Delhi District Court
Da vs Megh Raj on 23 January, 2010
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IN THE COURT OF SHRI SANJEEV KUMAR MALHOTRA,
ADDITIONAL CHIEF METROPOLITAN MAGISTRATE-II,
NEWDELHI
C.C. NO. 299/05
DA Versus Megh Raj
U/s 7/16 of the Prevention of Food Adulteration Act, 1954
JUDGMENT
a. The Serial number of the case : 299/05 b. The date of the commission of the offence : 20.09.05 c. The name of the Complainant, if any : F.I. Virender Singh d. The name of the accused and his parentage : Megh Raj S/o Late Sh. Kishan, Vendor-
cum-Proprietor of M/s Lovely Achar Murabba, 5747/5 Dev Nagar, Karol Bagh, New Delhi-05 e. The offence complained of or proved : u/s 2 (ia) (a) (b )(f) & (m) punishable Section 16(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 : 23.12.2009 i. judgment announced on : 23.01.2010
Brief statement of the reasons for such decision-
1. The present complaint is filed by the Delhi Administration through Food Inspector Virender Singh against the accused, namely, Megh 2 Raj S/o Late Sh. Kishan, Vendor-cum-Proprietor of M/s Lovely Achar Murabba, 5747/5 Dev Nagar, Karol Bagh, New Delhi-05, 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 20.09.05 at about 6:30 p.m., Food Inspector, Virender Singh purchased a sample of 'Dal Chana', a food article for analysis from Sh. Megh Raj from the premises of M/s Lovely Achar Murabba, 5747/5 Dev Nagar, Karol Bagh, New Delhi- 05, where the said food article was found stored for sale and Sh. Megh Raj was found conducting the business of the said food article at the time of sampling. The sample consisted of approximate 1500 gms of ''Dal Chana'' taken from an open gunny bag, bearing no label declaration on it. The sample was taken under the supervision/direction of Sh. M.K. Sharma, SDM/LHA. The sample was taken afer properly mixing Dal Chana with the help of clean and dry Jhaba. The Food Inspector divided the sample into three equal parts then and there by putting into three clean and dry glass bottles. Each sample bottle was separately packed, fastened and sealed according to the PFA Act and Rules. The vendor's signatures were obtained on the LHA slip and wrapper of the sample bottles. Notice was given to Sh. Megh Raj and the prie of sample was also given to him vide vendor receipt dated 20.09.05. Panchnama too was prepared at the spot. All the documents prepared by Sh. Virender Singh, Food Inspector and were signed by the accused Megh Raj and the other witness Sh. Siya Ram, FA. Before starting sample proceedings efforts were made to join public witnesses but none came forward, as such Sh. Siya Ram, 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 3 intact condition. The Public Analyst analysed the sample on 13.10.05 and found that the sample is Adulterated because it contains 3 dead insects in whole sample.
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. Virender Singh, Food Inspector to file the present complaint.
4. The accused is allegedly to have violated the provisions of Section 2 (ia)(a)(b)(f) & (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 pursuant thereto he had appeared before the court. Charge for contravention of provision of Section 2 (ia) (a) (b )(f) & (m) punishable Section 16(1A) read with Section 7 of the PFA Act was framed against the accused separately on 1.4.08 to which he pleaded not guilty.
6. In support of its case, complainant examined PW-1 Sh. M.K. Sharma, SDM/LHA ; PW-2 F.I. Virender Singh & PW-3 F.A. Siya Ram.
7.Statement of accused was recorded on 23.10.09 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.
48. 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.
9.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.
10. 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.
11. 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 constituents are present in quantities not within the prescribed limits of variability but which does not render it injurious to health.
12. 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.
5ARGUMENTS AND FINDINGS.
13.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 are liable to be convicted. Ld. Defence counsel for accused, on the other hand, has vehemently argued that no insects were found by the Food Inspector at the time of sampling and presence of three dead insects by the Public Analyst was due to subsequent development as egg can hatch at any moment.
Report of Public Analyst.
14. In the present case, report of the Public Analyst dated 13.10.05 Ex.PW1/F and as per the opinion given by the Pubic Analyst, the sample of Dal Chana was adulterated because it contained three dead insects in whole sample. It is pertinent to mention over here that Public Analyst has not opined that the sample was insect-infested or injurious to health.
15. The main contention of the Ld. Defence counsel is that no insects were found by the Food Inspector at the time of sampling and the presence of three dead insects in whole sample of Dal Chana was a subsequent development as eggs of the insects usually floats in the air and an egg can hatch at any moment.
16. PW-1 Sh. M.K. Sharma under whose supervision, the sample was lifted, confirmed in his cross-examination that at the time of sampling, no abnormality was observed with the naked eyes and further confirmed 6 that it took about one hour in completing the sample proceedings and no insects were observed while weighing and putting the sample of Dal Chana in the sample bottles. PW-2 F.I. Virender Singh also confirmed that insects were not observed by him with naked eyes at the time of sampling and to a specific question as put by the Ld. Defence counsel , PW-2 replied that he cannot comment if during the period of 20-25 days , there would be a subsequent growth of insects and natural death.
17. In a Criminal Appeal No. 158/1988 titled as State Vs Jehmat Mal, wherein it is held by Hon'ble Mr. Justice S.N. Dhingra, High Court of Delhi as under:-
''Law also permits foreign matters up to one percent out of which 0.10% can be impurities of animal origin. Thus, in food grains presence of impurities of animal origin like Rodent excreta are not ruled out and mere presence of Rodent excreta the food grain can be called as adulterated food grain unless the quantity exceeds the limit provided by law. In the present case 01 full Rodent excreta or 08 pieces of small Rodent excreta in 300 gms by no imagination can be said that exceeding 0.1 percent of 300 gms. Similarly presence pf 07 living and 15 dead insects is natural as the law recognizes presence of weevilled grains which means those grains whose kernels are wholly or partially bored by grains. If insects bore the kernels, many a time insects are very likely to be present in kernel and keep moving in and out of the food grains. The presence of living or dead insects is not adulteration unless the quantity of insects infested grains exceeds the prescribed limit. It was not the case of prosecution that the percentage of insect infested food grains was more than the prescribed quantity. I find that the Trial Court was justified in acquitting the accused there is no force in the appeal. The appeal is hereby dismissed.'' 7
18. In an authority reported as State Vs. Anil Kumar Sodhi & Anothers , 2009 (2) JCC 904, it was held by the Hon'ble Delhi High Court, as under:-.
'' Prevention of Food Adulteration Act, 1954- Secs 7 & 16
- Appeal against acquittal-Metropolitan Magistrate convicted the accused/respondent- In appeal Sessions Judge acquitted the accused/respondent- Hence this appeal- Food Inspector visited the firm of respondent and purchased 600 gms Atta- Sample was sent to P.A. Delhi for analysis- P.A analysed the sample and found Atta was adulterated because 3 living and 3 insects were found- A.D.J held that since Atta, is standardised commodity and the standards have been complied with, it cannot be said that food article was adulterated- And observed that it was not a case of adulteration- Finding of insects does not mean that it had been deliberately done by the respondent to increase the value or down grade the quality of the food- As per report of P.A. It is also found standard of Atta was not below the quality which was required-Presence of insects was only an incident which can occur due to open storage- Appeal dismissed.''
19. In an authority reported as 1980 (1) PFA Cases 272 titled as NDMC Vs. Chaman Lal and the State and it is held as under:-
'' ............. there can be no manner of doubt that the presence of three living insects in the counter part of the sample weighing 250 gms which was sent to the Public Analyst can by no stretch of reasoning be called to be insect-infested. Certainly, it cannot be said to have been swarmed by insects. The number of insects 8 present was by no means large. Hence, looking from this angle the testimony of the Public Analyst was rightly discarded by the learned Magistrate as being merely ipse-dixit. To sum up , therefore, there is no merit in this revision petition. It is accordingly dismissed.''
20. In an authority reported as 1985 (2) C.L.R. 483, it was held by the Hon'ble Supreme Court as under:-
(c) Insect-infested Connotation of ' Insect' and 'worm' are distinct from each other- Mere presence of 9 living meal worms in an article of food held to be insufficient to render the article adulterated in terms of S.2 (1)(f) of Prevention of Food Adulteration Act, 1954.''
21. Reverting back to the facts of the present as no insects were found by the Food Inspector at the time of sampling and weevilled grains were found only 0.01% against maximum 3% as provided in the standard of 'Dal Chana' in item No. A.18.06.12 of Appendix 'B' of PFA Rules. Therefore, relying upon the law as discussed above, I am of the considered opinion that mere presence of three dead insects does not amount to adulteration. In result, complaint stands dismissed and the accused is acquitted. Bail bond stands cancelled. Surety discharged. File be consigned to the record room.
Announced in the open court. ( S.K. MALHOTRA )
Dated: 23.01.2010 ACMM-II/NEW DELHI.
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