Delhi District Court
Additional Sessions Judge-01 : New ... vs The State (Delhi Administration) on 12 April, 2012
-1-
IN THE COURT OF MS. NEENA BANSAL KRISHNA :
ADDITIONAL SESSIONS JUDGE-01 : NEW DELHI
In re :
CA No. 17/12
1 Ashwani Kumar
S/o Sh. Moti Ram
M/s Sunpac Oils Ltd.
A-1118, Industrial Area (RIICO)
Phase-III, Bhiwadi, Rajasthan.
Also at :-
R/o Vill Rohal,
PO Jhandutta, Distt. Bilaspur,
Himachal Pradesh.
2 M/s Sunpac Oils Ltd.
A-1118, Industrial Area (RIICO)
Phase-III, Bhiwadi,
Rajasthan ..... Petitioners
versus
The State (Delhi Administration)
P.F.A Deptt., A-20, Lawrence Road,
Indl. Area, Delhi. ..... Respondent
Date of institution of the appeal : 15.03.2012
Date of reserving judgment/order : 09.04.2012
Date of judgment / order : 12.04.2012
JUDGEMENT :
1. This appeal u/s 374 Code of Criminal Procedure has been preferred against the judgment dated 13.02.2012 and CA No. 17/12 Page No. 1 of 9 -2- order on sentence dated 25.02.2012 of Shri Raghubir Singh, Ld. ACMM-II, New Delhi, in complaint case no. 11/99, vide which the appellants have been convicted for offences punishable u/s 16 (1A) r/w Section 7 of Prevention of Food Adulteration Act, 1954 (hereinafter referred to as the Act ) and sentenced Ashwani Kumar to undergo simple imprisonment for two years and to pay a fine of Rs.15,000/-, in default to undergo further simple imprisonment for 10 days; And sentencing M/s Sunpac Oils Ltd. for a fine of Rs.1,50,000/-.
2. The facts as contained in the complaint are that on 01.09.1998 at about 03.00 p.m., Food Inspector P. J. Khatri purchased three originally sealed polybags of one liter each of "Vanaspati (Rath Brand)", from Sh. Prakash Chand from his shop M/s Prakash Store, 4519, Raigarpura, Karol Bagh, Delhi, where he was conducting his business of food articles. The three polybags were separately packed, fastened and sealed after being put in three clean jars as per PFA Act and Rules. The documents were prepared and one sample was sent to Public Analyst, who opined that the sample did not conform to the standards laid down under Item No. A.19 of Appendix 'B' of PFA Rules, 1955 because sample showed the presence of argemone oil. The vendor Prakash Chand revealed that he is the sole proprietor of M/s Prakash Store and used to purchase the sample commodity from M/s Shakti Traders, which was a partnership concern having its partners Sh. Tirlok Nath and Sh. Sudhir Kumar, though, it was Tirlok Nath, who was found responsible for day to day activities of CA No. 17/12 Page No. 2 of 9 -3- the firm concerned. M/s Shakti Shakti Traders had purchased the sample commodity from M/s Siel Foods & Fertilizer Industries, of which Sh. Ajay Tandon, Sr. Manager (Production) was the person in-charge and responsible for the Unit. The sample commodity had been supplied by M/s Sunpac Oil Ltd. M/s Siel Food and Fertilizers Industries, of which appellant Ashwani Kumar, Chemist was in-charge and responsible for the company. After obtaining the consent u/s 20 of the Act from the Director, PFA, the complaint was filed in the Court against all the accused persons.
3. The accused were summoned vide order dated 21.05.1999 and accused M/s Sunpac Oil Ltd. opted to exercise his right u/s 13 (2) of the Act. The second sample was sent to the Director, CFL, who vide his certificate dated 04.08.1999 opined that the sample of "Vanaspati (Rath Brand)" was adulterated. The accused no. 1 Prakash Chand, thereafter, moved an application u/s 294 Cr.PC and on the basis of replies filed by the accused no. 6 and 7, the accused no. 1 to 5 were discharged vide order dated 12.09.2001 and the trial was continued only against M/s Sunpac Oils Ltd. and its Manager Ashwani Kumar.
4. The charges for the violation of provisions of S.2 (ia)(a)(b)(c)(h) & (l) of the Act of 1954 punishable u/s 16 (1A) r/w Section 7 of PFA Act was framed upon the accused vide order dated 15.12.2009, to which they pleaded not guilty and claimed trial.
CA No. 17/12 Page No. 3 of 9 -4-5. In support of its case prosecution examined two witnesses namely PW1 Sh. P. N. Khatri, Food Inspector and PW2 Sh. Lal Singh, the then SDM/LHA.
6. The accused in his statement u/s 313 Cr.PC pleaded innocence and opted to lead defence evidence but failed to do so and same was finally closed vide order dated 26.11.2010.
7. Ld. MM in view of the report of Director, CFL, concluded that the sample was shown to be adulterated with "argemone oil" and accordingly the accused was held guilty.
8. Aggrieved by the said conviction and sentence, the present appeal has been filed.
9. The ld. Special PP for the State in his arguments has submitted that "argemone oil" is per se injurious to health and its presence is enough to establish that the sample was adulterated. Written submissions have also been filed on behalf of the State, wherein it is stated that as per Item No. A. 19 Appendix - B of the PFA Rules the Vanaspati was not to contain any harmful vegetable oil. According to Section 2 (a) of the Act if the sample of the food was found to be not of the nature, substance or quality demanded by the purchaser then the said sample would not adulterated.
10. Ld. Special PP has placed reliance on "Jagdish Prasad & Anr. v. State of UP, AIR Supreme Court 1539", where it was observed that when both the Courts below had given concurrent finding of the sample of curd being adulterated, there was no ground for the Supreme Court to CA No. 17/12 Page No. 4 of 9 -5- interfere. However, this case has no relevance to the facts of the present case.
11. The second judgment relied upon by the Ld. Special PP is "Calcutta Municipal Corporation v. Pawan Kumar Saraf & Anr., AIR 1999 SC 738", which was in respect fo Asafoetida and again the said judgment was in respect of adulteration of Asafoetida and was on different facts and not applicable to the present case.
12. The main arguments addressed on behalf of the appellants are that both the Public Analyst report and the Director, CFL report have reported the same to be adulterated on account of the presence of Argemone Oil. However, the notification banning the presence of Argemone Oil in Rath Vanaspati came only on 11.12.2001, while, the sample in the present case was taken on 01.09.1998 on which date the said standard was not in existence. Furthermore, no percentage of Argemone Oil has been given in both the reports. As per "Modi's Medical Jurisprudence and Toxicology", about 1% of Argemone Oil as an adulterant is necessary to produce clinical epidemic dropsy. In fact, in small percentage of Argemone Oil is used in medicines and per se presence of Argemone Oil is not injurious to health and thus, it cannot be said that the sample was adulterated. Furthermore, the TLC test as prescribed by DGHS was not in existence till 16.09.1998, but it was paper chromatography test which was being used to detect the presence of Argemone Oil. However, it has been held consistently that the paper chromatography CA No. 17/12 Page No. 5 of 9 -6- test is not a sure test and thus, it cannot be relied upon for detection of Argemone Oil. It was thus, argued that the appellants are entitled to be acquitted.
13. I have heard the arguments and have perused the record and the evidence led therein. My observations are as under :
14. The standard for Vanaspati has been laid down in Item No. A.19 of the PFA Rules, 1955. Vanaspati means any refined edible vegetable oil or oils subjected to a process of Hydrogenation in any form. It shall be prepared by Hydrogenation from ground-nut oil, cotton-seed oil and se same oil or mixture thereof or any other harmless vegetable oils allowed by the Government for this purpose.
15. It is not in dispute that the sample of the oil was taken by the Inspector on 01.09.1998 and in both the Public Analyst report and the Director, CFL report the Argemone Oil has been found to be present.
16. The other fact which needs to be highlighted is that absence of Argemone Oil from Rath Vanaspati as a standard came into force w.e.f. 11.12.2001 vide the Notification of the Central Government. Before the said date the standard prescribed under Item A.19 of PFA Rules did not prescribe that the presence of Argemone Oil should be negative. The sample has been taken in the year 1998 when the said prescribed standard was not in existence.
17. As per the prescribed standards, what is to be thus considered is (1) whether Argemone Oil qualified as an edible CA No. 17/12 Page No. 6 of 9 -7- vegetable oil or (2) any harmless vegetable oil. In Modi's Medical Jurisprudence and Toxicology it has been provided that about 1% of Argemone Oil as an adulterant is necessary to produce clinical epidemic dropsy. It is, therefore, necessary that percentage of Argemone Oil should have been indicated in the report to assess if its presence was injuries or harmful.
18. This aspect was analyzed by Hon'ble Delhi High Court in the case of "Khushi Ram v. The State and Anr., 1984 (II) FAC 256". In Khushi Ram's case sample was of "Bari Ilaichi" and the sample was held to be adulterated on account of presence of mineral oil as reported by the Public Analyst as the standard for "Bari Ilaichi" as provided at A. 05.04.02 specified that article should be free from added colouring matter. It was observed that though in the report of the Director, test for mineral oil was stated to be positive but it nowhere gave the quantity, weight or proportion by way of percentage of the mineral oil present in the sample "Bari Ilaichi". In the absence of quantity, weight and proportion, it was possible that the presence of mineral oil in the sample may be just negligible so as to cause no prejudice to the purchaser as contemplated in Section 2 (ia) (a) of the Act nor was there any evidence whatsoever to show that the presence of mineral oil in the sample could affect injuriously the nature, substance or quality of the sample of "Bari Ilaichi" as contemplated in Section 2(ia) (b) of the Act. It was, therefore, held that in the absence of any evidence in regard to the prejudice or injurious affect of the presence of mineral oil on CA No. 17/12 Page No. 7 of 9 -8- the sample, the petitioner was entitled to be exonerated.
19. The Khushi Ram's case was relied upon in recent judgment by Hon'ble Delhi High Court in the matter of "State v. Dwarka Dass, 2007 (1) FAC 229". It was a case in regard to the presence of mineral oil in the sample of "Kali Mirchi". After making a reference to the case of Khushi Ram and observing that there was no evidence to show the prejudice or the injury that could be caused to the purchaser on account of presence of mineral oil in "Kali Mirchi", the petitioner was acquitted.
20. It is, therefore, evident from the afore mentioned cases that in order to hold the presence of Argemone Oil to be an adulterant its percentage had to be established to determine if it was injurious to health or harmful. Since no said percentage has been specified and the Notification in regard to the absence of Argemone Oil has come into existence on 11.12.2001, simplicitor presence of Argemone Oil cannot be in itself sufficient to held that the sample was adulterated.
21. The State has, thus, not been able to establish that simplicitor presence of "argemone oil" without even its percentage having been specified is injurious or his violative of provisions under the PFA Act.
22. In view of the above discussion, the appeal is hereby allowed. Conviction is hereby set aside and the appellants are acquitted. Bail-bonds and surety bonds stand discharged.
CA No. 17/12 Page No. 8 of 9 -9-23. Trial Court Record be sent back alongwith the copy of this order.
24. Appeal file be consigned to the Record Room. Announced in the open Court on this 12th Day of April,2012.
(Neena Bansal Krishna) ASJ-01/PHC/New Delhi CA No. 17/12 Page No. 9 of 9