Delhi District Court
Da vs Ved Prakash & Others on 29 March, 2010
1
IN THE COURT OF SHRI SANJEEV KUMAR MALHOTRA,
ADDITIONAL CHIEF METROPOLITAN MAGISTRATE-II,
NEWDELHI
C.C. NO. 20/07
DA Versus Ved Prakash & Others
U/s 7/16 of the Prevention of Food Adulteration Act, 1954
JUDGMENT
a. The Serial number of the case : 20/07 b. The date of the commission of the offence : 26.10.06 c. The name of the Complainant, if any : F.I. Bal Mukand d. The name of the accused and his parentage : (5) Narender Kapur S/o Late Sh. N.D. Kapur, M/s Cream Center Ice Cream Company 5- Double Storey Market, New Rajinder Nagar, New Delhi-60.
e. The offence complained of or proved : u/s 2 (ia)(a) & (m) punishable under Section 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 : 29.03.2010 i. judgment announced on : 29.03.2010
Brief statement of the reasons for such decision-
21. The present complaint is filed by the Delhi Administration through Food Inspector Bal Mukand against the above said accused alongwith accused No.1 Ved Prakash S/o Sh. Late Mela Ram, M/s R.K. & Co., A-17, Connaught Place, New Delhi; Accused No.2 Surinder Kumar Pahuja S/o Late Sh. Khairati Lal, M/s R.K. & Co., A-17, Connaught Place, New Delhi ; Harish Kumar Pahuja S/o Sh. Ved Prakash, M/s R.K. & Co., A-17, Connaught Place, New Delhi & accused No. 4 M/s R.K. & Co., A-17, Connaught Place, New Delhi ( all have been discharged by the Ld. Predecessor of this court vide order dated 25.8.08) 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 26.10.06 at about 3:00 p.m., Food Inspector, Bal Mukand purchased a sample of 'Ice Cream' , a food article for analysis from Sh. Ved Prakash S/o Sh. Late Mela Ram ( Since discharged) from the premises of M/s R.K. & Co, A-17, Connaught Place, New Delhi-1, where the said food article was found stored for sale and Sh. Ved Prakash was found conducting the business of the said food article at the time of sampling. The sample 900 gms Ice Cream taken ( two bricks each containing 450 gms baring label declaration as mentioned in Form VI). The Ice Cream brick removed from bricks with the help of clean and dry spoon in a clean and dry steel container and allowed to melt at room temperature and properly mixed with the help of same spoon. The sample was taken under the supervision/direction of Sh. I.D. Pandey, SDM/LHA. The Food Inspector divided the sample into three equal parts then and there by putting into three clean and dry glass bottles and added 36 drops of formalin with the help of clean and dry dropper in each 3 sample bottle. Each sample bottle was separately packed, fastened 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 in form VI was given to the accused Ved Prakash and the price of the sample was also paid to him vide vendor receipt dated 26.10.06. The Panchnama was prepared at the spot. All the documents prepared by Food Inspector were signed by the accused Ved Prakash and the other witness Shri S.N. Jindal, F.A. Before starting the sample proceedings efforts were made to join the pubic witnesses but none came forward, as such Sh. S.N. Jinal , F.A was joined as witness . One counter part of the sample was sent to the Public Analyst in intact condition and two counter parts were deposited with the SDM/LHA in intact condition. The Public Analyst analysed the sample on 08.11.06 and opined the sample does not conform to standard because milk fat is less than the prescribed minimum limit of 10%.
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. Bal Mukand, Food Inspector to file the present complaint.
4. The accused are allegedly to have violated the provisions of Section 2 (ia)(a) & (m) punishable U/s 16(1)(a) read with Section 7 of the PFA Act.
5. Summons of the case were served upon the accused persons and 4 pursuant thereto they had appeared before the court. On 17.02.07, accused Ved Prakash ( since discharged ) 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, Pune vide Certificate No.CFL/129/171/2007 dated 9.3.07 and found the sample does not conform to the standards of Ice-cream as per PFA Rules 1955.
6. Notice under Section 251 Cr.P.C for contravention of provision of Section 2 (ia)(a) & (m) punishable under Section 16(1)(a) read with section 7 of the PFA Act was framed against the accused No. 5 separately on 16.12.08 to which he pleaded not guilty.
7. In support of its case, complainant examined PW-1 Sh. I.D. Pandey, Deputy Director, UTCS; PW-2 F.I. Bal Mukand & PW-3 F.A. S.N. Jindal.
8. Statement of accused No.5 was recorded separately on 11.01.2010 under Section 313 Cr.P.C wherein he has controverted and rebutted the entire evidence against him while submitting that he is innocent. Accused preferred not to lead evidence in his defence.
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)(m) of PFA Act, an article of food is said 5 to be adulterated 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 does not render it injurious to health.
11. 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 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.
12.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, on the other hand, has vehemently argued that the Food Inspector adopted the wrong procedure of sampling by putting the ice cream in Patila and some fat remained stuck with the Patila due to which sample was found non-conforming to standard. Ld. Defence counsel further argued that the sample was not representative and drawn my attention in respect of authorities reported as 2007 (1) FAC 183; 2007 (1) FAC 186; 1989 (1) PFA Cases 333; 1982 (II) PFA Cases 133.
6Procedure of sampling
13.Ld. Defence counsel vehemently argued that the Food Inspector adopted the wrong procedure of lifting the sample of ice cream by putting the bricks of ice cream in a Patila and then mixing the same with the help of spoon. PW-1 Sh. I.D. Pandey, SDM/LHA under whose supervision the sample was lifted deposed that the ice cream bricks were removed from the wrapper and taken into a dry and clean steel container with the help of clean and dry spoon and allowed to melt at room temperature for about half hour. PW-2 F.I. Bal Mukand and PW-3 F.A S.N. Jindal confirmed in their cross- examination that the capacity of Patila was about 2 k.g. The defence as taken by the Ld. Defence counsel and put to the complainant witnesses was that some part of ice cream stuck into the Patila and some parts of the ice cream stuck to the wrapper of the ice cream while taking the sample. It is also mentioned in Notice in form VI Ex. PW1/B that two bricks of ice cream removed from wrapper with the help of clean and dry spoon in a clean and dry steel container and properly mixed with the help of same spoon in the same steel container. In an authority reported as 2007 (1) JCC 867, it was held by Hon'ble Mr. Justice Shiv Narayan Dhingra as under:-
'' ..... Sample of ice-cream /kulfi- The Food Inspector after taking several sticks/cups/pieces of bricks of ice cream together and putting them in a Patila ( a metallic utensil) and allowing them to melt in the Patiala-Then stirred the entire mass with the spoon and filled up the melted ice cream into three bottles and added preservative in each bottle at room temperature-Whether it would be a representative sample of ice cream which is sold to the customer-Held: No- Once the 7 ice cream gets melted, the lighter particles in that mass shall float over and the heavier particles shall have tendency to settle down-Fat being lighter will float at the top surface of the molten ice cream due to law of gravity and the heavier particles shall have tendency to settle down and go down-When such a mass of the melted ice cream is stirred, the part of fat will stick to the surface of the container due to the tendency of fat sticking to the surface and the some of the fat would be lost to the 'patila' when sample is taken out- This molten mass of ice cream, would, therefore, not be a representative sample of ice cream which is sold to the customers- Slight variations in the result of the samples and the minimum standard prescribed under the law, it can be safely said that the sample taken by the FI was not properly taken so as to make it a representative sample in case of ice cream /kulfi- The proper way of taking sample is to put directly the part of brick of ice cream or cup or stick of ice cream/kulfi into the sample bottle and allow the same to come to room temperature and then add preservative so that there is no loss of fat etc- Once loss of fat takes place due to faulty procedure of taking samples, the shopkeeper cannot be convicted. ''
14.Admittedly, in the present case, the Food Inspector removed the ice cream bricks from the wrapper with the help of clean and dry spoon in a clean and dry steel container and mixed the same with the help of same spoon. Relying upon the authority 2007 (1) JCC 867 ( Supra), I am of the considered opinion that the Food Inspector adopted the wrong procedure of sampling by putting the ice cream bricks into a steel container and then mixing it with the spoon.
8Whether sample is representative:
15.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 submitted that there is difference of more than .3% between the report of the Public Analyst and Report of Director, CFL, Pune which itself shows that the sample was not representative. 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.
16. 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 9 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. ''
17. 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 08.11.06 wherein the opinion given by the Public Analyst, Delhi was that the sample does not conform to the standard and the result of the Public Analyst was as follows:-
Milk fat - 8.23%
Total solids - 36.61 %
Protein - 3.85%
18. The second counterpart of the same sample was analysed by the Director, Central Food Laboratory, Pune dated 09.03.07 , the result of analysis of second counterpart of the sample commodity by the Director, CFL as under:-
Milk fat - 8.74%
Total solids - 36.47 %
10
Protein - 3.0%
19.The difference of analysis in respect of milk fat and protein in respect of sample of ice-cream by the report of two analysts are not within acceptable range of 0.3% . Thereby relying upon Kashi Nath versus State (supra), I am of the considered view that the sample was not representative due to which different report were given by two experts in respect of counterpart of the same sample.
20.In view of the above discussion and reasons, I am of the considered opinion that Food Inspector adopted wrong procedure for lifting the sample by putting ice cream bricks into a container and the difference of analytic values in respect of milk fat and protein contents shows that the sample was not representative, further the defence as taken by accused that some fat remained struck with container appears to be more appealable. In result, complaint stands dismissed and accused No.5 is acquitted. Bail bond stands cancelled. Surety discharged. File be consigned to Record Room.
Announced in the open court. ( S.K. MALHOTRA ) Dated:29.03.2010 ACMM-II/NEW DELHI.