Delhi District Court
In Re vs A-1) Mali Ram on 25 October, 2016
IN THE COURT OF SH. ASHU GARG,
Addl. Chief Metropolitan Magistrate - II (New Delhi),
Patiala House Courts, New Delhi
CC No. 43/99 (39601/16)
Unique Case ID No. 02403R0008391999
Date of Institution: 21.04.1999
Date of reserving judgement: 20.10.2016
Date of pronouncement: 25.10.2016
In re:
Delhi Administration / Food Inspector
Department of PFA,
Govt. of NCT of Delhi
A-20, Lawrence Road Industrial Area,
Delhi-110 035 ... Complainant
versus
A-1) Mali Ram
[Since Discharged]
A-2) Jaggu Mal
[Since Discharged]
A-3) Pawan Kumar
[Since Discharged]
A-4) M/s. Jaggu Mal Agencies
[Since Discharged]
A-5) M/s. Siel Foods & Fertilizer Industries
[Since Discharged]
A-6) Ajay Tandon
[Since Discharged]
CC No. 43/99 Page 1 of 10
A-7) M/s. Suraj Solvent & Vanaspati Industries Ltd.,
Village Khippanwali Tehsil Fazilka
Distt. Ferozpur, Punjab
A-8) S. S. Brar
Village Khippanwali Tehsil Fazilka
Distt. Ferozpur, Punjab ... Accused Persons
JUDGMENT:
1. The present is a complaint filed under section 16 of the Prevention of Food Adulteration Act, 1954 (PFA Act), alleging that the accused persons have violated the provisions of the PFA Act and Rules. The accused no.1 is stated to be the vendor-cum-proprietor of M/s. Saini Provision Store from where the food article, that is, 'Rath Vanaspati' was lifted for sampling. Accused no. 4 is stated to be the Partnership Firm that had supplied the food article to accused no. 1, of which accused no. 2 and 3 were the Partners. Accused no. 5 is stated to be the Supplier Unit that had supplied the food article to accused no. 4, of which accused no. 6 was the Nominee. Accused no. 7 is stated to be the Manufacturing company that had supplied the food article to accused no. 5, of which accused no. 8 happens to be the Nominee. It is pertinent to mention here that the accused no. 1 to 6 have already been discharged and this judgement pertains only to accused no. 7 and 8.
2. As per the complaint, on 05.08.1998, the food officials consisting of Food Inspectors (FI) M. K. Gupta and Bal Mukund under the supervision of Local Health Authority (LHA)/SDM Sh. Arun Mishra reached along with their staff at the premises of M/s. Saini Provision Store at WZ-143, Ring CC No. 43/99 Page 2 of 10 Road Market, Naraina, New Delhi, where the accused no. 1 was found conducting the business of various food articles which were lying stored for sale for human consumption. The FI disclosed his identity and expressed his intention to purchase a sample of 'Rath Vanaspati' from the vendor as lying in originally sealed plastic containers of 2 litres each bearing identical label declaration, to which he agreed. A sample of 3 such sealed containers of 2 litres each was then lifted and divided in three parts as per procedure prescribed under the PFA Act and Rules. Each sample was separately packed, fastened, marked and sealed and necessary documents were prepared at the spot, including the notice as per Form-VI, panchnama etc. The price of sample was paid to the vendor. Thereafter, one counterpart of the sample was sent to the Public Analyst (PA) in intact condition and the other two counterparts were deposited with SDM/LHA. Vide report dated 09.09.1998, the PA found that the sample was not conforming to the standards on the ground that it showed presence of argemone oil. Upon receipt of report, the SDM/LHA ordered investigation which was carried out by FI. FI sent letters to various departments, agencies, accused persons etc. and found that food article had been purchased by accused no. 1 from accused no. 4 firm, of which accused no. 2 and accused no. 3 were the partners. Further, said accused no. 4 had purchased the same from accused no. 5 company, of which accused no. 6 was the Nominee. Also, the product was manufactured/packed by accused no. 7 company, of which accused no. 8 was the Nominee. After completion of investigation, sanction under section 20 of the PFA Act was obtained from the Director PFA. The complaint was then filed in the court on 20.04.1999 against all the accused persons alleging violation of section 2(ia) CC No. 43/99 Page 3 of 10
(a), (b), (c), (f), (h) and (l) of PFA Act, as punishable section 7/16(1A) of PFA Act.
3. As the complaint was filed in writing by a public servant, recording of pre-summoning evidence was dispensed with and the accused persons were summoned vide order dated 21.04.1999. The accused persons appeared and filed an application under section 13(2) of PFA Act thereby exercising the right to get the second counterpart of the sample analysed from the Central Food Laboratory (CFL). The application was allowed and a counterpart was sent for analysis to CFL. The CFL examined the sample and its Director gave Certificate dated 14.06.1999, opining the sample to be adulterated due to presence of argemone oil.
4. Subsequently, an application under section 19(2) of PFA Act was filed which was disposed of vide order dated 19.01.2000 and the benefit of Warranty was granted to accused no. 1 to 6 and they were discharged. Subsequent trial was faced by accused no. 7 and 8 only.
5. Based on the CFL report, pre-charge evidence was recorded wherein the complainant examined PW-1 FI M. K. Gupta. On his version, charge was framed against accused no. 7 and 8 on 21.01.2009 for commission of the offence punishable under section 7/16(1A) PFA Act, being violation of section 2(ia)(a), (b), (c), (e), (h) and (l) of PFA Act, to which they pleaded not guilty and claimed trial. At the trial, the witness was recalled for further cross-examination in post-charge stage, and additionally, the prosecution CC No. 43/99 Page 4 of 10 examined PW-2 FI Bal Mukund and PW-3 Sh. A. K. Mishra in post-charge stage.
6. PW-1 FI M. K. Gupta, PW-2 FI Bal Mukund and PW-3 Sh. A. K. Mishra were part of the team that had visited the spot for sample proceedings. They deposed about the proceedings conducted by them on 05.09.1998 and narrated the steps undertaken by them during the sample proceedings, including disclosing their identity, expressing intention to purchase sample for analysis, lifting the sample of three sealed plastic containers of 2 litres each of 'Rath Vanaspati', dividing it in three parts by treating one sealed container as one counterpart, fastening, sealing, marking the sample counterparts, and obtaining signatures of vendor and witnesses. They also proved the necessary documents including the vendor's receipt Ex. PW-1/A, notice Ex. PW-1/B, panchnama Ex. PW-1/C, notice under section 14-A Ex. PW-1/D, PA Receipt Ex. PW-1/E and LHA receipt Ex. PW-1/F. PA report Ex. PW-1/G was received and investigation was conducted by PW-1. After completion of investigation, sanction Ex. PW-1/M was taken from the Director PFA and the complaint Ex. PW-1/N was filed in the court by PW-1. A copy of PA report with intimation letter Ex. PW-1/O was sent to the accused persons through post vide receipt Ex. PW-1/P. These witnesses were duly cross-examined by Ld. Defence Counsel for accused no. 7 and 8 wherein they denied that the accused persons had been falsely implicated or that a false complaint was filed.
7. Statement of the accused no. 7 (through AR) and 8 under section 313 CrPC was recorded on 15.01.2015 wherein they denied the allegations and CC No. 43/99 Page 5 of 10 pleaded innocence. They expressed ignorance about the sample proceedings as they were not present at the spot. They questioned the PA and CFL reports claiming that the product was as per standards and took stand that there was no restriction on the presence of argemone oil in Vanaspati in 1998. They did not lead any evidence in defence.
8. It is in these circumstances, Ld. SPP for the complainant has argued that the complainant has been able to establish its case against the accused no. 7 and 8 beyond reasonable doubt, on the ground that the accused persons have not been able to rebut the findings of the CFL report dated 14.06.1999 which as per section 13(3) of PFA Act is final and conclusive and has rather corroborated the findings of PA report. It is submitted that all the witnesses have supported its case and no major contradiction can be seen in their testimony. Ld. SPP has argued that the presence of argemone oil would by itself make the food article adulterated, as argemone oil is not an edible oil and irrespective of its percentage in the sample, it would be harmful to human body.
9. On the other hand, Ld. Defence Counsel has submitted that there are various contradictions and missing links in the testimony of witnesses. Ld. Counsel has strongly contended that as per the standards of Vanaspati that existed on the day of sampling, there was no prohibition in presence of argemone oil and that such prohibition was inserted subsequently in 2001 by amending the PFA Rules. It is thus contended that no conviction can be based on such amended rules by giving it a retrospective effect. It is further argued that no percentage of argemone oil has been given by the PA or the CC No. 43/99 Page 6 of 10 CFL and in the absence of its quantity, weight or proportion, it cannot be said that the presence of argemone oil in the sample was such so as to render it injurious to health. It is submitted that the argemone oil may be present only in negligible or minuscule quantity, which was not prohibited. Ld. Counsel has referred to the "Modi's Medical Jurisprudence and Toxicology" and submitted that about 1% of argemone oil is necessary to be called as an adulterant. It is thus argued that the presence of argemone oil in less than 1% quantity would not be injurious to health and therefore, the food article would not be called as adulterated.
10. I have heard the arguments advanced by Ld. SPP for the complainant and Ld. Defence Counsel for the accused persons and have carefully perused the material available on record.
11. The record makes it clear that as far as accused no. 7 and 8 are concerned, they have not disputed the fact that the food article was Vanaspati which falls in Item No. A.19 of the PFA Rules (as it existed at the relevant time). Similarly, it is not disputed that the food article belonged to them and precisely on this basis, the benefit of Warranty was extended to accused no. 1 to 6 and they were discharged.
12. Vanaspati is a standardized food article for which specific standards have been prescribed in Item No. A.19 of Appendix-B of PFA Rules. A bare perusal of the same would show that the words "Test for argemone oil shall be negative" were inserted by way of notification no. G.S.R. 895(E) dated 11.12.2001 (with effect from 11.12.2001). On this point, even the Ld. SPP CC No. 43/99 Page 7 of 10 has accepted that the notification came only in the year 2001 whereby it was specifically stated that the article in question should be free from argemone oil. It is thus an admitted position that on the day when the sample was lifted, that is, 05.09.1998, the standards of vanaspati did not specifically mention that it should be free from argemone oil.
13. In such a case, when the prescribed standards of vanaspati did not specifically mention that argemone oil should be absent in it, the court cannot expect the manufacturers to comply with standards that were yet to be introduced in future, unless of course the quantity of argemone oil was such that would have rendered the article injurious to health.
14. Going by the 'due diligence' concept, it can be said that the manufacturers / packers or vendors at the relevant time were required to comply with the food quality standards as prescribed on the day of manufacturing / packing. They were required to ensure that the nature, substance or quality of the food article was as per the prescribed standards as it existed at that time. They were required to carry out proper tests to ensure that there is no violation of PFA Rules and standards as existed on the day of packing / manufacturing. Therefore, no such manufacturer / packer could have got the food article tested for even negligible quantity of argemone oil, as no such standard was there in PFA Rules at the relevant time. It was only after amendment in 2001 that the presence of argemone oil in the case of vanaspati was totally prohibited and it was only thereafter that the manufacturers / packers are required to ensure that no quantity of argemone oil, howsoever small it may be, is present in vanaspati. Therefore, as per the CC No. 43/99 Page 8 of 10 standards that were applicable at the relevant time, negligible quantity of argemone oil could not be said to be per se violation of PFA Rules. Substantive quality of argemone oil which is poisonous in nature, would have rendered the food article injurious to health and would have been a violation of PFA Rules, but only when such quantity was sufficient to render the food article injurious to health. But in the absence of any percentage of argemone oil, the court cannot assume that the any quantity in the sample was certainly injurious to health. In the absence of any such percentage disclosed, no such inference can be drawn and therefore, there is a missing link in the case, the benefit of which would go to the accused persons.
15. The above view is supported by various judgements which deal with the same food article, that is, vansapati and with respect to the same adulterant, that is, argemone oil. The judgements titled as State v. S. S. Brar [Crl. L.P. No. 30/2013, Delhi High Court dated 23.01.2014], Food Inspector v. Aswani Kumar [Crl. L.P. No. 226/2011 and 227/2011, Delhi High Court dated 13.09.2012], Delhi Administration v. A. K. Bhatia [Crl. L. P. No. 636/2013, Delhi High Court dated 26.02.2014], pertain to the same food article, wherein the Hon'ble High Court of Delhi has been pleased to upheld the orders of acquittal on the ground that there were no standards in case of vanaspati prohibiting argemone oil on the day of lifting of the sample and the notification barring the same came only in the year 2001. It was also accepted that in the absence of any percentage of argemone oil present in the food article, the food article cannot be said to be injurious to health so as to fall within the definition of adulterated food article. The said judgements are CC No. 43/99 Page 9 of 10 squarely applicable to the present case and there is no reason for this court not to accept the law so laid down in the said judgements.
16. Having said so, the accused no. 7 and 8 have to be given benefit of doubt. The prosecution has not been able to establish its case beyond reasonable doubt to the effect that the accused no. 7 and 8 had manufactured or distributed an adulterated food article.
17. Accordingly, accused no. 7 and 8 are acquitted of the charges. However, bail bond of accused no. 8 shall remain in force for the next six months in terms of section 437-A CrPC.
18. File be consigned to record room.
Announced in the open court this 25th day of October 2016 ASHU GARG ACMM-II (New Delhi), PHC CC No. 43/99 Page 10 of 10