Delhi District Court
R/O H. No. 2-A vs The State on 16 May, 2016
1
IN THE COURT OF SH. RAKESH PANDIT,
ASJ-01, NEW DELHI DISTRICT, PATIALA HOUSE COURTS, NEW DELHI
CA No. 15/16
Sh. Pankaj Aggarwal
S/o Sh. Khem Chand
M/s Goel Store,
Shop No. 13, Hanuman Mandir,
Sector-4, Pushp Vihar, Saket,
New Delhi.
R/o H. No. 2-A, Tigri Village,
New Delhi. ....Appellant
Vs.
The State
Govt. Of NCT of Delhi
Department of PFA .... Respondent
Date of receiving of Appeal : 01.02.2016
Date of arguments : 21.04.2016
Date of judgment : 16.05.2016
JUDGMENT
1 By this judgment I will dispose of appeal u/sec.374 Cr.PC. filed on behalf of convict Pankaj Aggarwal against the judgment dated 12.05.2014 and order on sentence dated 21.05.2014 passed by Sh. Gaurav Rao, Ld. ACMM-II, Patiala House Court, New Delhi.
2 The brief facts of the case as per record and from trial court CA No. 15/16 Pankaj Aggarwal Vs. State page 1 of 6 2 record are that accused is running an establishment namely M/s Goel Store, Shop No. 13, Hanuman Mandir, Sector-4, Pushp Vihar, Saket, New Delhi. On 26.02.2005 at about 6.00 p.m. Food Inspector Sh. B. P. Saroha visited the said place and purchased 1500 grams of "Dal Arhar" from accused. FI was accompanied with SDM/LHA Sh. Manish Garg. The said Arhar Dal was purchased for the purposes of analysis under PFA Act. The same sample was divided into three parts, packed as per Rules of PFA. Panchanama was prepared. One sample was sent for analysis to Public Analyst. As per the report of Analyst, sample did not confirm to the standard because "The sample is adulterated because it is coloured with synthetic colouring matter viz. Tartrazine."
3 As the sample was failed, prosecution was launched by Food Inspector by filing complaint dated 06.07.2005 with the court. Accused was summoned. He has exercised his right u/sec.13(2) PFA Act to get the sample analyzed by CFL. CFL reported "I am of the opinion that the sample bearing no. 72/LHA/12285 does not conform to standards of Dal Arhar as per PFA Rules, 1955 (Synthetic colour Tartrazine detected).
4 Charge was framed against accused u/sec.2(ia) (a) (j) (m) read with sec.7 of PFA Act, 1954 punishable u/sec.16(1A) of PFA Act.
5 After trial, vide judgment dated 12.05.2014 accused was convicted for offence u/sec.16(1A) of PFA Act and vide order on sentence dated 21.05.2014 accused was directed to undergo simple imprisonment for a period of 18 months and fine of Rs.10,000/- and in default of payment of fine SI of 60 days.
CA No. 15/16 Pankaj Aggarwal Vs. State page 2 of 6 3 6 In this appeal, the accused has assailed the judgment on the following grounds:-
(i) Non-compliance of Sec.10(7) of PFA Act and Rule i.e. independent witnesses were not joined.
(ii) There is variation in different reports so the sample was not properly homogenized.
(iii) No percentage of colour mentioned.
(iv) Paper chromatography test is not a reliable test.
(v) Non-compliance of Rule 14 of PFA Rules i.e. the bottles, jhawa, polythene were not made clean and dried at the spot by the food inspector or any other official.
7 No reply was filed by respondent/state and the matter was argued orally.
8 I have gone through the record, Trial Court record and have heard the submissions of Ld. counsel for appellant and Ld. SPP for State.
9 It is argued by counsel for appellant that no public witness was present in the proceedings nor efforts were made to join any public witness. As far as this argument is concerned, the same argument was raised before the Ld. Trial Court. The same was dealt by the trial court from para 18 to 24 of the judgment. As far as opinion/finding of the trial court regarding this argument is concerned, I do not find any infirmity in those findings and the same are upheld and the arguments regarding this fact does not find any force and thus rejected.
10 It is further stated that there is variation in the report of PA and CFL and due to that reason benefit goes in favour of the accused. This CA No. 15/16 Pankaj Aggarwal Vs. State page 3 of 6 4 line of argument was done before the trial court and was dealt in para 54 to 86 of the judgment. I do not want to differ from the reasoning given by the trial court and thus the same is upheld.
11 It is further argued that there is no mentioning regarding the percentage of colour in the sample and due to that reason the reports cannot be relied. As far as this argument is concerned, the same is dealt by trial court in the judgment in para 99. I do not find any other opinion than that given by the trial court and thus the arguments addressed by Ld. counsel for appellant in this regard are rejected and the reasoning given by the trial court is upheld.
12 It is further argued that both the scientists that Public Analyst as well as at CFL had used to detect colour by way of Paper Chromatography Test and the same is not a reliable test for detecting colour in food articles. This leg of arguments was also done before the trial court and are being dealt by it in para 98. I do not find any other opinion than that given by the trial court and thus the arguments addressed by Ld. counsel for appellant in this regard are rejected and the reasoning given by the trial court is upheld.
13 As far as Rule 14 of PFA Rules are concerned, it spells out that the FI shall use dry bottles or containers for the purposes of sampling. However, this fact was elaborated further by Hon. Supreme Court in Varghese Vs. Food, 1989 (II) Prevention of Food Adulteration Cases, 236 stating that "it must be the endeavour of the FI to use clean and dry implements in sampling the articles of food. If unhygienic methods are adopted, it will effect the result of analysis. So, the Hon. Supreme Court CA No. 15/16 Pankaj Aggarwal Vs. State page 4 of 6 5 use the word "implements" instead of only "dry and clean bottles/containers". Similarly, in other judgments, i.e. State of Haryana Vs. Kishan Kumar CLT 559, it was observed that the prosecution had not stated that the "weighing scale" was clean. Similarly, in other judgments, like Sardar Mal Jain, 1996 (2) Prevention of Food Adulteration Cases, 203, it was stated that the newspaper on which the Barfi was weighed was not clean. Similarly, in Shashi Kant Vs. State of UP, 1983 (1) Prevention of Food Adulteration Cases 90, it was observed that the "bhagona" was not proved to be clean and dry.
14 So, accordingly, it can be said that the law which can be crystallized from various judgments of Hon. High Courts as well as Hon. Supreme Court is that if in evidence, the prosecution states that the sample commodity had touched a surface of an "implement" or any other surface, it is the duty of the prosecution to prove beyond reasonable doubt that the said implement/surface was clean and dry and thus could not have added any impurity to the sample. However, it is not the law that the FI shall spell out on which surfaces the sample commodity had touched while sampling. However, if he chooses to spell out the implements/surfaces with which the sample commodity came into contact/touch, the same must be proved as clean and dry.
15 In the present case, neither of the witnesses i.e. PW1, PW2 and PW3 had stated anything about the instrument on which the sample commodity was weighed or the presence of envelop in their examination- in-chief. However, PW3 Sh. S. Massy, FA, in his examination-in-chief dated 03.07.2012 has stated that "750 gm was weighed in a Weighing Balance of the accused and then it was equally put into the sample CA No. 15/16 Pankaj Aggarwal Vs. State page 5 of 6 6 bottles. The Dal Arhar was weighed by putting it in an envelope, which was provided by the accused." Now no where prosecution had deposed that this weighing balance or envelop was clean and dry and free from any colour. Thus there is violation of Rule 14 of PFA Rules.
16 So, in these circumstances, the prosecution failed to prove the strict compliance u/sec.14 of PFA Rules.
17 So, the judgment and order on sentence of the trial court is reversed.
18 Accused Pankaj Aggarwal is acquitted of the charges u/sec.16(1A) read with sec.7 of PFA Act.
19 Bail Bond u/sec.437A Cr.P.C. furnished. Accepted for six months.
20 TCR be sent back with copy of the order.
21 File of appeal be consigned to Record Room.
ANNOUNCED In the open Court (RAKESH PANDIT)
today i.e. 16.05.2016 ASJ-01/New Delhi District
Patiala House Courts/New Delhi
CA No. 15/16 Pankaj Aggarwal Vs. State page 6 of 6
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CA No. 15/16
Pankaj Aggarwal Vs. Food Inspector
16.05.2016
Present: Sh. R. D. Goel counsel with appellant.
Sh. A. K. Mishra Ld. SPP for State.
Vide separate judgment the appeal filed by the appellant is disposed is allowed. Accused Pankaj Aggarwal is acquitted of the charges u/sec.16(1A) read with sec.7 of PFA Act.
TCR be sent back with copy of the order.
Bail Bond u/sec.437A Cr.P.C. furnished and accepted.
File of appeal be consigned to Record Room.
(Rakesh Pandit) ASJ-01/PHC/New Delhi District 16.05.2016 CA No. 15/16 Pankaj Aggarwal Vs. State page 7 of 6