset yellow F.C.F and carmoisine ( 77 ppm) Sugar - 7.8% Total plate count - 71 colonies/ml Coliform count - 5 per 100 ml Yeast & mould count - 5 colories/ml
21. The second counterpart of the same sample was analysed by the Director, Central Food Laboratory, Calcutta dated 01.12.97 , the result of analysis of second counterpart of the sample commodity is as follows:-
C.C. N0. 105/97 9 Appearance - Yellow coloured
Coaltar dye identified - sunset yellow ( 35 ppm )
Sugar - 7.8%
Total plate count per ml - 510
Coliform count - Absent
Yeast & mould count - Absent.
22. There is vast variation between the analytic results of two Analysts in respect of counterpart of same sample. Public Analyst found the sample commodity non-conforming to standard as total plate count were found 71 colonies per ml and coliform , yeast and mould count were found 5 per hundred ml, while in the counterpart of same sample after a period of about five months, Director, CFL , found total plate count 510 per ml and caliform yeast and mould count were found absent. Further, Public Analyst found the physical appearance of the sample commodity as orange coloured sample while the Director, CFL found the same as yellow colour. Public Analyst found two colours while the Director, CFL found only one colour in the counterpart of the same sample. No explanation has come on record on behalf of the complainant in respect of these variations between two reports. The defence as taken by the accused is more appealable that a representative sample was not lifted as to why one Analyst found total plate count 71 colonies per ml while the Director, CFL found total plate count 510 per ml in the counterpart of the same sample. . Thereby relying upon Kanshi Nath versus State (supra), I am of the considered view that the sample was not representative.
C.C. N0. 105/97 1023. In view of the above reasons and discussions, I am of the considered opinion that the complainant has failed to prove that a representative sample was taken. In result, complaint stands dismissed and accused stands acquitted of the charge. Bail bond stands cancelled. Surety discharged. File be consigned to the record room.
Announced in the open court. ( S.K. MALHOTRA )
Dated: 14.07.2010 ACMM-II/NEW DELHI.
C.C. N0. 105/97 11