Delhi District Court
Da vs Anil Kumar on 18 May, 2010
1
IN THE COURT OF SHRI SANJEEV KUMAR MALHOTRA,
ADDITIONAL CHIEF METROPOLITAN MAGISTRATE-II,
NEWDELHI
C.C. NO. 222/93
DA Versus Anil Kumar
U/s 7/16 of the Prevention of Food Adulteration Act, 1954
JUDGMENT
a. The Serial number of the case : 222/93 b. The date of the commission of the offence : 29.7.93 c. The name of the Complainant, if any : LHA R.K. Ahuja d. The name of the accused and his parentage :Anil Kumar S/o Sh.
Raj Kumar , M/s Bansal Store, 64, Sawan Park Extension, Ashok Vihar, Phase III, Delhi.
e. The offence complained of or proved : u/s 2 (ia)(a) (m)(f)
(h) of PFA Act punishable under Section 16 (1) (1A) 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 :05.05.2010 i. judgment announced on :18.05.2010
Brief statement of the reasons for such decision-
1. The present complaint is filed by the Delhi Administration through 2 Local Heath Authority Sh. R.K. Ahuja 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 29.7.93 at about 2.15 p.m., Food Inspector, Anil Kumar Dhir purchased a sample of 'Maida' a food article, for analysis from Anil Kumar S/o Sh. Raj Kumar at M/s Bansal Store, 64, Sawan Park Extension, Ashok Vihar, Phase III, Delhi, where the said food article was found stored for sale and Anil Kumar was found conducting the business of the store/shop at the time of sampling. The sample was taken from an open gunny bag having label declaration. The sample was taken after proper mixing with the help of clean and dry Jhaba. The Food Inspector divided the sample then and there into three equal parts by putting them in separate clean and dry bottles. Each bottle containing the sample 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 Sh. Anil Kumar and the price of the sample was also given to him. The Panchnama too was prepared at the spot. All the documents prepared by Sh. Anil Kumar Dhir, Food Inspector were signed by the accused Anil Kumar and the other witness Sh. V.P.S. Chaudhary, Food Inspector. Before starting the sample proceedings efforts were made to join the pubic witnesses but none came forward. The sample was taken under supervision/direction Sh. R.K. Ahuja , LHA. One counter part of the sample was sent to the Public Analyst, Delhi, in intact condition and two counter parts were deposited with the LHA in intact condition. The Public Analyst analysed the sample on 16.08.93 and opined 3 that the sample is adulterated because it is insect infested with a large number of insects.
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 has accorded consent under Section 20 of PFA Act for institution of the case and has authorised Sh. R.K. Ahuja, Local Health Authority to file the present complaint.
4. The accused is allegedly to have violated the provisions of Section 2 (ia)(a) (f) (h) punishable U/s 16(1)(1A) read with Section 7 of the PFA Act & Rules.
5. Summon of the case were served upon the accused and pursuant thereto he had appeared before the court. On 05.01.94, accused 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, Mysore vide Certificate No.30/PFA/94 dated 09.02.94 according to which , the sample does not conform to the standards laid down for Maida under the provisions of PFA Act and Rules thereof as (a) Moisture content exceeds the maximum specified limit of 14.0%. (b) Gluten content falls below the minimum specified limit of 7.5% on dry weight basis & ( c ) It is insect infested.
6. Charge for contravention of provision of Section 2 (ia)(a) (m)(f) (h) of PFA Act punishable under Section 16 (1) (1A) read with section 7 of the PFA Act was framed against the accused on 4 31.10.2000 to which he pleaded not guilty.
7. In support of its case, complainant examined PW-1 Sh. R.K. Ahuja, LHA; PW-2 F.I. A.K. Dhir & PW-3 F.I. V.P.S. Chaudhary.
8. Statement of accused was recorded under Section 313 Cr.P.C on 20.01.03 wherein he has controverted and rebutted the entire evidence against him while submitting that he is innocent and preferred to lead evidence in his defence examined Sh. D.R. Joshi as DW-1; Sh. Tota Ram as DW-2; Ct. Satish Kumar as DW-3 & ASI Bhim Singh as DW-4.
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 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.
11. 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.
12. As per Section 2 (ia)(h) of PFA Act, if the article contains any 5 poisonous or other ingredient which renders it injurious to health.
13. 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.
14.I have heard both the sides at length and have given my conscious thought and prolonged consideration to the material on record , written submissions, 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. On the other hand, Ld. Counsel for the accused has vehemently argued that the sample was not lifted bonafidely by the Food Inspector as two days before the sampling, accused had made a complaint against the Food Inspector for demanding illegal monthly bribe. Ld. Defence counsel further argued that bottles were not made clean and dry and sample was lifted in the season of mansoon and the presence of insects found by the Public Analyst was a subsequent growth. Ld. Defence counsel has also drawn my attention in respect of authorities reported as 2007 (4) JCC 3011; 1999 (2) FAC 201; 1999 (2) FAC 102; 1999 (2) FAC 343; 2005 (4) RCR ( Criminal ) Page 60; 2003 (3) RCR ( Criminal) Page 592 ; I-1984 (1) Crimes 188; 1972 PFA Cases 389; 1997 (1) PFA Cases 193.
6Bottles not clean and dry
15. Ld. Defence counsel strenuously argued that there is non- compliance of Rule 14 which enjoins upon the Food Inspector to use the clean and dry bottles. On the other hand, Ld. SPP argued that all the witnesses have specifically deposed that sample commodity was properly mixed with the help of a clean and dry Jhaba and the so purchased sample was equally divided into three parts by putting into three clean and dry bottles. Ld. SPP further argued that as the department used to provide clean and dry bottles in packed condition to the F.I there was no need for them to make the bottles again clean and dry at the spot. PW-3 F.I. V.P.S. Chudhary confirmed that the bottles were not cleaned at the spot. No suggestion was given to any of the complainant witnesses that the bottles were not already clean and dry. In the Panchnama Ex. PW1/C, it is mentioned that sample commodity was put into three clean and dry glass bottles. Even otherwise, in view of the judgment reported as State of M.P Versus Narayan, 1998(1) Prevention of Food Adulteration Cases, 183, it is clear that once it is mentioned in the complaint and deposed by the complainant's witnesses that the bottles are clean and dry and even if this fact is not mentioned in the Panchnama, there is nothing to doubt this part of the testimony of the witness. The complainant's witnesses have clearly deposed the fact that the sample was taken in clean and dry bottles and in the absence of any evidence to controvert this fact, I am of the opinion that the bottles which were used were clean and dry. The authorities as relied upon by the Ld. Defence counsel are not applicable in the facts and circumstances of the present case as in those cases, someone made clean the bottles but was not examined before the court. Therefore, I am of the opinion that in the present case , there was no violation of Rule 14 of PFA Act.
7Benefit of Warranty u/S 19 (2) of PFA Act.
16.Section 19 (2) of PFA Act provides that a vendor shall not be deemed to have committed an offence pertaining to the sale of any adulterated of misbranded article of food, if he proves that he purchased the article of food from any manufacturer, distributor or dealer with a written warranty in the prescribed form and the article of food while in his possession was properly stored and that he sold it in the same state as he purchased.
17.Ld. Counsel for accused vehemently argued that accused made endorsement on Ex.PW1/B at the spot that he purchased the sample commodity from M/s Bindra Trading Company , B-1743, Shastri Nagar, Delhi vide Bill No. 1973 dated 27.7.93 and specifically mentioned that no other bag of Maida is lying in his shop. PW-1 Sh. R.K. Ahuja, LHA confirmed that the vendor had handed over one Cash memo of the supplier pertaining to purchase of Maida from which the sample was taken by the FI. PW-1 further confirmed that the Bindra Trading Company had claimed that they did not deal in Vikram Brand of Maida, and further confirmed that afterwords, they did not serve any notice and take any action against manufacturing company. PW-1 further deposed that they had tried to seek clarification from M/s Bindra Trading Company through their F.I as to what particular brand of Maida was supplied under Bill Ex. PW1/DA but the M/s Bindra Trading Company could not reveal the name of any brand. It is a matter of record that M/s Bindra Trading Company sent a letter Ex.PW2/D to Food Inspector whereby they denied the supply of sealed or loose gunny bags of Maida of Vikram Roller Flour Mills Ltd. However, the Bill in question or supply of sealed gunny bags of different brand of Maida 8 to the firm of the vendor have not been denied by M/s Bindra Trading Company. It is a settled law that a vendor does not lose the benefit of warrant only on the ground that he was selling the commodity after opening the sealed bag. The vendor made endorsement at spot that he purchased the Maida vide Bill No. 1973 dated 27.7.93 from M/s Bindra Trading Company and except that no other gunny bag of Maida was lying in his shop. Therefore, I am of the considered opinion that the accused is also entitled for benefit of Bill. Ex.PW1/DA under Section 19 (2) of PFA Act.
Whether the lifting of sample from the shop of the accused was not bonafide.
18.The main contention of the Ld. Defence counsel is that the lifting of sample from the shop of the accused was not bonafide as before two days of sampling i.e on 27.7.93 , accused had made a complaint against the Food Inspector V.P.S. Chaudhary and F.I. A.K. Dhir that they were demanding illegal monthly bribe from him. Ld. Defence counsel further argued that although a case F.I.R. No. 41/93 was also registered agianst the Food Inspector under the Prevention of Corruption Act but as sanction to prosecute them was not granted by the competent authority, trial could not be initiated against them. Admittedly, the sample of Maida was lifted from accused by F.I. Anil Kumar Dhir on 29.7.93 under the supervision and direction of R.K. Ahuja and Food Inspector V.P.S. Chaudhary, also joined the sample proceedings as a witness. The defence as taken by the Ld. Counsel for the accused is that on 27.7.93, F.I. A.K. Dhir alongwith two-three Food Inspectors visited the shop of the accused and advised him to send them the illegal monthly gratification and on 29.7.93, they again repeated the demand and on refusal, they lifted the sample of Maida 9 from the shop of the accused. PW-3 F.I. V.P.S. Chaudhary also confirmed in his cross-examination that the accused had filed a complaint against the staff of PFA Department regarding harassment of his brother and an FIR was also lodged in the Anti Corruption Department. Accused examined himself as DW-3 and deposed that he made a complaint on 27.7.93 i.e Ex.DW5/1 to Lieutenant Governor of Delhi and forwarded the copy to Director, PFA, SHO Ashok Vihar and D.C.P. Anti Corruption despite that on 29.7.93 the sample was lifted from his shop. In his cross-examination by the Ld. SPP, DW-3 deposed that he did not give any complaint in PFA Department on 29.7.93 or later on that his signatures were obtained forcibly on the documents. I have gone through the complaint Ex.DW5/1 which is dated 27.7.93 received by the office of L.G. Delhi and SHO Ashok Vihar on 27.7.93. No explanation has come on record on behalf of the complainant as to how and why accused made complaint Ex.DW5/1 before two days of lifting of the sample against the members of the raiding team. It would have been a different case if accused had filed the complaint against them on the day of sampling or thereafter, which also supports the contention of the accused and creates a doubt that the lifting of sample on 29.7.93 was not bonafide.
Opinion of Director, CFL
19. On 05.01.94, accused 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, Mysore vide Certificate No.30/PFA/94 dated 09.02.94 according to which , the sample does not conform to the standards laid down for Maida under the provisions of PFA Act and Rules thereof as (a) Moisture content 10 exceeds the maximum specified limit of 14.0%. (b) Gluten content falls below the minimum specified limit of 7.5% on dry weight basis & ( c ) It is insect infested.
20. No doubt, the Certificate of Director, CFL shall supersede the report of the Public Analyst and shall be final and conclusive evidence of the facts stated therein.
21. The report of the Director, CFL shows that the physical appearance of the sample commodity was white coloured fine powder heavily infested with both live and dead insects identified as tribolium castaneum. PW-1 F.I. A.K. Dhir confirmed in his cross-examination that he had not noticed insects with the naked eyes at the time of sampling in Maida, therefore, the question arises that whether the sample commodity was insect-infested at the time of sampling or development of insects was due to subsequent growth.
22. In an authority reported as 2003 (3) RCR ( Criminal) Page 592 titled as State of Haryana Vs. Sant Lal, Punjab and Haryana High Court, wherein it is held as under:-
'' B. Prevention of Food Adulteration Act, 1954, Section 16 (1-A)- Sample of Maida- Report of Public Analyst that it contained 12 living meal worms- Sample was taken during monsoon season- With high concentration of humidity in the atmosphere possibility of meal worms developing during the transit period, could not be ruled out- Acquittal upheld, inter alia, on this ground.''
23. In an another authority reported as I-1984 (1) Crimes 188 titled as Jai Kumar Vs. The State of U.T Chandigarh, Punjab and Haryana 11 High Court, wherein it is held as under:-
'' Where from the statement of Food Inspector it appears that living insects were possible to be generated in a sample of wheat flour due to defect in sample lifting in rainy season and delay in sending sample for analysis, the accused will be entitled to benefit of doubt.''
24. In an authority reported as 1972 PFA Cases 389 titled as Shri Raghbir Sharan Vs. State , Hon'ble Delhi High Court , wherein it is held as under:-
''.... Held that it is possible for eggs or larva to be present in the basen without being visible to the naked eye and for these eggs or larva to grow into insects within a period of three days. The Public Analyst in his report has merely stated that the sample was insect-infested ( living insects), but has not given the percentage of insect-infestation. It is, therefore, possible that the insect-infestation found by the Public Analyst was not present in the sample when it was taken. (Para 5 )
25.In the present case, even according to the evidence of the Food Inspector, P.W.2, no insects were present when he purchased the sample of Maida from the accused on 29.7.1993 and that, as a matter of fact, he had not purchased the sample because of any suspicion that it was insect-infested. The Public Analyst in his report, Ex. PW1/F has opined that the sample is adulterated because it is insect-infested and eight living and one dead insects were found in 20 gms of sample when examined on 30.7.93. Although, the Director, CFL has not given the number of insects but found both live 12 and dead insects identified as tribolium castaneum. The presence of live insects by the Director, CFL on 9.2.94 i.e even after about seven months of the day sampling shows that air was passing through the sample bottles as to why insects were found live and multiplying. Moisture and Gluten contents were within prescribed limit when examined by Public Analyst. Gluten which is primarily sticking power of Atta fallen as per report of Director, CFL appears to be due to the reason that the sample was analysed by the Director, CFL after about seven months and also due to increase in moisture. Therefore, I am of the considered opinion that the sample bottles were not properly sealed and the presence of live insects in the sample of Maida found by the Public Analyst and the Director, CFL was a subsequent growth, as no insects were found by the Food Inspector at the time of sampling.
26. In view of the above reasons and discussions, I am of the considered view that the complainant has failed to prove its case against the accused beyond reasonable doubt. In result, accused is given benefit of doubt and 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:18.05.2010 ACMM-II/NEW DELHI.