Delhi District Court
Karan Singh vs The State on 29 March, 2012
-1-
IN THE COURT OF MS. NEENA BANSAL KRISHNA :
ADDITIONAL SESSIONS JUDGE-01 : NEW DELHI
In re :
CA No. 40/11
Karan Singh
S/o Sh. Mittar Pal,
M/s Aggarwal Sweets Corner,
Shop No. F-1/80, Shani Bazar,
Sunder Nagri,
Delhi-93 ..... Petitioner
versus
The State
[Delhi Administration]
P.F.A. Deptt. A-20,
Lawrence Road Indl. Area,
Delhi. ..... Respondent
Date of institution of the appeal : 04.07.2011
Date of reserving judgment/order : 13.03.2012
Date of judgment / order : 29.03.2012
JUDGEMENT :
1. This appeal u/s 374 Code of Criminal Procedure has been preferred against the judgment dated 27.04.2011 and order on sentence dated 23.05.2011 of Shri Raghubir Singh, Ld. ACMM-II, New Delhi, in complaint case no. 140/06, vide which the appellant has been convicted for offences punishable u/s 16 (1) r/w Section 7 of Prevention of Food Adulteration Act, 1954 (hereinafter referred to as the Act ) and sentenced the appellant to undergo rigorous imprisonment for CA No. 40/11 Page No. 1 of 9 -2- nine months and to pay a fine of Rs.15,000/-, in default to undergo further simple imprisonment for 15 days.
2. The facts in brief as stated in the complaint, are that on 21.12.2005 at about 06.00 p.m., Food Inspector Ms. Usha Kirani purchased a sample of "Paneer" measuring approximately 750 gms from the accused Karan Singh, from his premises i.e. Aggarwal Sweets Corner, Shop No. F-1/80, Shani Bazar, Sunder Nagri, Delhi-93, where the said articles were stored for preparation of the food articles like Samosa, Paneer Pakora, etc. The sample of 750 gms of "Paneer" was taken from a brick of "Paneer" weighing about 1 kg and was cut into smallest pieces with the help of a clean and dry steel knife and thereafter divided into three equal parts, which were put in three separate dry and clean bottles and 20 drops of formaline were added in each bottle. The bottles were separately packed, fastened and sealed as per PFA Rules. One sample was sent to Public Analyst, who gave his report that the sample did not conform to the standard because the moisture exceeds the prescribed maximum limit of 70% and milk fat is less than the prescribed minimum limit of 50%.
3. After completion of the investigations the complaint was filed in the Court. The accused was summoned vide order dated 02.06.2006 and he did not exercise his right and option u/s 13 (2) of the Act.
4. Notice for the violation of the Provisions of Section 2 (ia) (a) & (m) of PFA Act, 1954, punishable u/s 16 (1) (a) of CA No. 40/11 Page No. 2 of 9 -3- the PFA Act, r/w Sec. 7 of PFA Act was served upon the accused, to which he pleaded not guilty and claimed trial.
5. The prosecution in support of its case examined three witnesses namely PW1 Sh. Daya Nand, the then SDM/LHA, PW2 Ms. Usha Kiran, Food Inspector and PW3 Sh. Manohar Lal, Field Assistant.
6. Statement of the accused was recorded u/s 313 Cr.PC in which he pleaded his innocence. Accused examined one defence witness namely Ajay, UDC from the office of Director, CFL.
7. Ld. Trial Court after considering evidence concluded that as per the Public Analyst report the sample was found to be adulterated and that the accused despite being duly served with the Public Analyst report had failed to exercise his right u/s 13 (2) of the PFA Act, therefore, the accused was held guilty for the charges and was sentenced.
8. Aggrieved by the said conviction and sentence, the present appeal has been filed.
9. The ld. Counsel on behalf of the appellants has argued that the sample taken was that of "Paneer", which has a maximum life of five months. In the present case the complaint has been filed on 02.06.2006, while the sample was taken on 21.12.2005. On account of the delay in filing the complaint, the valuable right of the accused u/s 13 (2) has been defeated. Moreover, the sample of "Paneer" which was taken was not admittedly for sale but for making Pakoras etc. and thus, it cannot be said that it was an item for sale. It is CA No. 40/11 Page No. 3 of 9 -4- further argued that no public witnesses have been joined and there is no compliance of Section 10 (7) of the Act. There is also no compliance of Rule 14 and 15 of the PFA Rules. Moreover, the testimony of the witnesses is contradictory to each other, the benefit of which has to be extended to the accused. It is, therefore, argued that the accused is entitled to be acquitted.
10. Ld. Special PP on behalf of the State has argued that in the Public Analyst report the sample of "Paneer" had been found to be adulterated and for this reason the accused has intentionally not exercised his right u/s 13 (2) of the Act and the accused has been rightly convicted.
11. I have heard the arguments and perused the record. My observations are as under :
12. The main argument addressed on behalf of the appellant is in regard to the shelf life of the article i.e. "Paneer". The facts as in hand are similar which were considered in the judgment of Supreme Court in the case of "MCD v. Ghisa Ram, AIR 1967 SC 970". In the said case sample of "Cow Milk" had been taken and the complaint before the Ld. MM had been filed after about a period of seven months. In the said case after relying upon the evidence of the expert, it was noted that the food article like curd start undergoing changes after a week if kept at a room temperature without a preservative but remain fit for analysis for another 10 days thereafter. However, if the sample is kept in a refrigerator, it will preserve its fats and non-fatty acids CA No. 40/11 Page No. 4 of 9 -5- contained for the purpose of analysis for a total period of four weeks. If a preservative is added and the sample is kept at room temperature, the sample can be analyzed for about four months and in case it is refrigerated the sample will be available for analysis without the decomposition for another six months.
13. Likewise, in the case of "Chanan Lal v. State, 1972 FAC 292 (Delhi)", it was observed that a sample of "Khoya", to which formalin is added, can remain fit for analysis for about one month when kept in the refrigerator. If the same is kept at room temperature it remains fit for about 11 to 15 days. In case no formalin is added to the sample then it starts giving slight putrified smell the following day and become decomposed by the 5th day.
14. From the judgments referred above, it is evident that if the sample taken is of milk products then they can be considered fit for analysis upto a maximum of five months that too, if the preservative is added and they are kept in refrigerator.
15. In the present case, PW2 Food Inspector Ms. Usha Kiran has deposed that the formalin had been added to the sample which had been taken from the accused. It is admitted by her in her cross-examination that no ice box was used for sending the counter-part to the Public Analyst. PW1 Sh. Daya Nand, the then SDM/LHA has also admitted in his testimony that the counter-parts of the sample had been kept in his office almirah at room temperature. It is, therefore, an admitted CA No. 40/11 Page No. 5 of 9 -6- case that though formalin was added to the samples, the sample had not been stored in the refrigerator. In the light of the observations made in the case of "Ghisa Ram (supra)", these samples would have thus been fit for analysis only for a period of four months. In the present case, the sample had been lifted on 21.12.005 but the complaint has been filed in the Court only on 02.06.2006 i.e. after 5½ months, which implies that the sample had been rendered unfit for analysis on the request of the accused.
16. In the case of "Ghisa Ram (supra)" as well as there was a delay of about seven months in filing the complaint. It was noted that the report of the Public Analyst is also an evidence and can be a basis for conviction of the accused. At the same time, the right u/s 13 (2) of the Act is a valuable one because the certificate of the Director supersedes the report of the Public Analyst and is treated as a conclusive evidence of its context. Therefore, in all such cases where the right of the vendor to have a sample test from the Director, CFL, is frustrated on account of the conduct of the prosecution, which resulted in denial to the vendor of the opportunity to exercise this right, then the benefit has to be extended to the accused.
17. In the present case, there is also a delay on the part of the prosecution in filing the complaint after about 5½ months which has resulted in the frustrated of the right of the accused u/s 13 (2) for which the benefit has to be extended to the accused.
CA No. 40/11 Page No. 6 of 9 -7-18. The ld. counsel for the appellant has further argued that there has been non-compliance of Rule 14 of the Rules in so much as the precautions as are required for taking the sample has not been observed by the Food Inspector.
19. Rule 14 of the PFA Rules reads as under :
"Rule 14 - Manner of sending sample for analysis - Samples of food for the purpose of analysis shall be taken in clean dry bottles or jars or in other suitable containers which shall be closed sufficiently tight to prevent leakage, evaporation or in the case of dry substance, entrance of moisture and shall be carefully sealed."
20. Ms. Usha Kiran, Food Inspector, has deposed that she had taken the sample of 750 gms of "Paneer" from a brick about 1 kg and cut it into smallest pieces with a steel knife and put it in a clean and stainless steel tray, which was provided by the vendor and had properly mixed the pieces with the same knife. However, in her cross-examination has admitted that the said knife had been provided to her by the vendor. She had also deposed that the sample "Paneer" had been put on a butter paper in a pan scale for weighing. Likewise, PW3 Field Assistant has deposed in his cross-examination that the "Paneer" was weighed by Food Inspector by putting it on a butter paper. It was also admitted that the "Paneer" was put into another clean and dry tray provided by the vendor and the tray was already clean and dry, therefore, the same was not made again clean and dry at the spot. Likewise, the bottles CA No. 40/11 Page No. 7 of 9 -8- used for sealing the sample were deposed to be already clean and dry and were not made clean and dry again on the spot.
21. PW1 Sh. Daya Nand, however, had admitted in his cross-examination that the "Paneer" was weighed in the pan scale after being put in a polythene.
22. From the testimony of prosecution witnesses, it is apparent that the knife which was used for giving the sample had been provided by the vendor, tray which was used for mixing the sample was also provided by the vendor. Furthermore, neither the steel tray nor the bottles in which the samples were taken were cleaned on the spot.
23. In the case of "Sibanath Singh v. State of Assam, 2002 (1) FAC 166 Gauhati High Court" it was observed that when the law requires a certain thing to be done in a certain way that thing must be done in that manner.
24. In the case of "Gangadhar Yeshwant Ramekar v. Mukeshbhai Shah & Ors., 1999 (2) FAC 9" has observed that whether the containers were not clean and had been taken from the shop of the accused then it was non-compliance of Rule 14 and the benefit of the same has to be given to the accused. Similarly, in the case of "State of Gujarat v. Rajendra Tulsidas & Ors., 2011(2) FAC 299, Gujarat High Court", the Food Inspector had admitted that the closed bottles in which the samples were kept, had not been cleaned and tried by himself nor were they cleaned and dry under his supervision. It was held that the mandatory requirement of Rule 14 had not been complied.
CA No. 40/11 Page No. 8 of 9 -9-25. Similar were the observations in the case of "MCD v. Diwan Chand & Anrs., 1975 FAC 281 Delhi High Court", wherein again similar conclusions have been drawn where the bottles had not been cleaned by the Food Inspector on the spot.
26. In the case of "State of Maharashtra v.
Bhaskar Rajeshwar Gangshettiwar & Ors., 2004 (1) FAC 13 Bombay High Court", again the benefit had been extended to the accused wherein the bottles in which the sample had been taken were not cleaned on the spot.
27. In the present case as well there is no strict compliance of Rule 14, which is mandatory and the possibility of the adulteration being introduced on account of faulty sampling cannot be ruled out. The benefit of the same has to be extended to the accused.
28. In view of the above discussion, the appeal is hereby allowed. Conviction is set aside and the appellant is acquitted. Bail-bond and surety bond stand discharged.
29. Trial Court Record be sent back alongwith the copy of this order.
30. Appeal file be consigned to the Record Room. Announced in the open Court on this 29th Day of March,2012.
(Neena Bansal Krishna) ASJ-01/PHC/New Delhi CA No. 40/11 Page No. 9 of 9