Delhi District Court
Food Inspector vs . 1. Shri Pradeep Kumar Jain on 22 February, 2013
::1::
IN THE COURT OF SHRI MOHINDER VIRAT,
ADDITIONAL CHIEF METROPOLITAN MAGISTRATEII,
PATIALA HOUSE COURTS, NEW DELHI
C.C. No. 16/99
Food Inspector Vs. 1. Shri Pradeep Kumar Jain
Department of PFA S/o Shri R.C. Jain
Govt. of Delhi. M/s Kanodia Oil Agency,
1859, Khari Baoli,
Delhi6.
[Discharged v/o dt: 15.01.2001]
2. M/s Kanodia Oil Agency,
1859, Khari Baoli,
Delhi6.
[Discharged v/o dt: 15.01.2001]
3. M/s Delhi Kanodia Oil Mills,
2287, Kauria Pul, Delhi6.
Head Office:
M/s Jyoti Prasad Jagan Nath,
Naya Bans, Delhi.
4. Shri Bijay Kumar Sharma
S/o Shri S.N. Sharma
ProductioncumQuality Control
Officer, Delhi Kanodia Oil Mills,
2287, Kauria Pul, Delhi6.
[Declared P.O. v/o dt 06.07.2012]
CC No. 16/99
DA Vs. Pradeep Kumar Etc. Page 1 of 9
::2::
J U D G M E N T
Serial number of the case : 16/99 Date of the commission of the offence : 28.12.1998 Date of filing of the complaint :09.03.1999 Name of the Complainant, if any : Shri C.B. Boora, Food Inspector. Offence complained of or proved : S. 2 (ia)(a)(b)(c) (h) & (I) of PFA Act of 1954 punishable U/s 16 (1A) r/w S. 7 of the Act of 1954 Plea of the accused : Pleaded not guilty Final order :Acquittal. Arguments heard :22.02.2013. Judgment announced on :22.02.2013. Brief Statement of reasons for such decision
1. The present complaint has been filed on 09.03.1999 by the Food Inspector Shri C.B. Boora, against the above said accused persons. It is stated in the complaint that on 28.12.1998 at about 3:30 PM, the FI purchased a sample of Mustard Oil, a food article for analysis from accused Pradeep Kumar Jain Nominee of M/s Kanodia Oil Agency, 1859, Khari Baoli, Delhi6, where the accused was found conducting the business of the said food article at the time of sampling. The FI purchased 3x1 litre plastic bottles of Mustard Oil in originally sealed condition, bearing identical label declaration. The sample was taken under the CC No. 16/99 DA Vs. Pradeep Kumar Etc. Page 2 of 9 ::3::
supervision and direction of Shri G. Sudhakar, SDM / LHA (Sadar Bazar). The FI divided the sample commodity into three equal parts as such in originally sealed condition by putting it into three clean and dry bottles and each bottle containing the sample commodity was separately packed, fastened and sealed as per the requirements. The vendor's signature were obtained on the LHA slip and the wrapper of the sample counterparts as per requirements. Notice in Form VI, Panchnama etc. were also prepared at the spot by FI and got signed from the accused Pradeep Kumar Jain and other witness namely Shri S.K. Gupta, Food Inspector.
2. The complaint further runs to the effect that one counterpart of the sample was sent to the PA, Delhi in intact condition and two intact counterparts were deposited with the LHA. The PA analysed and opined that ' the sample does not conform to the standards laid down under item no. A.17.06 of Appendix 'B' of PFA Rules, 1955 because sample shows presence of Argemone oil'.
3. Further, it was revealed that accused Pradeep Kumar Jain was VendorcumProprietor of M/s Kanodia Oil Agency and was looking after the day to day conduct of the business of the said firm and as such he as well as M/s Kanodia Oil Agency were impleaded in this case. It was also CC No. 16/99 DA Vs. Pradeep Kumar Etc. Page 3 of 9 ::4::
revealed that the sample commodity was manufactured by M/s Delhi Kanodia Oil Mills, having its registered office at M/s Jyoti Prasad Jagan Nath, Naya Bans, Delhi, and accused Bijay Kumar was appointed its Nominee and as such he was looking after the day to day conduct of the business of the said manufacturing firm. Thereafter, the entire case file was sent to the Director PFA who accorded the requisite consent U/s 20 of the Act and consequent thereto the present complaint was filed.
4. The accused persons were summoned vide order dated 09.03.1999. On appearing accused no. 3 moved an application under section 13(2) of PFA Act to get anlayse the second counterpart of the sample from Central Food Laboratory and consequent thereto the second counterpart of the sample was sent for analysis to Central Food Laboratory, Calcutta. The Director CFL analysed the given sample counterpart and vide its Certificate dated 11.05.1999 gave his opinion to the effect that the sample of Mustard Oil is adulterated.
5. Charge 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 S. 7 of the Act of 1954 was framed against the contesting accused persons i.e. accused no. 3 & 4, to which they pleaded not guilty and claimed trial. CC No. 16/99 DA Vs. Pradeep Kumar Etc. Page 4 of 9
::5::
6. To bring home the guilt of the accused persons, the prosecution got examined three witnesses namely Shri C.B. Boora, Food Inspector (PW1), Shri G. Sudhakar, the then SDM / LHA (PW2) and Shri Sanjiv Kumar Gupta, Food Inspector (PW3).
7. Statements of contesting accused persons (i.e. accused no. 3 & 4) U/s 313 Cr. P.C. were recorded separately, whereby they wished to lead defence evidence.
8. One witness namely Shri S.K. Manocha, Asstt. Director, Food Research & Analysis Centre, FICCI was got examined on behalf of the defence side.
9. I have gone through the entire judicial record and heard the Ld. SPP for the Complainant as well as Ld. counsel for the accused.
10. First of all, it would be appropriate to discuss about the proceedings after the institution of this case. During the course of the trial, accused no. 1 & 2 were given the benefit of Warranty under section 19(2) of PFA Act 1954 and they were discharged vide order dated 15.01.2001. Later on, accused no. 4 was declared a proclaimed offender vide order dated CC No. 16/99 DA Vs. Pradeep Kumar Etc. Page 5 of 9 ::6::
06.07.2012. Thus, it is the accused no. 3. alone, who is facing trial.
11. On the basis of PA's Report dated 21.01.1999, the proceedings were initiated against the accused. The PA after analyzing the sample commodity had found the sample not conforming to the standards because it showed the presence of Argemone Oil. The second counterpart of the same sample, when anayzed there at CFLCalcutta, The Director CFL also gave his opinion to the effect that the sample is adulterated because it shows Argemone Oil positive.
12. During the course of arguments, the Ld. defence counsel confined his arguments regarding variations between the PA & CFL results and tried to create suspicion on the representative character of the sample sent to two different labs. He stated that the variations in this case are more than the variations limit of 0.3% (which is the prescribed limit of variations) and thus both the reports are not reliable. To fortify his arguments he placed reliance on the following case law:
i) State Vs. Rama Rattan Malhotra, 2012[2] FAC 398
ii) State Vs. Mahender Kumar & Ors 2008[1] FAC 177
iii) Kanshi Nath Vs. State 2005[2] FAC 219
13. On the other hand Ld. SPP for complainant has vehementally argued that the CFL Report superseds the PA's Report and having been CC No. 16/99 DA Vs. Pradeep Kumar Etc. Page 6 of 9 ::7::
so superseded, the report of PA could not, therefore, be relied upon.
14. The arguments as advanced by the Ld. SPP for the complainant has been considered by the Hon'ble Supreme Court in the case of MCD Vs. Ghisa Ram, AIR 1967 SC 970, wherein it was held that even after the certificate of CFL, it is open to the accused to show that in the facts of the given case and on the concrete objective grounds that the sample sent for analysis to the Director could not have been taken to be a representative sample of the article of food from which it is taken and if this contention is found to be correct, conviction passed on the certificate will not be sustainable.
15. This judgment has been followed by the Hon'ble High Court of Delhi in Kanshi Nath Vs. State, 2005(2) FAC 219 Delhi High Court, MCD Vs. Bishan Swaroop, 1972 FAC 273 Full Bench Delhi High Court and in Criminal Appeal No. 1158 (2007) vide judgment dated 08.09.2011.
16. In State Vs. Mahender Kumar & Ors (supra)again a reference was made to the case of Kanshi Nath and it was reiterated that if on comparison of the report of Public Analyst and the CFL unacceptable variations are shown in two samples then it cannot be said that the samples were representative and the accused would be entitled to an CC No. 16/99 DA Vs. Pradeep Kumar Etc. Page 7 of 9 ::8::
acquittal.
17. Recently in a case titled as State Vs. Rama Rattan Malhotra 2012 (2) FAC 398 Delhi High Court, the petition of the State seeking leave to appeal against the order of the acquittal of Ld. ASJ, New Delhi, was dismissed by holding that if in Public Analyst & CFL Certificates, there are more than 0.3% variations, it clearly implies that the sample was not representative.
18. it is true that both the experts have pointed out towards one point i.e. presence of Argemone Oil positive in sample counterparts analysed at two different labs, yet, the point of variations so raised by the Ld. defence counsel can not be leftover more so when the variations are more than 0.3%, which is the prescribed limit of variations. Perusal of both these reports makes it clear that there are variations in the analytical results of both the experts. In PA's Report, B.R reading has been adjudged to the tune of 60 whereas, it has been adjudged by the Director CFL to the tune of 58.9. Likewise in PA's Report Iodine value is to the tune of 109.97 whereas, it is to the tune of 101.7 in the Director CFL's Report.
Saponification value is 169.52 in PA's Report, whereas, it is 174.3 in the Report of Director CFL. Further, in PA's Report, Acid value is to the tune of 1.32 whereas, it is to the tune of 0.97 in the Director CFL's opinion. In CC No. 16/99 DA Vs. Pradeep Kumar Etc. Page 8 of 9 ::9::
PA's Report, B.T.T value is to the tune of 27.3 Deg. C whereas, as per Director CFL's opinion it is to the tune of 24.8 Deg. C. Thus, there are variations in tests results of both the experts which are more than the prescribed limit of 0.3% and these variations casts doubt upon the representative character of the sample commodity.
19. In view of the aforesaid discussion, observation and findings, this court is of the considered opinion that a representative sample was not taken in this case and the benefit of doubt has to be extended to the accused. The accused no. 3 is acquitted in the present case. Ordered accordingly. File be consigned to Records with the directions to preserve it and reopen the same as and when the accused no. 4 is apprehended or arrested.
Announced in the open court (Mohinder Virat)
on 22 February 2013 ACMMII/New Delhi/22.02.2013
nd
CC No. 16/99
DA Vs. Pradeep Kumar Etc. Page 9 of 9